Myladimmal Surendran & Ors. V/s State of Kerala CRIMINAL APPEAL NO.840 OF 2006 September 1, 2010

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 839 OF 2006
Myladimmal Surendran & Ors. ...Appellants
VERSUS
State of Kerala ...Respondent

WITH CRIMINAL APPEAL NO.840 OF 2006
Arayakkamdy Sukumaran @ Suku ...Appellant
VERSUS
State of Kerala ...Respondent
JUDGMENT

SURINDER SINGH NIJJAR, J.

1. These appeals have been filed against the common

judgment passed by the High Court of Kerala, at Ernakulam in

Criminal Appeal Nos. 214 and 159 of 2005 filed by the 1 accused/appellant no.1 and accused/appellant no.3 to
accused /appellant no.5 respectively whereby the High Court was pleased to confirm the conviction of the accused/appellants under Sections 143, 147, 148, 341, 302 read with 149 IPC, but partly allowed their appeals to the extent that the sentence of death imposed upon by the
Sessions Court was converted to imprisonment for life.

2. Both the trial court and the High Court have concluded

that the deceased was killed due to political vendetta. The

conclusions reached by the two Courts do not seem to be

without basis. The High Court has noticed that there were

many political murders and other crimes in Kannur district of

Kerala at the time when Sri Panniyannur Chandran was

murdered. He was murdered to avenge the murder of an

activist of the Communist Party of India (Marxist),

Mamman Vasu within the limits of Checkli Police Station. At

that time, the deceased, Sri Panniyannur Chandran was the

Secretary of the District Committee of BJP. Following the




2
murder of Mamman Vasu, death threats were often received

by the deceased. He was thought to be the brain behind the

murder of the CPM activist. It was said that such threats were

made even in the Peace Committee Meetings that followed the

killing of Mamman Vasu. The State Special Branch officials

being satisfied about the possible threat to the life of deceased

had conveyed the information to the local police station of the

area in which the deceased resided. Consequently, a Police

Picket was set up near the house of the deceased to provide

security. Tragically, it appears that in spite of all the security

measures, the assailants had their way. He was murdered on

25.5.1996 in broad day light, in front of his wife. He was

literally hacked to death, by trained killers.



3. We may now notice the facts.



4. On 25.5.1996, between 2:30 and 3:00 p.m.

Sri Panniyannur Chandran accompanied by his wife,

Arundhuti (hereinafter referred to as PW1) went to the




3
Thalassery Railway Station riding a motor bike to see off his

brother-in-law to Madras. On their return, they met the father

of the deceased, who told them that he was going to the ration

shop to buy rice. On their way back, when they had almost

reached home, they found that the road had been blocked by

Arayakkamdy Sukumaran @ Suku (hereinafter referred to

as A1), Thayyullathil Thazhekuniyil Pavithran @ Pavi

(hereinafter referred to as A2), Myladimmal Surendran

(hereinafter referred to as A3), Kaithayullaparambath Preman

(hereinafter referred to as A4) and Kunhiparambath

Purushothaman @ Purushu (hereinafter referred to as A5).

They were all armed with deadly weapons. Though the

deceased attempted to avoid them, he was unable to do so, as

the engine of the motor cycle went dead. The wife jumped off

the motorcycle just before it fell. She ran away. Then from a

distance she saw that A1 assaulted the deceased with a

billhook which injured his left hand. The deceased started

running towards his house hotly chased by the accused armed

with deadly weapons. The wife ran to the place where they had




4
met CW1. But hearing her screams, CW1 was already coming

towards the trouble spot. On meeting CW1, she informed him

about the incident. She then ran to the house of her husband

thinking that the deceased must have reached home. Finding

that her husband was not in the house, she again ran back,

with the sister of the deceased, to the place of assault. She

found the deceased lying with his head on the lap of his father.

According to the wife, the incident occurred at about 4:45 p.m.

At that time, she did not know the names of the accused. She

was told the names by CW1 after three days.



5. The Policemen on picket duty reached the spot and took

Panniyannur Chandran to the general hospital where he

breathed his last at 5:50 p.m. The father of the deceased

reported the incident which was recorded by the C.I. of Police,

Thalassery. The investigation was carried on for sometime by

the local Police but eventually for efficient investigation the

case was transferred to the Crime Branch. PW17, a Detective

Inspector of the Crime Branch conducted the investigation




5
from that point onwards. In the mean time A1 to A5

surrendered before the Addl. C.J.M, Thalassery and were

remanded to custody. After investigation, PW17 submitted

final report against A1 to A5 in the court of Addl. CJM,

Thalassery for offences under Sections 143, 147, 148, 341

and 302 read with 149 IPC. At that stage A2 absconded.

Therefore the case against A2 was split up and the case

against A1, A3 to A5 was committed to the Court of Sessions,

Thalassery. Since the accused pleaded not guilty they were

duly put on trial.



6. By order dated 12.11.2004, the Sessions Court convicted

the appellants herein for the offences punishable under

Sections 143, 147, 148, 341 and 302 IPC. For the

offences punishable under the aforesaid Sections (except

Section 302 IPC) they were sentenced to undergo rigorous

imprisonment for different periods, varying from two months

to three years. They were, however, sentenced to death for the

offence under Section 302, IPC.




6
7. Challenging the aforesaid judgment, A1 filed Criminal

Appeal No. 214 of 2005 and A3 to A5 filed Criminal Appeal

No. 159 of 2005 before the High Court of Kerala at Ernakulam.

The High Court vide order dated 16.11.2005 confirmed the

conviction of the accused under Section 302 read with 149 IPC

but the sentence of death was converted to imprisonment for

life. Aggrieved by the said judgment, A1 filed Crl. Appeal

No. 840 of 2006 and A3 to A5 filed Crl. Appeal No. 839 of 2006

before this Court.



8. We have heard Mr. Surinder Singh, learned Senior

Advocate for the appellants and Mr. R. Satish on behalf of the

respondent State.



9. After taking us through the relevant materials relied on

by the prosecution, Mr. Surinder Singh learned Senior

Advocate raised the following contentions:




7
(i) Ext P1, the First information Statement was given

by the father of the deceased (CW1), who died one

year before trial. The FIS has been wrongly used as

a substantial piece of evidence to corroborate the

evidence given by the prosecution witnesses. In the

First Information Statement, he had stated that the

incident occurred while his son was returning from

the Railway Station together with his wife (PW1)

after seeing off his brother in law. He had further

stated that earlier at about 3 p.m., three persons

had come to his house and enquired about

whereabouts of the deceased. He had told them that

his son had gone to the railway station and would

be coming back by about 4:30 p.m. He had told

them to wait for his son in the house. He then left

for the Ration Shop to buy rice. On his way to the

Ration Shop, he had met his son returning on his

motorcycle with his wife. On enquiry from his son,

he had told him that he was going to buy rice from




8
the Ration Shop. Soon thereafter, he heard the cries

of his daughter-in-law. He rushed back to the place

where he had met his son. There he saw

Arayakkamdy Sukumaran @ Suku and others

assaulting the deceased with deadly weapons. He

stated that the assault on his son was due to

political rivalry.

(ii) The FIR is not the correct version of the assault and

the death of the victim. The FIS is the earliest

version of the incident. The prosecution cannot

thereafter give a different version. In the FIS the

name of the main culprit is given as "Suku of

Arayakkamdy House". The name of the first accused

in the trial is Suku (short for Sukumaran).

(iii) The FIR was not sent to the Magistrate forthwith, as

is evident from the seal of the court of Magistrate,

which is dated 29th May. Surprisingly, the

Magistrate has initialed the FIR on 26.5.1996.




9
(iv) It is then submitted that even if the delay in

recording the FIR is not fatal, the High Court ought

to have scrutinized the evidence meticulously.

(v) The recovery of the MOS itself was not acceptable

under Section 27 of the Evidence Act.

(vi) The dying declaration that "Suku and others" had

committed the crime is unreliable. With so many

injuries, it is impossible that the victim would give a

coherent answer to any question. In fact, PW7 at

the Police Picket stated that the name uttered by

the victim was not clear to him.

(vii) The learned senior counsel submitted that there

was suspicion regarding the identity of the accused

as no test identification parade was conducted. PW1

identified the accused in court after eight years and

three months. Since PW1 did not know the accused

it would be unsafe to rely upon her identification of

the accused.




10
(viii) The learned senior counsel then attacked the

evidence of PW2 and PW3. According to the learned

senior counsel, there is no explanation, why their

statements were recorded 3 or 4 days after the

incident. Both the witnesses being BJP

sympathizers were planted by the prosecution.

(ix) Another submission made by the learned senior

counsel was that if the identify of the accused was

known, their names would have been mentioned at

the Police Picket.



10. On the other hand Mr. R. Satish, learned counsel for the

State of Kerala, submitted that:

(i) The trial court and the High Court have convicted

the accused on the basis of the eye-witness account

of three witnesses. PW1 is the wife of the deceased.

She had no reason to falsely implicate anyone.




11
(ii) The evidence given by the wife is consistent with the

evidence of PW2 and PW3, who witnessed the

second phase of the murderous assault.

(iii) The presence of PW2 and PW3 cannot be doubted on

the ground that they are chance witnesses or that

they are partisan witnesses.

(iv) The nature of injuries caused are consistent with the

weapons used, by the assailants.

(v) Medical evidence confirms the ocular evidence.

(vi) The dying declaration also adds further corroboration

to the eye-witness account given by PW1, PW2 and

PW3.

(vii) Non holding of the test identification parade would

not weaken the eye-witness account of PW1, PW2

and PW3. All of them have identified the accused in

court.

(viii) There is no delay in recording the FIR. There is also

no delay in sending a copy of the FIR to the Judicial

Magistrate, Ist Class.




12
(ix) Both the courts have given concurrent findings,

therefore, no case is made out for interference by

this Court.



11. We have considered the submissions made by the

learned counsel. Given the seriousness of the allegations made

as also the imposition of the death penalty by the trial court,

the High Court, in our opinion, correctly considered the entire

evidence with great care and caution. The other reason which

impelled the High Court to take this cautionary approach was

that this was one of the many political murders and crimes

which had been committed in Kannur District during the

relevant time. It was noticed that the deceased was a BJP

leader and the accused were workers of the Marxist Party. It

had come in evidence before the trial court that the deceased

had been a candidate of the BJP in the General Election for

the Peringalam Assembly Constituency. Even though he had

got only 10,000 votes, he had been threatened that he would

be killed. Consequently, the police aid post had been




13
established about 150 meters near his house. The added

reason for danger to the life of the deceased was that he was

suspected to be a mastermind behind the murder of a Marxist

Party activist called Mamman Vasu. Demands had been made

by the Marxist Party, as well as the public in general, for the

deceased to be arrayed as an accused in the aforesaid murder.

The High Court also noticed that the danger to the life of the

deceased became stronger when the LDF Government came to

power. To make it even worst, the house of the deceased was

situated in a disturbed area.



12. The High Court thereafter examined the entire evidence

threadbare and concurred with the conclusions reached by the

trial court. We see no reason to doubt, let alone differ with, the

conclusions which seem to flow naturally from the evidence on

record. Although the conviction of the accused persons was

confirmed, the High Court converted the death sentence to

imprisonment for life.




14
13. At the outset, we may notice that this is one of those rare

cases where the wife is an eye-witness to the murderous

assault, which resulted in the death of her husband. She

appeared in the Court as PW1. In her evidence, she has

clearly stated that on 25.5.1996 she and her husband had

gone to the local railway station to see off her brother on

the train to Madras. They had set off from the house

between 2.30 p.m. to 3 p.m. on her husband's motorcycle.

They left the railway station after 3.45 p.m. On the way back

home, they bought some apples from fruit stall and put them

in a box attached to the motor bike. When they reached near

the house they met CW1 father of the deceased. On being

asked by her husband, CW1 told them that he was going to

the Ration Shop to buy some rice. Whilst they were on their

way home, they saw five persons standing in the middle of the

road at the curve. On being obstructed, her husband tried to

go round them. Tragically, however, the engine of the

motorcycle somehow got switched off. She immediately jumped

off the motorcycle, which in any event fell down. She then saw




15
one of the accused persons hack her husband with a billhook.

Her husband tried to block the blow by raising his left arm

which in the process got injured. She started screaming. While

running away from the scene, she saw her husband also

running towards the house, hotly pursued by the five

assailants, waving their deadly weapons. She ran to locate

CW1, who was already rushing towards the trouble spot,

having heard her shrieks. She then witnessed the second

assailant Purushu (A5) hack her husband with the billhook.

She ran to the house of the deceased taking the canal road,

thinking that he would have reached home by then. However,

finding that her husband had not reached, she again rushed

back to the scene of the incident, along with the sister of the

deceased. It was at that time she saw her husband lying on

the ground with his head on the lap of his father CW1. He had

injuries all over his body and he was drenched in blood.



14. In her evidence, she had categorically stated that the

accused persons had attacked her husband at the stated time




16
and place. She, however, stated that she was not aware of the

names of the accused persons at that time. The names were

given to her by CW1 three days after the incident. During her

deposition in court, she clearly stated that she can identify the

assailants. She actually identified them in court. When

questioned in court, she categorically stated that her husband

tried to turn the motorcycle round on the road, but it fell

down. She also stated that she ran to the house through the

very same route where her husband and the assailants had

also followed. She very clearly stated in court that the persons,

that injured her husband, were the persons she identified in

Court.



15. The High Court has also rightly concluded that the

evidence of PW1 is consistent with the evidence given by PW2

and PW3. According to these witnesses, on 25.9.1996, PW2

accompanied by his friend PW3 had come to the house of the

deceased. He had promised to help PW2 to get the loan. On

reaching the house of the deceased at about 4.30 p.m. they




17
met CW1. He informed them that his son (the deceased) had

gone to the railway station to see off his brother-in-law. He

also told them that the deceased was to come back home

shortly, so they could wait in the house for him. CW1 also told

them that he was going to Ration Shop to buy some rice. After

about 4-5 minutes, they left the house, after informing the

sister of the deceased that they will meet him on the way.

When they had moved about a 100 meters away from the

house they heard the shrieks of a woman. They started

running towards the direction from where the shrieks were

coming. At that time, they also heard the shouts of some men

asking them to come fast. When they were about 50 meters

away, they saw the deceased being chased by the five accused.

They were holding the weapons in their hands. When they

reached about 30 meters away, they saw one of the accused

persons attacking (hacking) the deceased on the left side of the

back. By that time, they were standing about 10 meters away

from the deceased and the assailants.




18
16. PW2 had categorically stated that he saw the deceased

being hacked with a billhook with a curved beak. He

specifically named the accused Sukumaran. Upon being

brutally wounded, the deceased fell down. The witness also

stated that thereafter all the five accused attacked the

deceased with their respective weapons. He recognized four of

the persons present in court. He also stated that he knew the

names of each of them and he can point out each person by

name. The witness then actually pointed out the accused by

name. This witness further goes on to state that the name of

the absconding assailant is `Pavithran'. He stated that A3 was

armed with an axe and the others with billhook with pointed

beak/curved beak. He identified the weapons of offence.

According to this witness, the body of the deceased was badly

cut up. By the time, the father of the victim, CW1 reached the

spot, the five assailants had fled away. They carried their

weapons with them. It was only after that an explosion was

heard from the Southern side of the place of incident. CW1

took the head of the victim in his lap who was continuously




19
asking for water. By that time, two police men came running

to the spot. One of them wiped out the blood from the face of

the victim. He asked the victim `who did this to you'? The

victim answered `Suku and others'. At the same time,

a neighbouring woman gave some water to the police men who

then dripped the same into the victim's mouth. The neighbour

also gave them some more clothes which were used for

dressing the wounds of the victim. This witness, thereafter,

helped the police and other persons to put the victim into the

jeep who was then taken to the hospital. The witness

categorically stated that the accused were known to him

earlier as they were regular visitors at the arrack shop where

he worked. He stated that A1 was a Mason, A2 Pavithran who

is absconding was a carpenter, A3 was a bus cleaner, A4 was

a coconut tree climber, A5 was a concrete worker. The witness

even stated that he had given the names to the police at the

time when the statement was recorded. Subsequently, when

the statement was again recorded, he again gave the names.




20
This witness was cross-examined at length but his evidence

could not be shaken.



17. The aforesaid evidence of PW2 has been reiterated by

PW3. He also claimed to know all the accused. He also stated

that he is prepared to identify the accused by naming them in

court. He also actually identified the accused in court. An

effort was made to attack the character of this witness. It was

sought to be projected that he was a BJP sympathizer. The

aforesaid suggestion was stoutly denied by the witness. He,

however, admitted that after he had become a prosecution

witness in this case, a false case had been registered against

him which is pending. In the aforesaid case, false allegations

of burning the CPI (M) office had been made.



18. In addition to the aforesaid witness, the High Court

noticed that PW4, the neighbour, had also reached the scene

of the assault. This witness also stated that the deceased in

reply to a question of the policemen stated while groaning with




21
pain, that `Suku and others' were the assailants. This witness

also accompanied the victim to the hospital in the jeep. He

confirmed that the deceased was facing assassination threats

after the murder of Mamman Vasu at Checkli. He further

deposed that he had seen in the newspaper that Marxist

people had gone on Satyagraha in their office at Checkli

demanding inclusion of the deceased as an accused in the

Mamman Vasu murder case. The witness further stated that

in a public meeting he had heard that they will assassinate the

deceased. The relevant part of the deposition which has been

reproduced by the High Court in its judgment is as under :-

"I saw in the news paper, a report of hunger strike by
Marxist party people in Checkli asking to make
Chandrettan as an accused in Mamman Murder Case.
Like wise I am told that there was speech in public
meeting of CPI(M) that Chandrettan would be killed."


In his cross-examination, he stated that he is a BJP candidate

and deceased was Kannur District Secretary of BJP. He also

stated that he had told the doctor that he had seen the

deceased lying on the road with injuries all over his body.




22
19. The High Court took notice of the evidence of another

important witness PW7, who was posted in the Police Picket

near the house of the deceased. He stated that they had gone

to the scene of the crime when they were informed by some

workmen that somebody had been stabbed. When they

reached the place of incident, they saw the deceased was lying

covered with blood in the lap of his father CW1. This witness

stated that he had asked the victim, the names of the

assailants. In reply the victim had given the name which he

was not able to understand. He, however, stated that the

victim was conscious at that time.



20. With the aforesaid consistent eye-witness account of

three witnesses together with the evidence of the witnesses for

the period immediately after the incident, in our opinion, it

would be well-nigh impossible to disturb the concurrent

conclusions reached by the trial court and the High Court.




23
21. In this case, unfortunately, the author of the first

information statement passed away before the trial. He was

none other than the unfortunate father of the victim. In the

first information statement which has been converted into a

FIR, he has categorically stated that on hearing the screams of

the daughter-in-law, he ran back towards the place where he

had met his son and daughter-in-law. He saw that the

motorcycle has been abandoned in the road. His son was

running towards the house and he was being chased by five to

eight persons. They were hacking his son with weapons like

sword. When he yelled for help, the accused Arayakkamdy

Sukumaran @ Suku hacked forcefully on the back of the

deceased with a sword like weapon in his hand and ran away.

After narrating the entire sequence as to how the victim was

brought to the hospital he had stated that : -

"Chandran is the District Secretary of BJP. Sugu and
others are communists. Politically they are inimical to
Chandran. They hacked Chandran to death out of this
political animosity. Necessary action may be taken in
this respect. The place of occurrence is within the limits
of the Panoor Police station."




24
The High Court, in our opinion, correctly observed that the

statement could not be considered as a substantive piece of

evidence.



22. The High Court also accepted that the dying declaration

in this case may not be sufficient for conviction of the accused.

It can, however, be considered for corroboration of the

evidence of other witnesses. It has been noticed earlier that

PW2 and PW3 had categorically stated that the deceased even

though badly injured had stated that the assailants were Suku

and others. The High Court was also cautious to ensure that

the injured was in a fit state to make the dying declaration. It,

therefore, examined the evidence of the doctor who had clearly

stated that even after being brutally injured, the deceased

could have talked for another 20 minutes.



23. The evidence given by the doctor who conducted the post

mortem PW10, was noticed by the High Court minutely. The




25
post mortem certificate Ex.PW7 indicated the following injuries

on the deceased :-

" 1. 4 c.m. x 2 c.m. gaping linear wound on upper
scalp (R) side incised.
2. Transverse linear incised wound on top of scalp
8c.m. x 3 c.m. from (L) top parietal region to past
the midline of the middle of the scalp cutting the
bone.
3. A slashed (RY) eyebrow hanging over the eye with
a piece of underlying bone, 7 c.m.
4. . side of the nose is cut open and hanging (flesh)
incise `U' shaped inverted.
5. (L) car is transversely slashed from the tragus and
through the middle of the pinna into two, 7 c.m.
incised wound gracing occiput bone and mastoid.
6. 13 c.m. x 6 c.m. transverse incised wound on the
neck at the level of the (L) ear lobe gracing on the
mastoid.
7. On the back, (L) side below neck, gaping 7 c.m. x 5
c.m. transverse wound and its tail extends
superficially, 8 c.m. more laterally and downward
(in L Shape).
8. A linear incised wound 4 c.m. x 3 cm. just below
this wound.
9. 4 c.m. x 3 c.m. incised transverse wound 12 c.m.
below the neck.
10. 2.5 c.m. long incised wound on skin over
(L) shoulder blade.
11. Four linear slashed incised wounds on the back of
head with marks on the skull from above
downwards (from R to L 10 cm x 3 cm, 8 cm x
2.5 cm, 4.5 cm x 2.5 cm and 7 cm x 6 cm.
12. 11 c.m. long x 8 c.m. deep transverse incised cut
on the back of neck at the level of the 5 th cervical
spine and cutting it and the spinal cord.
13. 12 c.m. long transversely oblique incised wound
cutting open the posterolateral left thigh and knee
joint 7 c.m. deep exposing the femoral condyle and
cutting it.



26
14. 15 c.m. oblique gaping incised wound on
(L) lateral thigh middle, cutting part of the
muscles and 4 c.m. deep.
15. 9 c.m. linear cut exposing the (L) shoulder 5 c.m.
deep and cutting the (L) humeral head incising
and exposing it.
16. Superficial transverse 5 c.m. long wound on back
of (L) upper forearm (incised).
17. 6 c.m. long incised slash separating the ulnar
metacarpals of the (L) hand from the wrist 3.5 c.m.
deep and oblique.
18. Superficial incised 2.5 c.m. transverse wound over
the (L) wrist over the radial styloid.
19. The right cubical fossa is slashed open 7 c.m.
oblique incised and 4 c.m. deep.
20. 6 c.m. long through and through cut of . wrist on
its back with opening of skin 2.5 cm. on he ventral
aspect in the corresponding oblique direction.
21. Oblique wound 6 c.m. incised exposing the M.C.P.
tendons of . little ring and middle fingers on the
back of the . palm, transverse.
22. Linear contusions dark and in two number
68 c.m. each in length on . shoulder and
transverse dark linear contusion on . arm 6 c.m.
long and 4 c.m.long linear contusion . mid-
forearm back.
23. Minor contusion, abrasions three in number on
(L) shoulder, two transverse and one linear.
24. Dark patches (L) flank abdomen (contusion) and
on (L) knee, (L) le, . shin, . knee and . Side
abdomen.
25. Skull is cut from midline to (L) parietal regions
transversely reaching the dura, but without
bleeding or injury to the brain.
26. Another 4 cuts on (L) occiput obliquely and over
(L) mastoid.
27. Abdomen contains partially digested food
materials.
28. Internal viscera pale, intact, including brain
matter, liver, lungs, stomach, spleen, viscera and
heart."



27
24. The doctor PW10 had stated that the cause of death was

due to bleeding and irreversible shock neural and vascular. He

had also stated that Injury Nos. 1, 4, 6, 7, 10, 15, 16, 17 and

21 can be caused by weapon like MO1. Injury Nos. 2, 3, 5, 8

and 9 can be caused by MO1 or a weapon similar to MO1.

Injury Nos. 11, 13, 14, 18, 19 and 20 can be caused by MO2.

Injury No.12 can be caused by a sharp-edged weapon like and

an axe.



25. On specifically being asked, he had stated that it would

be possible for the injured to speak even after sustaining the

injuries mentioned above. The doctor had stated that after

sustaining injury No.12 the victim must have received neural

shock for sometime, say for about 5 minutes, and thereafter

he would have been able to talk and drink, approximately for

another 20 minutes. The doctor also opined after looking at

the injuries that the same were caused by persons trained in

killing.




28
26. The High Court also rejected the submissions with regard

to the delay in the registration of the FIR or with regard to the

delay in transmission of the same to the Magistrate. It was

noticed by the High Court that the Judicial Magistrate, Ist

Class had initially received the FIR at 11.30 a.m. on

26.5.1996. The incident occurred around 4.45 p.m. on

25.5.1996. The injured was brought to the Government

Hospital at 5.40 p.m. The FIS of the father of the deceased

was recorded at 7 p.m. It reached Panoor Police Station

at 9 p.m. Thereafter, the FIR was registered. It reached the

residence of the Judicial Magistrate, Ist Class at 11.30 a.m.

on 26.5.1996. The High Court notices the submission on

behalf of the accused that the seal of the court on the FIR was

affixed on 29.5.1996. It was, however, observed that the

genuineness of the signature of the Magistrate on 26.5.1996

was not questioned by the accused at any time. This apart, it

was noticed that the investigating officer was not questioned

regarding the authenticity of the signature of the Judicial




29
Magistrate, Ist Class. It was also noticed that 28th was a

holiday, being Muharam, therefore, the seal being affixed on

29.5.1996 would not be extraordinary. The High Court also

found that in case the recording of the FIR was actually

delayed, as suggested by the accused, it would not be

necessary to name only one accused person therein. If the FIR

was fabricated then all the accused could have been

incorporated. In our opinion, it was rightly observed by the

High Court that there was no unexplained delay in lodging the

FIR and in sending the copy of the same to the Magistrate. In

any event, no prejudice has been caused to the accused

persons.



27. In our opinion, the evidence given by the wife of the

deceased in this case was unimpeachable. It could not be

discarded, as stated by the learned senior counsel on the basis

that she was an interested witness. If such a wide proposition

was to be accepted the evidence of all the witnesses who were

relatives of a victim of a violent crime would be rendered




30
unacceptable. Merely because PW1 happens to be the wife of

the deceased would not justify her being branded as an

interested witnesses. The evidence of the wife is followed by

the consistent evidence given by PW2 and PW3. This is further

corroborated by the dying declaration made by the injured

within minutes of being assaulted. In such circumstances, it

would be difficult to accept the submissions of the learned

senior counsel that the evidence of the eye-witnesses ought to

be disbelieved.



28. In our opinion, the High Court rightly rejected the

submission, which was also reiterated before us, that the

evidence of PW2 and PW3 should be rejected on the ground

that they were chance as well as the partisan witnesses.



29. We may at this stage notice the observations made by

this Court in the case of State of Rajasthan Vs. Smt. Kalki

and Another [(1981) 2 SCC 752] which is as under:-

"True, it is she is the wife of the deceased, but she
cannot be called an `interested' witness. She is related
to the deceased. `Related' is not equivalent to


31
`interested'. A 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. A witness who is a natural
one and is the only possible eye witness in the
circumstances of a case cannot be said to be `interested'
in the instant case PW1 had no interest in protecting
the real culprit, and falsely implicating the
respondents."


30. In our opinion, the aforesaid observations are fully

applicable to the evidence of the PW1 in this case. Similarly,

the evidence of PW2 and PW3 cannot be brushed aside as

chance witnesses. It has come in evidence that the deceased

was the LIC agent. PW2 wanted to take a loan from the LIC for

construction of his house. He, therefore, went to meet the

deceased at his house. He was accompanied by his friend

PW3. Both of them left the house of the deceased in the

circumstances narrated above and clearly witnessed the

second assault on the deceased. This Court had occasion to

disapprove the attitude of casually branding material

witnesses to crimes of violence as chance witnesses in the case

of Sachchey Lal Tiwari Vs. State of U.P. [(2004) 11 SCC

410]. It was observed as follows:-



32
"Murders are not committed with previous notice to
witnesses, soliciting their presence. If murder is
committed in a dwelling house, the inmates of the
house are natural witnesses. If murder is committed in
a street, only passerby will be witnesses. Their evidence
cannot be brushed aside or viewed with suspicion on
the ground that they are mere `chance witnesses'. The
expression `chance witness' is borrowed from countries
where every man's home is considered his castle and
everyone must have an explanation for his presence
elsewhere or in another man's castle. It is quite
unsuitable an expression in a country where people are
less formal and more casual, at any rate in the matter of
explaining their presence."


31. In our opinion, these observations of this court are of

tremendous relevance given the cultural ethos of this country.

For the same reasons, we are unable to accept the submission

of the learned senior counsel that the evidence of the PW3

ought to be rejected on the ground that they are partisan

witnesses. Merely because PW2 and PW3 are sympathizers of

BJP, their evidence cannot be brushed aside. At best, their

evidence has to be carefully scrutinized. On such careful

scrutiny of the evidence the trial court and the High Court

have clearly and in our opinion rightly concluded that the

evidence of these witnesses could not be discarded.




33
32. Now, this brings us to the most important submission

made by the learned senior counsel. Mr. Surinder Singh,

submitted that since no test identification parade was held,

prior to the witnesses deposing in court, the identity of the

accused has not been established. Learned counsel has

submitted that it is in fact a case of a blind murder. The

deceased was a political activist; he had political enemies. The

prosecution has unnecessarily dragged in the names of the

accused appellants. Learned senior counsel had also pointed

out the numerous weaknesses in the investigation of the case.

He submitted that the benefit of doubt clearly had to be

extended to the accused in the peculiar circumstances of this

case. We have carefully examined the aforesaid submissions.




33. Earlier, this Court had the occasion to consider similar

submissions in the case of Ramanbhai Naranbhai Patel Vs.

State of Gujarat, (2000) 1 SCC 358. In that case also, the

murder of the husband had been committed in front of the




34
wife. Justice S.B. Majmudar speaking for the Court observed

as follows:

"......there is direct eyewitness account deposed to by
the witness Dhirubhai Mohanbhai (brother of the
deceased), witness Dhirubhai Premjibhai, PW 5, the
tenant residing in the locality and Dilipbhai, the
younger brother of the deceased. These witnesses have
clearly deposed that they knew the accused. In fact,
Dilipbhai was the person who was involved in the
incident of the previous day wherein Accused 1 and his
accomplices had a quarrel with him and his supporters.
That part of the evidence of these eyewitnesses had
remained well sustained on record. So far as witness
Niruben was concerned, she is the wife of the deceased
Ramanbhai Mohanbhai. The accused mounted an
assault on her husband in her bedroom and even
though she might not be knowing the accused earlier,
the faces of the accused mounting such an assault and
which caused fatal injuries to her husband can easily be
treated to have been imprinted in her mind and when
she could identify these accused in the Court even in
the absence of an identification parade, it could not be
said that her deposition was unnatural or she was
trying to falsely rope in the present accused by shielding
the real assaulters of her husband." (Emphasis
supplied)

In our opinion these observations would be fully applicable to

the situation in this case.




34. Undoubtedly, no test identification parade was held in

this case. It is also not disputed that the wife and the other

eye-witnesses PW 2 and 3 were asked to identify the accused

for the first time in the court, some eight and a half years after

the incident. We have noticed in detail the manner in which


35
the widow in this case witnessed the brutal murder of her

husband, right in front of her eyes in broad day light. In such

circumstances, it would be difficult, if not impossible, for her

to forget the faces of the assailants. They would be imprinted

on her psyche for ever. She had come face to face with the

assailants. The murder was committed in broad day light. She

would have no reason whatsoever to falsely implicate the

appellants. In court, she had categorically deposed and

identified each of the assailants. She has been absolutely

truthful and straight forward. It has come in evidence that the

accused (A1) lives very near to the house of the deceased. In

such circumstances she could easily have said that she had

known A1 earlier. There are no embellishments seen in her

evidence throughout. The High Court, in our opinion, rightly

rejected the submission that non holding of the test

identification parade has caused any prejudice to the accused.

The evidence of PW1 is fully supported/corroborated by the

evidence of PW2 and PW3 on the point of second assault.

Further more they have identified all the accused in court.




36
Their identification is further strengthened by the fact that all

the accused were known to the two witnesses earlier.

Therefore, they were identified by name in court.



35. Upon a due consideration of the entire facts and

circumstances of this case, we are of the considered opinion

that the judgment of the High Court does not call for any

interference. The appeals are dismissed.




.................................J.
[B.Sudershan Reddy]




New Delhi; ..................................J.
September 1, 2010. [Surinder Singh Nijjar]




37