SUDHAKAR @ SUDHARASANversusSTATE REP. BY THE INSPECTOR OF POLICE, SRIRANGAM POLICE STATION, TRICHY, TAMIL NADU

612                      [2018]REPORTS
               SUPREME COURT    4 S.C.R. 612                 [2018] 4 S.C.R.


A                       SUDHAKAR @ SUDHARASAN
                                         v.
       STATE REP. BY THE INSPECTOR OF POLICE, SRIRANGAM
              POLICE STATION, TRICHY, TAMIL NADU
B                       (Criminal Appeal No. 381 of 2018)
                                 MARCH 12, 2018
              [N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
             Penal Code, 1860 – s.302 – Prosecution case that appellant
      was found strangulating the neck of his grandmother with his hands
C
      – P.W-1(son-in-law of deceased), who was sleeping in the adjoining
      room, upon hearing the screams of the deceased, rushed to her and
      witnessed the crime being committed – Appellant then took money
      bag from the possession of the deceased and fled away from the
      spot – Accused was arrested next day at bus stand, in presence of
D     PWs 11 and 12 – Appellant-accused convicted by the trial Court
      and conviction affirmed by the High Court – On appeal, held:
      Conviction by the Courts below suffers from patent error of law –
      PWs 11 and 12 in their examination-in-chief denied the prosecution
      story about their presence at the time of arrest and seizure of material
      objects from the possession of the accused and they turned hostile
E
      – Prosecution case rested on evidences of PW 1 and his wife (PW
      5) who were closely related to the accused-appellant – The relations
      between accused-appellant and PWs 1 & 5 were strained over
      property issues and they were in inimical terms – As the prosecution
      has relied upon the evidence of interested witnesses, the Court has
F     to be cautious while analyzing such evidence – Other than these
      witnesses, there were no independent witnesses to support the case
      of prosecution – Nothing on record to support the version of PWs 1
      & 5 – It was on record that when the deceased was brought to the
      hospital, in the accident register, it was written as ‘history of fall’ –
      According to prosecution blood came out from the mouth and nose
G
      of the deceased, but there appears no seizure of bloodstained clothes
      of the deceased and chemical analysis – There was inconsistency
      in evidence by the alleged eyewitnesses as well as investigation
      agency – Thus, there exists reasonable doubt in instant case as the
      case of prosecution is un-supported by independent witnesses,
H
                                        612
      SUDHAKAR @ SUDHARASAN v. STATE REP. BY                         613
               THE INSP. OF POLICE

ridden with contradictions, good motive for false prosecution and    A
filled with suspicious circumstances.
       Allowing the appeal, the Court
       HELD: 1. The whole basis for the Courts below to convict
the accused appears to be the version of the prosecution that the
accused was arrested next day at about 11 a.m. at bus stand, in      B
presence of PWs 11 and 12, and brushed aside the plea of alibi
presented by the accused with due support by the evidence of
DW1. It is worthwhile to note that both of these witnesses (PWs
11 & 12) in their examination-in-chief denied the prosecution
story about their presence at the time of arrest and seizure of
material objects from the possession of the accused and they         C
turned hostile. This fact casts serious doubts on the veracity of
prosecution story about the arrest of the accused. [Para 14] [619-
C-D]
       2. Admittedly, at the time of alleged incidence, PW 5 (wife
of PW1) and PW 6 (son of PWs 1 & 5) were not present near the        D
alleged scene of offence. As regards the evidences of independent
witnesses (PWs 2, 3 and 4), who were residents of the same street
as that of the deceased and who were examined as ocular
witnesses, PW 2 (tenant of PW 5) turned hostile and did not
support the prosecution case. Another shortfall in the prosecution   E
case is that PW1 deposed that he gave oral complaint to police,
but a contrary statement was put forth by PW15—I.O. stating
that he got a written complaint from PW1. [Para 15] [619-C-D, G]
      3.1 From the stated facts, it emerges that the entire
prosecution case rests on the evidences of PWs 1 and 5 who are
closely related to the accused—appellant. The accused is none        F
other than the son of PW 5’s brother and PW 1 is the husband of
PW5 and PW6 is the son of PWs 1 & 5. Clearly, the relations
between the accused—appellant and PWs 1 & 5 were strained
over property issues and they were in inimical terms. Apparently,
there was also a civil suit pending between them for partition of    G
properties. [Para 16] [619-H; 620-A-B]
      3.2 It is settled law that there cannot be any hard and fast
rule that the evidence of interested witness cannot be taken into
consideration and they cannot be termed as witnesses. But, the
only burden that would be cast upon the Courts in those cases is     H
614            SUPREME COURT REPORTS                     [2018] 4 S.C.R.


A     that the Courts have to be cautious while evaluating the evidence
      to exclude the possibility of false implication. Relationship can
      never be a factor to affect the credibility of the witness as it is
      always not possible to get an independent witness. [Para 17]
      [620-E]
B           3.3 Then, next comes the question ‘what is the difference
      between a related witness and an interested witness?’. The plea
      of “interested witness”, “related witness” has been succinctly
      explained by this Court that “related” is not equivalent to
      “interested”. The witness may be called “interested” only when
      he or she derives some benefit from the result of a litigation in
C     the decree in a civil case, or in seeing an accused person punished.
      In this case at hand PW 1 and 5 were not only related witness,
      but also ‘interested witness’ as they had pecuniary interest in
      getting the accused petitioner punished. As the prosecution has
      relied upon the evidence of interested witnesses, it would be
D     prudent in the facts and circumstances of this case to be cautious
      while analyzing such evidence. Other than these witnesses, there
      are no independent witnesses available to support the case of
      the prosecution. [Para 18] [620-F-H]
            4. There is nothing on record to support the version of PWs
E     1 & 5 that on earlier occasions also and particularly on the date
      of incident, the accused quarreled with his grandmother
      demanding money and to settle the house in his favor. Further, it
      is on record that when the deceased was brought to the hospital,
      in the Accident Register, it was written as ‘history of fall’.
      According to the prosecution’s case, blood came out from the
F     mouth and nose of the deceased, but there appears no seizure of
      bloodstained clothes of the deceased and chemical analysis. Thus,
      the inconsistent evidence by the alleged eyewitnesses as well as
      investigation agency would cause dent to the edifice on which
      the prosecution case is built, and it adversely affects the
G     substratum of the prosecution case. [Para 19] [621-A-C]
            5. There exists reasonable doubt in this case as the case of
      prosecution is un-supported by independent witnesses, ridden
      with contradictions, good motive for false prosecution and filled
      with suspicious circumstances. Further, there is not only
H     insufficiency of evidence but also lack of credibility on the
       SUDHAKAR @ SUDHARASAN v. STATE REP. BY                                615
                THE INSP. OF POLICE

trustworthiness of PWs 1 & 5 which culminated into disproving                A
the prosecution case and alleged guilt of the accused. The
prosecution has, therefore, failed to establish the guilt of the
accused-appellant beyond reasonable doubt by adducing cogent
evidence. [Para 22] [622-B-C]
      Sarwan Singh v. State of Punjab (1976) 4 SCC 369;                      B
      State of U.P. v. Kishanpal and Ors. (2008) 16 SCC 73 :
      [2008] 11 SCR 1048; Latesh v. State of Maharastra
      2018 (3) SCC 66 – referred to.
                        Case Law Reference
(1976) 4 SCC 369                  referred to              Para 17           C

[2008] 11 SCR 1048                referred to              Para 18
(2018) 3 SCC 66                   referred to              Para 21
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
381 of 2018.                                                                 D
      From the impugned Judgment and Final Order dated 23.01.2015
passed by the Madurai Bench of Madras High Court in Criminal Appeal
No.(MD) No.298 of 2013.
      Thomas Franklin Caesar, S. Gowthaman, Ms. M. Venmani,
Ms. S. Amali, Advs. for the Appellant.                                       E

      M. Yogesh Kanna, Ms. Sujatha Bagadhi, Advs. for the Respondent.
      The Judgment of the Court was delivered by
      N. V. RAMANA, J. 1. Leave granted.
                                                                        rd   F
       2. This appeal has been preferred against the judgment dated 23
January, 2015 passed by the Madras High Court, Bench at Madurai in
Criminal Appeal (MD) No. 298 of 2013 whereby the High Court concurred
with the judgment of the trial court and dismissed the appeal preferred
by the appellant—accused against his conviction under Section 302 IPC.
                                                                             G
       3. Facts of the case in brief, as advanced by the prosecution, are
that the appellant herein is a habitual drunkard and used to live opposite
to his grandmother’s house and always indulged in quarreling
                                                        th
                                                                  with her
demanding money. The incident has taken place on 17 January, 2013 at
about 6.30 p.m. The appellant was found strangulating the neck of his
grandmother, namely, Mariyayee (deceased) with his hands. One                H
616            SUPREME COURT REPORTS                          [2018] 4 S.C.R.


A     Jayaraj—PW1 (son-in-law of the deceased), who was sleeping in the
      adjoining room, upon hearing the screams of the deceased, rushed to her
      and witnessed the crime being committed by the accused on his
      grandmother. The appellant then took surukupai (money bag) from the
      possession of the deceased and fled away from the spot.
B           4. Jayaraj—(PW 1) then hired an auto and took his mother-in-law
      to ABC hospital while informing about the incident to his wife Maruthayee
      (PW5) over phone, PW5 in turn also reached the hospital. The patient
      was admitted in the hospital at 7.30 p.m. and Dr. Mohammed Ghouse
      Khan (PW8) examined her and found that she was conscious but restless.
      However, Mariyayee had passed away at 7.55 p.m. Jayaraj (PW 1)
C     lodged complaint at Srirangam Police Station at about 11.30 p.m. and
      basing on the same, Crime No. 22 of 2013 was registered against the
      appellant. PW15—Inspector of Police (Balusamy) sent the FIR (Ext.P12)
      to Court and inspected the place of occurrence. Subsequently, other
      formalities such as preparation of observation mahazar (Ext. P2), drawing
D     of rough sketch (Ext. P13), holding of inquest were carried on and the
      body of the deceased was sent for postmortem. Meanwhile, the
      accused—appellant was taken into custody and after recording his
      confessional statement, police recovered surukupai (money bag) from
      his possession (M.O. 1).
E            5. Postmortem on the dead body of deceased Mariyayee was
      conducted by Dr. RVS Renuga Devi (PW 9) who found linear abrasions
      of varying lengths and contusion on the front of neck, fracture of thyroid
      cartilage and tracheal rings, bruising of anterior chest wall, fracture of
      left collar bone and manubrium stemi transversely at the level of 4th rib
      attachment with surrounding area bruising. Doctor expressed her opinion
F     that the deceased appears to have died of compression of neck and
      chest wound.
            6. The appellant—accused denied the charge of committing the
      offence and claimed to be tried. In order to bring home the guilt of the
      accused, prosecution has examined as many as 15 witnesses and marked
G     16 exhibits. While so, the accused in his defence examined his mother-
      in-law, Mala as DW1 and marked no documents. There were however
      two material objects, one is the surukupai (money bag) and the other is
      an amount of Rs.140/-, both have allegedly been recovered from the
      possession of the accused.
H
        SUDHAKAR @ SUDHARASAN v. STATE REP. BY                                   617
          THE INSP. OF POLICE [N. V. RAMANA, J.]

       7. The trial court relying upon the evidences of prosecution              A
witnesses, particularly PWs 1 and 5, came to the conclusion that often
the accused used to quarrel with the deceased for fulfilling his demands
of money and had the motive to commit the offence. In pursuance thereof,
the accused came to the house of the deceased and strangulated her
neck and then pushed her down, hence the deceased suffered asphyxia
                                                                                 B
and injuries on her chest wall and ribs. It further held that medical evidence
on record clearly establishes that the deceased had died due to
compression of neck and chest wounds. Therefore, the trial Court held
that the trivial contradictions in the evidence of the witnesses will not
affect the prosecution case and the appellant—accused was guilty of
the offence of murder. The trial Court accordingly convicted the accused         C
under Section 302, IPC and sentenced him to undergo life imprisonment
and to pay a fine of Rs.1,000/-, in default, to further suffer rigorous
imprisonment for a period of six months.
      8. The aggrieved appellant approached the High Court in appeal
which came to be dismissed with the observation that the conviction and          D
sentence imposed by the learned trial judge is in consonance with the
penal provisions and does not suffer from any infirmity. Hence, the
accused is before us by way of this appeal.
      9. We have heard learned counsel for the parties and perused the
material on record.                                                              E
       10. Learned counsel appearing for the accused—appellant
emphatically contended that the courts below have erred in convicting
the appellant even though prosecution case was full of material
irregularities and inconsistent depositions by the witnesses. The counsel
pointed out that the Courts below committed manifest error while                 F
disbelieving the defence of alibi of the appellant that at the relevant time,
the accused was not there at his grandmother’s house but he was in his
mother-in-law’s house and police took him for enquiry from there on
17.1.2013 at 11 pm. The counsel submitted that the prosecution has not
successfully established the motive part also. But the Courts below laid
basis on exaggerated versions of prosecution witnesses and convicted             G
the appellant. All the prosecution witnesses, particularly PW 1 and PW
5, are interested witnesses as they had developed grudge on the family
of the appellant in connection with sharing of properties and they want
to get rid of him as they intend to grab the property of appellant. With
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618            SUPREME COURT REPORTS                          [2018] 4 S.C.R.


A     that view in mind, PWs 1 and 5 implicated the accused in the offence
      which would disentitle him to inherit the joint family property.
             11. It was further argued that there was no independent witness
      to the alleged crime and there was no satisfactory explanation for the
      delay in lodging complaint under Ext. P.1 and the delay in FIR reaching
B     to the Judicial Magistrate. PWs 2, 3, 4 who were said to be the
      eyewitnesses, did not support the case of prosecution. It is also contended
      by the learned counsel that it was evidently represented by PW5—
      daughter of the deceased at the hospital that her mother (deceased) had
      fallen down in the house and therefore she was suffering from
      breathlessness, the said statement is duly authenticated with the Accident
C     Register (Ext. P3) where it is mentioned as ‘history of fall’. But later on
      before Court, PW5 denied of having said so and improved her statement
      thereby implicating the appellant in the crime. More stress has been laid
      on the aspect that as per postmortem report, on the body of the deceased,
      there were fractures over the rib and left collar bone as well as over
D     manuburium sterni, which does not support the case of strangulation but
      supports the case of fall as stated by PW5 to the Doctor. Concluding his
      arguments, learned counsel submitted that despite all the discrepancies
      in the prosecution case, the Courts below went ahead and convicted the
      appellant and the judgment deserves to be set aside by this Court.
E            12. While advancing his arguments, learned counsel appearing
      for the State submitted that no case is made out by the appellant seeking
      interference of this Court while both the Courts below concurrently found
      him guilty. According to him, the accused, being a habitual drunkard,
      often used to quarrel with his grandmother (deceased) for money and
      for transfer of property. On the day of incident also, the accused picked
F     up a quarrel with the deceased at about 11 am and PW1 sent him away
      peacefully. But in the evening, while PW1 was asleep in the house, the
      accused again entered and committed the offence. The trial Court and
      High Court had rightly relied upon the consistent and categorical evidence
      of PW1, who happened to be the eyewitness to the incident, coupled
G     with the corroboration of medical evidence, and by way of a reasoned
      order, convicted the accused. The recovery of surukupai (money bag)
      from the possession of the accused substantiates the commission of
      crime and the case of the prosecution. Though the accused tried to put
      forward the defence of alibi through DW1, the defence could not succeed
      in its effort and they did not put a single query or suggestion to the
H
       SUDHAKAR @ SUDHARASAN v. STATE REP. BY                                  619
         THE INSP. OF POLICE [N. V. RAMANA, J.]

Investigating Officer in their endeavor to ascertain that the accused          A
was picked up by the police from the house of DW1 and to falsify the
prosecution case that the accused was arrested from the bus stand.
      13. On a careful consideration of the matter in the light of
submissions made on either side and after perusing the material available
on record, the issue that falls for consideration is “whether both the         B
Courts below were right in convicting the accused for the offence
punishable under Section 302, IPC.”
       14. The whole basis for the Courts below to convict the accused
appears to be the version of the prosecution that the accused was arrested
on 18.1. 2013 at about 11 a.m. at bus stand, in presence of PWs 11 and         C
12, and brushed aside the plea of alibi presented by the accused with
due support by the evidence of DW1. It is worthwhile to note that both
of these witnesses (PWs 11 & 12) in their examination-in-chief denied
the prosecution story about their presence at the time of arrest and seizure
of material objects from the possession of the accused and they turned
hostile. This fact casts serious doubts on the veracity of prosecution         D
story about the arrest of the accused.
       15. Admittedly, at the time of alleged incidence, PW 5 (wife of
PW1) and PW 6 (son of PWs 1 & 5) were not present near the alleged
scene of offence. As regards the evidences of independent witnesses
(PWs 2, 3 and 4), who were residents of the same street as that of the         E
deceased and who were examined as ocular witnesses, PW 2 (tenant of
PW 5) turned hostile and did not support the prosecution case. He
deposed that on 17.1.2013 at 7 pm when he found some crowd in front
of the house of deceased he rushed there and found the deceased in
unconscious condition. Then, he along with PWs 3 and 4 took the                F
deceased to Srirangam Government Hospital and informed the same to
PWs 1 & 5, they asked them to bring the deceased to ABC Hospital
where PWs 1 & 5 joined them later on. In his cross examination, he
stated that PW 1 was not present in Srirangam on the date of incident.
PWs 3 and 4 also turned hostile and similar statements were made by
them also. Another shortfall in the prosecution case is that PW1 deposed       G
that he gave oral complaint to police, but a contrary statement was put
forth by PW15—I.O. stating that he got a written complaint from PW1.
      16. From the above stated facts, it emerges that the entire
prosecution case rests on the evidences of PWs 1 and 5 who are closely
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620             SUPREME COURT REPORTS                          [2018] 4 S.C.R.


A     related to the accused—appellant. The accused is none other than the
      son of PW 5’s brother and PW 1 is the husband of PW5 and PW6 is the
      son of PWs 1 & 5. Clearly, the relations between the accused—appellant
      and PWs 1 & 5 were strained over property issues and they were in
      inimical terms. Apparently, there was also a civil suit pending between
      them for partition of properties.
B
            17. It would be appropriate to have a look at the legal position
      with regard to the evidence of related and interested witnesses. In
      Sarwan Singh v. State of Punjab, (1976 (4) SCC 369), para 10, this
      Court observed thus:
C           “….. 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 interested witnesses have a
            ring of truth such evidence could be relied upon even without
D           corroboration.”
            It is settled law that there cannot be any hard and fast rule that
      the evidence of interested witness cannot be taken into consideration
      and they cannot be termed as witnesses. But, the only burden that would
      be cast upon the Courts in those cases is that the Courts have to be
E     cautious while evaluating the evidence to exclude the possibility of false
      implication. Relationship can never be a factor to affect the credibility of
      the witness as it is always not possible to get an independent witness.
              18. Then, next comes the question ‘what is the difference between
      a related witness and an interested witness?’. The plea of “interested
F     witness”, “related witness” has been succinctly explained by this Court
      that “related” is not equivalent to “interested”. The witness may be called
      “interested” only when he or she derives some benefit from the result of
      a litigation in the decree in a civil case, or in seeing an accused person
      punished. In this case at hand PW 1 and 5 were not only related witness,
G     but also ‘interested witness’ as they had pecuniary interest in getting the
      accused petitioner punished. [refer State of U.P. v. Kishanpal and Ors.,
      (2008) 16 SCC 73]. As the prosecution has relied upon the evidence of
      interested witnesses, it would be prudent in the facts and circumstances
      of this case to be cautious while analyzing such evidence. It may be
      noted that other than these witnesses, there are no independent witnesses
H     available to support the case of the prosecution.
        SUDHAKAR @ SUDHARASAN v. STATE REP. BY                                   621
          THE INSP. OF POLICE [N. V. RAMANA, J.]

        19. Now, it would be appropriate to consider whether the Courts          A
below exercised the judicial discretion in evaluating the evidence of PW1
and PW5 while convicting the accused. It may be noted that there is
nothing on record to support the version of PWs 1 & 5 that on earlier
occasions also and particularly on the date of incident, the accused
quarreled with his grandmother demanding money and to settle the house
                                                                                 B
in his favor. Further, it is on record that when the deceased was brought
to the hospital, in the Accident Register, it was written as ‘history of
fall’. According to the prosecution’s case, blood came out from the mouth
and nose of the deceased, but there appears no seizure of bloodstained
clothes of the deceased and chemical analysis. Thus, the inconsistent
evidence by the alleged eyewitnesses as well as investigation agency             C
would cause dent to the edifice on which the prosecution case is built,
and it adversely affects the substratum of the prosecution case.
       20. We further find, to a certain extent, material infirmities,
irregularities and contradictions in the prosecution case as also in the
evidence of prosecution witnesses including the deposition of PWs 1 &            D
5, who are material witnesses. PW 1 in his cross examination categorically
stated that his wife (PW 5) has filed a suit for partition against the accused
and his family members whereas PW 5 in her cross examination denied
the same. Likewise, there are contradictory statements of witnesses,
primarily to the aspect of happening of incident, taking the victim to the
hospital, the presence of PW1 at the time of alleged incident, detaining         E
the accused from bus stand or from his mother-in-law’s house, recovery
of material objects from the possession of accused and lodging of
complaint by PW1 etc, and the whole story appears to be an utterly
incredible one. More so, there was no explanation forthcoming from the
prosecution side on the questions raised by the defense that soon after          F
reaching the ABC hospital with victim, how can the PWs 1 & 5 directly
approach Dr. Mohammed Ghouse Khan (PW8) without going to
Emergency Ward and why the Doctors at ABC hospital did not inform
police when it was a medico legal case. Both the Courts below have
simply noted that the variations and contradictory statements are not
material in proving the guilt of the accused. We feel that the reasoning         G
given by the Courts below is ex facie illegal.
      21. This Court in Latesh V. State of Maharastra [Criminal Appeal
No. 1301 of 2015, decided on January 30, 2018] has explained that the
reasonable doubt in a lucid manner as a mean between excessive caution
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622                SUPREME COURT REPORTS                        [2018] 4 S.C.R.


A     and excessive indifference to a doubt. Moreover, it has been explained
      that reasonable doubt should be a practical one and not an illusory
      hypothesis.
             22. In view of the above discussion, we are of the view that there
      exists reasonable doubt in this case as the case of prosecution is un-
B     supported by independent witnesses, ridden with contradictions, good
      motive for false prosecution and filled with suspicious circumstances.
      Further we are of the considered opinion that there is not only
      insufficiency of evidence but also lack of credibility on the trustworthiness
      of PWs 1 & 5 which culminated into disproving the prosecution case
      and alleged guilt of the accused. The prosecution has, therefore, failed
C     to establish the guilt of the accused-appellant beyond reasonable doubt
      by adducing cogent evidence. We are satisfied that the Courts below
      completely misdirected themselves and the conviction imposed upon the
      accused by the trial Court and confirmed by the High Court suffers
      from patent error of law and perversity of approach and deserves to be
D     set aside.
            23. Resultantly, the appeal is allowed and the impugned judgment
      passed by the High Court is set aside. The appellant is stated to be in jail.
      He shall be set free forthwith unless required in any other case. Pending
      applications, if any, shall also stand disposed of.
E
      Ankit Gyan                                                     Appeal allowed.




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