STATE THROUGH THE INSPECTOR OF POLICEversusLALY @ MANIKANDAN & ANOTHER ETC

                        [2022] 15 S.C.R. 633                              633


        STATE THROUGH THE INSPECTOR OF POLICE                             A
                                  v.
          LALY @ MANIKANDAN & ANOTHER ETC.
              (Criminal Appeal Nos. 1750-1751 of 2022)
                        OCTOBER 14, 2022                                  B
         [M. R. SHAH AND KRISHNA MURARI, JJ.]
       Penal Code – ss. 302 & 34 – Conviction on the basis of the
deposition of the sole eye witness – The respondents-three accused
were tried for having committed the murder of victim-deceased –
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The respondents were held guilty of the offences u/s 302 r/w. 34 of
IPC by the trial Court – However, the High Court did not find the
testimony of PW1 credible and acquitted the accused – On appeal,
held: PW1 was the eye witness to the occurrence at both places
i.e. the first part was at the time when the victim, PW1 and one
another were travelling in the car, where A1 caused injury on the         D
right shoulder of the victim and thereafter is the second part, when
victim was trying to run away and reached a shed and all three
accused entered shed and caused injuries to the victim-deceased –
PW1 was fully cross-examined on behalf of the accused in which
he stood by what he has stated and fully supported the case of the
                                                                          E
prosecution – No reasons to disbelieve and/or doubt the credibility
of PW1 – Merely because the original complainant is not examined
cannot be a ground to discard the deposition of PW1 – As per settled
position of law, there can be a conviction on the basis of the
deposition of the sole eye witness, if the said witness is found to be
trustworthy and/or reliable – Recovery of the weapon used in the          F
commission of the offence is not a sine qua non to convict the accused
– If there is a direct evidence in the form of eye witness, even in the
absence of recovery of weapon, the accused can be convicted –
Similarly, even in the case of some contradictions with respect to
timing of lodging the FIR/complaint cannot be a ground to acquit
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the accused when the prosecution case is based upon the deposition
of eye witness – Therefore, the judgment passed by the High Court
acquitting the accused is unsustainable and is set aside.


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                                 633
634            SUPREME COURT REPORTS                    [2022] 15 S.C.R.


A            Allowing the appeals, the Court
             HELD: 1. On perusal of the deposition of PW1, it can be
      seen that PW1 is the eye witness to the occurrence at both
      places. When first, the accused attacked while the deceased was
      travelling in the car, PW1 was present in the car. At that time, the
B     accused dashed the car and broken the wind screen and A1 caused
      injury on the right shoulder of the deceased. That thereafter the
      deceased tried to run away and he reached the shed and at that
      time all the accused chased the deceased, went into the shed,
      caused injuries on the deceased and then came out of the shed
      and ran away. PW1 has categorically stated that he had seen all
C     the three accused entering the shed and thereafter they came
      out and the deceased was lying with the injuries and he was found
      dead. PW1 has been fully cross-examined on behalf of the accused.
      However, even after thorough cross-examination, PW1 stood by
      what he has stated and has fully supported the case of the
D     prosecution. There are no reasons to disbelieve and/or doubt
      the credibility of PW1. [Para 6][640-D-G]
             2. The submission on behalf of the accused that as the
      original informant has not been examined and that the other
      independent witnesses have not been examined and that the
      recovery of the weapon has not been proved and that there is a
E
      serious doubt about the timing and place of the incident, the
      accused are to be acquitted cannot be accepted. Merely because
      the original complainant is not examined cannot be a ground to
      discard the deposition of PW1. As observed hereinabove, PW1
      is the eye witness to the occurrence at both the places. Similarly,
F     assuming that the recovery of the weapon used is not established
      or proved also cannot be a ground to acquit the accused when
      there is a direct evidence of the eye witness. Recovery of the
      weapon used in the commission of the offence is not a sine qua
      non to convict the accused. If there is direct evidence in the form
      of eye witness, even in the absence of recovery of weapon, the
G
      accused can be convicted. Similarly, even in the case of some
      contradictions with respect to timing of lodging the FIR/complaint
      cannot be a ground to acquit the accused when the prosecution
      case is based upon the deposition of eye witness. As observed,
      PW1 is an eye witness. He has fully supported the case of the
H     prosecution. As per settled position of law, there can be a
 STATE THROUGH THE INSPECTOR OF POLICE v. LALY @                            635
          MANIKANDAN & ANOTHER ETC.

conviction on the basis of the deposition of the sole eye witness,          A
if the said witness is found to be trustworthy and/or reliable. There
is no reason to doubt the credibility and/or reliability of PW1.
Therefore, it will be safe to convict the accused on the sole
reliance of deposition of PW1. [Paras 7 & 8][640-G-H; 641-A-D]
      Krishna Mochi v. State of Bihar (2002) 6 SCC 81 :                     B
      [2002] 3 SCR 1; Kunju Muhammed v. State of Kerala,
      (2004) 9 SCC 193 : 2003 (7) JT 114 – referred to.
                        Case Law Reference
[2002] 3 SCR 1                   referred to             Para 3.4
                                                                            C
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1750-1751 of 2022.
     From the Judgment and Order dated 12.06.2018 of the High Court
of Madras at Madurai Bench in Crl. A. (MD) Nos. 270 and 362 of 2017.
      Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit Dwivedi,           D
Sanjeev Kumar Mahara, Advs. for the Appellant.
      Rao Ranjit, Adv. for the Respondents.
      The Judgment of the Court was delivered by
      M. R. SHAH, J.                                                        E
      1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 12.06.2018 passed by the High Court of Judicature at
Madras, at Madurai in Criminal Appeal Nos. 270/2017 and 362/2017, by
which the High Court has allowed the said appeals by acquitting the
respondents – accused for the offences punishable under Sections 302        F
and 302 r/w 34 IPC, the State has preferred the present appeals.
       2. That the respondents herein – original accused were tried for
the aforesaid offences for having killed/committed the murder of deceased
Saravanan. It was the prosecution case that owing to animosity between
the friend of the accused viz., Selvakumar and one Periyavan @              G
Murugan, there was a murder of Selvakumar on 31.07.2013. Suspecting
that the deceased Saravanan had informed the whereabouts of
Selvakumar, the accused, on a two-wheeler armed with weapons
obstructed the car in which the deceased, PW1 and one another were

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636            SUPREME COURT REPORTS                          [2022] 15 S.C.R.


A     travelling and dashed the car and broke the wind screen of the car with
      aruvals. A1 caused the injury on the right shoulder of the deceased. The
      deceased Saravanan tried to run away, however, the accused chased
      him and thereafter all the accused caused injuries on the deceased in the
      shed in which the deceased reached and due to the injuries suffered the
      deceased Saravanan died on the spot. The investigation started on the
B
      FIR being registered on the complaint tendered by one Mahendran. All
      the accused came to the arrested on 02.08.2013/17.08.2013. During the
      course of investigation, the Investigating Officer collected the material
      evidence and also recorded the statements of the witnesses. After
      conclusion of the investigation, a charge sheet was filed against the
C     accused for the offences punishable under Sections 341, 506(2), 302
      IPC r/w 3(1) of TNPPDL Act. The case was committed to the Court of
      Sessions which was numbered as Sessions Case No. 254 of 2014. All
      the accused pleaded not guilty and therefore they came to be tried by
      the learned Sessions Court for the aforesaid offences.
D            2.1 During the trial, prosecution examined 21 witnesses and marked
      36 exhibits and 16 material objects. After the closure of the prosecution
      evidence, further statements of the accused under Section 313 Cr.P.C.
      were recorded. During the trial, PW2, PW3 and PW5 did not support
      the prosecution case and were declared hostile. However, believing the
      deposition of PW1, PW4 and PW6, the learned trial Court held the
E     accused A1 guilty for the offence under Section 302 IPC and A2 & A3
      for the offences under Section 302 r/w 34 IPC and sentenced each of
      them to undergo life imprisonment and fine of Rs. 1,000/- each, in default,
      three months simple imprisonment.
             2.2 Feeling aggrieved and dissatisfied with the judgment and order
F     of conviction and sentence passed by the learned trial Court, the accused
      preferred the present appeals before the High Court. By the impugned
      judgment and order, the High Court has set aside the judgment and order
      of conviction and sentence passed by the learned trial Court and
      consequently has acquitted the accused for the aforesaid offences for
G     which they were convicted. The High Court has acquitted the accused
      for the reasons mentioned in paragraph 9 of the impugned judgment,
      which reads as under:
            “9. These appeals succeed for the following reasons:
            (i) The prosecution case is that the occurrence took place at 01.30
H           p.m., on 31.07.2013 and the FIR was registered at 01.45 p.m. on
STATE THROUGH THE INSPECTOR OF POLICE v. LALY @                         637
   MANIKANDAN & ANOTHER ETC. [M. R. SHAH, J.]

   the same day, on the complaint tendered by one Mahendran at          A
   the police station. The said Mahendran has not been examined.
   (ii) The Prosecution has examined P.W.1 to P.W.6 as eye-
   witnesses. While P.Ws.2, 3 and 5 have not supported the
   prosecution and have been treated hostile, P.W.4 and 6 have been
   disbelieved by the trial Court. P.W.4 has been disbelieved as he     B
   informed that the occurrence took place at 2.30 p.m., and that the
   deceased fell down outside the thatched shed of P.W.2., whereas
   the prosecution case is disbelieved since he has spoken to an
   attack by 8 to 9 persons, whereas the prosecution case is of an
   attract by the three accused/ appellants herein.
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   (iii) Contra to the prosecution case, it is the admission of P.W.1
   that the police were at the scene within 5 to 10 minutes of the
   occurrence. Both P.W.1 as also P.W.4 would submit that the
   statements of all the witnesses were recorded at the scene and
   their signatures were taken. P.W. 1 would particularly state that
   on recording the statement of Mahendran, the complainant,            D
   Mahendran; signatures were obtained and the same was attested
   by P.W.1 as also by P.W.4. The complaint in the case has not
   been marked, though by way of an inadvertent error, as we find
   from a perusal of the records, that the FIR has on the front side
   been marked as Ex.P.20 while on the reverse has been marked          E
   as Ex.21 and the complaint is found annexed thereto. A doubt
   arises as to whether the FIR marked as Ex.P.20 and the complaint
   annexed therewith inform the original version as not only has the
   complainant not has been examined, it is the version of the
   prosecution witnesses that the complaint was recorded at the
   scene.                                                               F

   (iv) P.W. 20 Sub Inspector of Police, who has registered the FIR
   informs the distance between the police station and the Court to
   be 7 kms, FIR informs the scene to be a distance of 2 ½ km from
   the police station. The FIR has reached the Magistrate only at
   7.00 p.m. Such circumstance give rise to a doubt on the              G
   genuineness thereof and raises the question of whether the genesis
   of the occurrence stands suppressed. The detailed narrative from
   of FIR informing the grudge of the accused against the deceased
   and the need to murder him only further fuels such doubt, The
   fact that the Constable entrusted with handing over the FIR to the   H
638            SUPREME COURT REPORTS                         [2022] 15 S.C.R.


A           Magistrate has not been examined makes matters worse for the
            prosecution.
            (v) P.W. 1 has spoken to seeing the accused at the police station
            on the very next day of the occurrence ie., on 01.08.2013, whereas
            the prosecution case is that Al and A3 were arrested on 02.08.2013
B           and A2 was arrested on 17.08.2013.
            (vi) According to the prosecution, the recovery of the aruvals
            have been effected from all the accused. P.W.1 in cross, would
            state that the aruvals were handed over by them ie., the
            prosecution party to the police.
C           (vii) Blood stained aruvals have been recovered. Postmortem
            stands conducted, but the blood group of the deceased has not
            been ascertained. Ex.P.16 would inform the presence of blood
            stains on the clothes worn by the deceased, and on the aruvals.
            No attempt has been made to correlate the blood group as admitted
D           by P.W.21, Investigation Officer.
            Giving the serious lacunae above noted, we do not consider it
            necessary to dwell on the delayed dispatch of the 161(3) Cr.P.C.,
            statements to Court.”
            2.3 Feeling aggrieved and dissatisfied with the impugned judgment
E     and order passed by the High Court acquitting the accused, the State
      has preferred the present appeals.
             3. Dr. Joseph Aristotle S, learned counsel has appeared on behalf
      of the State and Shri Rao Ranjit, learned counsel has appeared on behalf
      of the accused.
F
             3.1 Learned counsel appearing on behalf of the State has
      vehemently stated that in the facts and circumstances of the case, the
      High Court has committed a grave error in acquitting the accused by
      quashing and setting aside the judgment and order of conviction and
      sentence passed by the learned trial Court convicting the accused for
G     the offences under Section 302 and 302 r/w 34 IPC.
             3.2 It is vehemently submitted that in the present case the
      prosecution has fully proved the case against the accused by examining
      the relevant witnesses. It is submitted that PW1 is the eye witness to the
      occurrence of the incident and he has fully supported the case of the
H     prosecution.
 STATE THROUGH THE INSPECTOR OF POLICE v. LALY @                               639
    MANIKANDAN & ANOTHER ETC. [M. R. SHAH, J.]

       3.3 It is submitted that the incident occurred in two parts. The        A
first part was at the time when the deceased, PW1 and one another
were travelling in the car where A1 caused the injury on the deceased
on the right shoulder and thereafter is the second part when the accused
chased the deceased when he was trying to run away and reached the
shed and all the three accused entered the shed, caused injuries on the
                                                                               B
deceased and thereafter they came out of the shed and ran away. It is
submitted that at both the places, PW1 was present and he had seen the
occurrence of the incident at both the places. It is submitted that there is
no reason to disbelieve the testimony of PW1. Learned counsel for the
State has taken us to the deposition of PW1.
       3.4 Making the above submissions and relying upon the decision          C
of this Court in the case of Krishna Mochi v. State of Bihar, (2002) 6
SCC 81 (para 35), it is prayed to allow the present appeals and quash
and set aside the impugned judgment and order passed by the High
Court and restore the judgment and order of conviction and sentence
passed by the learned trial Court against the accused for the offences         D
under Sections 302 and 302 r/w 34 IPC.
      4. The present appeals are vehemently opposed by the learned
counsel appearing on behalf of the original accused.
      4.1 It is vehemently submitted that as such the High Court has
given cogent reasons while acquitting the accused.                             E

      4.2 It is submitted that out of the six witnesses examined by the
prosecution as eye witnesses, three witnesses – PW2, PW3 and PW5
have not supported the case of the prosecution. It is submitted that PW4
has been disbelieved even by the learned trial Court due to material
contradictions in his deposition and the case of the prosecution.              F
       4.3 It is further submitted that in the present case, Mahendran
who tendered the complaint at the police station and on the basis of
which an FIR has been registered has not been examined. It is submitted
that though other independent witnesses were available, none of them
have been examined by the prosecution. It is submitted that therefore to       G
rely upon the sole witness – PW1 is not safe to convict the accused.
       4.4 It is further submitted that even there are material
contradictions in the deposition of PW1 and other witnesses about the
injuries caused. It is submitted that so far as the second part of the
occurrence is concerned, the same occurred in the shed and even                H
640            SUPREME COURT REPORTS                        [2022] 15 S.C.R.


A     according to PW1, he was outside the shed and he has not seen the
      accused causing injuries on the deceased. It is submitted that therefore
      PW1 cannot be said to be reliable and trustworthy witness and therefore
      the accused may not be convicted on the sole deposition of PW1.
            4.5 It is further submitted by the learned counsel appearing on
B     behalf of the accused that even the recovery of weapon cannot be said
      to have been proved by the prosecution.
              4.6 Making the above submissions and relying upon the decision
      of this Court in the case of Kunju Muhammed v. State of Kerala,
      (2004) 9 SCC 193 (paras 9 & 10), on the timing and place of incident,
C     it is prayed to dismiss the present appeals.
            5. We have heard learned counsel for the respective parties at
      length. We have gone through in detail the judgment and order of
      conviction and sentence passed by the learned trial Court as well as the
      impugned judgment and order passed by the High Court. We have gone
      through in detail the deposition of PW1 who can be said to be a star
D
      witness and the eye witness.
            6. Having gone through the entire deposition of PW1, it can be
      seen that PW1 is the eye witness to the occurrence at both places.
      When first, the accused attacked while the deceased was travelling in
      the car, PW1 was present in the car. At that time, the accused dashed
E     the car and broken the wind screen and A1 caused injury on the right
      shoulder of the deceased. That thereafter the deceased tried to run away
      and he reached the shed and at that time all the accused chased the
      deceased, went into the shed, caused injuries on the deceased and then
      came out of the shed and ran away. PW1 has categorically stated that
F     he had seen all the three accused entering the shed and thereafter they
      came out and the deceased was lying with the injuries and he was found
      dead. PW1 has been fully cross-examined on behalf of the accused.
      However, even after thorough cross-examination, PW1 stood by what
      he has stated and has fully supported the case of the prosecution. We
      see no reason to disbelieve and/or doubt the credibility of PW1.
G
             7. The submission on behalf of the accused that as the original
      informant – Mahendran has not been examined and that the other
      independent witnesses have not been examined and that the recovery of
      the weapon has not been proved and that there is a serious doubt about
      the timing and place of the incident, the accused are to be acquitted
H     cannot be accepted. Merely because the original complainant is not
  STATE THROUGH THE INSPECTOR OF POLICE v. LALY @                              641
     MANIKANDAN & ANOTHER ETC. [M. R. SHAH, J.]

examined cannot be a ground to discard the deposition of PW1. As               A
observed hereinabove, PW1 is the eye witness to the occurrence at
both the places. Similarly, assuming that the recovery of the weapon
used is not established or proved also cannot be a ground to acquit the
accused when there is a direct evidence of the eye witness. Recovery
of the weapon used in the commission of the offence is not a sine qua
                                                                               B
non to convict the accused. If there is a direct evidence in the form of
eye witness, even in the absence of recovery of weapon, the accused
can be convicted. Similarly, even in the case of some contradictions with
respect to timing of lodging the FIR/complaint cannot be a ground to
acquit the accused when the prosecution case is based upon the deposition
of eye witness.                                                                C
       8. As observed hereinabove, PW1 is an eye witness. He has fully
supported the case of the prosecution. As per settled position of law,
there can be a conviction on the basis of the deposition of the sole eye
witness, if the said witness is found to be trustworthy and/or reliable. As
observed hereinabove, there is no reason to doubt the credibility and/or       D
reliability of PW1. Therefore, it will be safe to convict the accused on
the sole reliance of deposition of PW1.
       9. In view of the above and for the reasons stated above, the
impugned judgment and order passed by the High Court acquitting the
accused for the reasons mentioned in paragraph 9 of the impugned               E
judgment and order is unsustainable and the same deserves to be quashed
and set aside. Accordingly, the impugned judgment and order passed by
the High Court acquitting the accused for the offences under Sections
302 and 302 r/w 34 IPC is hereby quashed and set aside and the judgment
and order passed by the learned trial Court convicting the accused for
the offences under Sections 302 and 302 r/w 34 IPC is hereby restored.         F
Now the accused to surrender before the concerned Jail authorities/
concerned Court to undergo the sentence as imposed by the learned
trial Court, within a period of six weeks from today. If the accused do
not surrender with the time stipulated hereinabove, the concerned
Superintendent of Police/Court is directed to take the accused into            G
custody to serve out the sentence.
       10. The present appeals are allowed accordingly.

Ankit Gyan                                                  Appeals allowed.
(Assisted by : Rahul Rathi, LCRA)
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