LexSTATE REP. BY INSPECTOR OF POLICE, TIRUCHY versus RETTAIMANDAIYAN @ MURUGAN
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[2008] 13 S.C.R. 632 A STATE REP. BY INSPECTOR OF POLICE, TIRUCHY v RETTAIMANDAIYAN @ MURUGAN (Criminal Appeal No. 656 of 2002) B SEPTEMBER 18. 2008 [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 D not have discarded the evidence of eye witnesses without in- "' . 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 G examined P.W.-1 to 3. FIR was registered uls. 147, 148, 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 B High Court, the Court 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 D Court has not discussed the evidence 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 whether for any reason the evidence of PWs 1 and 2 need to be dis- E carded. [Para 5) [637 C-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 c (ii) 1471PC A-2, A-4, A-5 and A-7 (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
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