Supreme Court of India
STATE REP. BY INSPECTOR OF POLICE, TIRUCHYversusRETTAIMANDAIYAN @ MURUGAN
- Citation
- 2008 INSC 1056
- Decided
- 18 September 2008
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The High Court erred in discarding the eye‑witness testimony merely because the dying declaration was found unreliable; each evidence must be evaluated independently.
Summary
The case arose from the murder of Mathappan after a quarrel, where several accused were alleged to have attacked him and his family. The trial court convicted the accused based on the testimony of two eye‑witnesses (the deceased’s wife and daughter) and a dying declaration recorded by a Sub‑Inspector. The Madras High Court set aside the conviction, holding that the dying declaration was not credible and, consequently, discarding the eye‑witness evidence, leading to the acquittal of the accused. The State appealed, arguing that the High Court had no authority to reject the eye‑witness testimony merely because the dying declaration was found unreliable. The Supreme Court held that each piece of evidence must be examined on its own merits and that the High Court erred in discarding the eye‑witness evidence without identifying any specific deficiency. Accordingly, the appeal was allowed and the matter remitted to the High Court for a fresh consideration of the eye‑witness testimony.
Issues considered
- Whether the High Court could discard the testimony of eye‑witnesses solely on the ground that the dying declaration was not credible
- Whether the credibility of eye‑witness evidence must be assessed independently of the dying declaration under the Evidence Act
- Whether the appellate court erred in not providing reasons for rejecting the eye‑witness evidence
Legislation cited
- Indian Evidence Act, 1872s. 3, s. 32
Subjects
murderdying declarationeye‑witness testimonycredibilityevidenceconvictionacquittalappellate reviewEvidence Act
Judgment
[2008] 13 S.C.R. 632
A STATE REP. BY INSPECTOR OF POLICE, TIRUCHY
v
RETTAIMANDAIYAN @ MURUGAN
(Criminal Appeal No. 656 of 2002)
SEPTEMBER 18. 2008
B
[OR ARIJIT PASAYAT AND HARJIT SINGH BED!, JJ.]
Evidence Act, 1872 - ss. 3 and 32 - Evidence of eye-
witnesses - Reliance upon - Murder of deceased and injury
c to other over a quarrel - Conviction on basis of evidence of
eye-witnesses and dying declaration - However, acquittal by
High Court since evidence of eye-witnesses had to be dis-
carded as dying declaration could not be believed -
Sustainability of - Held: Not sustainable - High Court should
"' .
not have discarded the evidence of eye witnesses without in-
D
dicating any reason as to its deficiency - It did not discuss the
evidence of prosecution witnesses independently to test its
credibility - Hence, matter remitted to High Court for fresh
consideration.
E According to the prosecution case, there was a ver-
bal quarrel between M's family members and A-1. On the
fateful day, A-1 alongwith his family members and friend,
armed with weapons went to the house of M. They injured
M with aruval, spear and stick. M's wife-PW-1 and daugh-
~·
F ter-PW-3 also sustained injuries. M became unconscious
and was taken to the hospital. M stated to the doctor that
he sustained injuries at the hands of 8 to 10 known per-
sons. PW.11-Sub Inspector of Police recorded the state-
ment of M in writing and obtained his signature. He also
examined P.W.-1 to 3. FIR was registered uls. 147, 148,
G
341, 324 and 323 !PC. Thereafter, M died. The offence was
altered to one uls. 302 !PC. Trial court convicted and sen-
;-
tenced the accused persons, relying on the evidence of
eye-witnesses PW-1 and 2 and the dying declaration. How-
H 632
STATE REP. BY INSPECTOR OF POLICE, TIRUCHY v. 633
RETTAIMANDAIYAN@ MURUGAN
ever, High Court holding that the evidence of eye-wit· A
nesses had to be discarded because the dying declara·
tion could not be believed, acquitted the accused. Hence,
the present appeal.
Allowing the appeal and remitting the matter to the
High Court, the Court B
HELD: The only reason indicated by the High Court
to discard the evidence of the eye witnesses is that the
dying declaration had been discarded. Even if that be so,
without indicating any reason as to what deficiency was c
there in the evidence of eye witnesses, the High Court
should not have discarded their evidence. Nowhere it has
been recorded by the High Court that the eye witnesses's
evidence was in any way deficient. That being so, the judg·
ment of the High Court is notsustainable. Since the High
- ... Court has not discussed the evidence of PWs. 1 and 2
D
independently to test whether it has credibility or not, it
would be appropriate to remit the matter to the High Court
to consider the matter afresh and examine whether for
any reason the evidence of PWs 1 and 2 need to be dis-
carded. [Para 5) [637 C-E] E
CRIMINALAPPELLATEJURISDICTION: CriminalAppeal
No. 656 of 2002
:. -1 From the Judgment and final Order dated 12.4.2001 of
the High Court of Judicature at Madras in Crl. Appeal No. 617 F
of 1994
S. Thananjayan and V.G. Pragasam (N.P.) for the Appel-
lant.
Subramonium Prasad (N.P.) for the Respondent. G
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. These two appeals have been
filed by the State of Tamil Nadu questioning correctness of the
judgment rendered by a Division Bench of the Madras High H
634 SUPREME COURT REPORTS [2008] 13 S.C.R.
A Court directing acquittal of seven accused persons who had
filed four appeals questioning the conviction as recorded by
the learned llnd Additional sessions Judge, Tiruchirapalli Divi-
sion at Tiruchy in Sessions Case No.68/92. These two appeals
relate to A-2 and A-7. Seven persons faced trial for alleged
B commission of several offences punishable under Indian Penal
Code, 1860 (in short 'IPC'). Following charges were framed by
learned Sessions Judge against the accused persons:
(i) 148 IPC A-1, A-3 and A-6
(ii) 1471PC A-2, A-4, A-5 and A-7
c
(iii) 302 IPC A-1 and A-3
(iv) 302 r/w 149 IPC A-2, A-4 and A-7
(v) 324 IPC A-6
D (vi) 324 r/w 149 IPC A-1, A-5 and A-7
• -
(vii) 323 IPC A-7
(viii) 323 r/w 149 IPC A-1 to A-6
2. The prosecution version as unfolded during trial is as
E follows:
PW-1 is the widow of Mathappan (hereinafter referred to
as the 'deceased'). She resides at Mudakkupatti which is situ-
ated within the limits of Tiruchirapalli Corporation. The deceased
was carrying on business as a fish vendor. PWs 2 and 3 are the
F daughters of PW-1 and the deceased. PW-2 resides three
houses away from the house of P.W.1 along with her husband.
All the accused reside at Mudukkupatti. A2 is the brother of Al.
A5 is the wife of Al. A3, A4 and A6 are brothers. A 7 is the friend
of Al to A6. The occurrence took place on 23.6.1991. One week
G prior to the date of occurrence, around 1.30 p.m., P.W.3 went to
collect water from a public water tank. At that time Al came in a
cycle and teased her. P.W.3 informed about this to the deceased
and the deceased in turn questioned Al. At 6.00 p.m. on
22.6.1991, Al was coming in a cycle with a load of arrack. When
H he was passing the house of P.W.2, he had a fall, during which
STATE REP. BY INSPECTOR OF POLICE, TIRUCHY v. 635
RETTAIMANDAIYAN@ MURUGAN [DR. ARIJIT PASAYAT, J.]
time, the front wheel of the cycle hit against the daughter of P.W.2. A
On seeing this, P.W.2 scolded A 1, which was followed by a
wordy quarrel between PW.2 and A 1. On coming to know about
this, the deceased and P.W.1 went to that place. P.W.2 nar-
rated to them as to what happened. On hearing this, the de-
ceased reprimanded A 1 for his improper conduct. B
At 7.30 p.m. on 23.6.1991, the deceased, P.Ws 2 and 3
were all watching the television in their house. At that time A 1
and AS came there and standing opposite to the house of P.W.1,
challenged the deceased to come out. Accordingly, the de-
ceased came out of the house, followed by P.Ws 1, 2 and 3. A2 C
to A4, A6 and A7 were also there at that time. A1 was armed.
with suluki, while A3 and A6 were each armed with an aruval.
A4 looking at the deceased, asked him as to why he is often.
inviting trouble and saying so, he caught hold of his right hand.
A2 caught hold of his left hand. AS induced others to stab him D
without wasting any further time. Immediately A1 stabbed on
the stomach of the deceased with suluki, followed by A3, with
an aruval cut on the head of the deceased. P. W.1, on seeing
that her husband is being cut by the accused, intervened. At
that time, A6 attacked her with an aruval, which was warded off E
by P.W.1 with her hand.. resulting in an injury on her left elbow.
He also attacked P.W.1 on her head. P.W.3 also stepped in, by
raising her voice and A 7 with a stick attacked .on the lip and
hand of P.W.3. The deceased was lying unconscious. On see-
ing that, all the accused ran away. The entire occurrence was F ,
witnessed by P.Ws 1 to 3. Mahamuni, the other son of the de-
ceased and P.W.1, on hearing about the occurrence, came to
the scene of occurrence and rushed his mother and
father to the government headquarters hospital at Tiruchirapalli.
Madhappan was asked as to who assaulted him and he told G
the Doctor that he had come to sustain the injuries at the hands
of 8 to 10 known persons with the use of aruval, spear and stick
at about 7.30 p.m, in his house on 23.6.1991. P.W.7, on exam-
ining him found two injuries, which are noticed in Ex.P6. She
also examined P.W.1, who told her that she came to sustain the H
636 SLPREME COURT REPORIS [2008] 13 S.C.R.
A injuries at the hands of 10 known persons in her house at 7.30
p.m. on the same day. On her, the doctor found various symp-
toms as found noticed in Ex.P6.
PW-11 was the Sub-Inspector of Police in the Cantonment
Police station at Tiruchirapalli. At 8.40 p.m. on 23.6.1991, he
8 on receipt of the information over telephone from the hospital,
werit there and examined the deceased, who was there as an
in-patient. At that time, Madhappan gave a statement. He re-
duced the same into writing and after reading it over to him, his
signature was obtained in it The said statement is Ex.P.9. He
C came back to the police station at 9.30 p.m. and registered
Ex.P9 in Crime No.63 of91 for offences punishable under Sec-
tions 147,148, 341, 324 and 323 IPC. Ex-P10 is the printed
First Information Report He went to the hospital again at 10.30
p.m. and recovered M.Os. 1 and 2 from Madhappan in the pres-
0 ence of PW.5 under a mahazar. He examined P.W.1 in the hos- 'I -
pital. He went to the scene of occurrence and examined P.W.3
and another. He also examined P.W.2. On that night, he stayed
at the scene of occurrence in the village itself. At 6.00 a.m. on
the next day, he prepared Ex.P11 /rough sketch. Madhappan
E breathed his last immediately after the mid night of 25.6.1991.
Ex.P7 is the death intimation. On receipt of Ex.P7, P.W.11 al-
tered the section of offence into one under Section 302 IPC
and sent the altered printed first information report to the Court
as well as to the higher officials.
F The trial Court placed reliance on the evidence of the eye
witnesses PWs. 1 and 2 and the dying declaration Ext.P-9. The
conviction and the sentence imposed were challenged by all
the seven accused persons before the High Court which as
noted above directed their acquittal. The High Court held that
G the dying declaration Ext.P-9 was not believable. So far as the
evidence of the eye witnesses is concerned it was noted that
though the eye witnesses spoke about the incident, their evi-
dence has to be discarded because the dying declaration had
been discarded.
H
STATE REP. BY INSPECTOR OF POLICE, TIRUCHY v. 637
---!
RETIAIMANDAIYAN @ MURUGAN [DR ARIJIT PASAYAT, J.]
3. In support of the appeals, learned counsel for the ap- A
pellant submitted that the reasoning given by the High Court to
discard the eye witnesses's version has no rationale. Merely
because the dying declaration has been discarded, that can-
not per se render the evidence of the eye witnesses suspect.
.>-
No other reason has been indicated by the High Court to dis- 8
card their evidence.
J' 4. There is no appearance on behalf of the respondents in
spite of service of notice.
5. We find that the only reason indicated by the High Court c
to discard the evidence of the eye witnesses is that the dying
declaration had been discarded. Even if that be so, without in-
dicating any reason as to what deficiency was there in the evi-
dence of eye witnesses, the High Court should not have dis-
carded their evidence. Nowhere it has been recorded by t.he
,... D
"' High Court that the eye witnesses's evidence was in any way
deficient. That being so, the judgment of the High Court is not
sustainable. Since the High Court has not discussed the evi-
dence of PWs. 1 and 2 independently to test whether it has
credibility or not, it would be appropriate to remit the matter to
the High Court to consider the matter afresh and examine E
whether for any reason the evidence of PWs 1 and 2 need to
be discarded.
6. The appeals are allowed to the afore.said extent.
- -1 F
N.J. Appeals allowed.
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