published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40572
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1533 OF 2009
Nagappan …. Appellant(s)
J U D G M E N T
1) This appeal has been filed against the judgment and order dated
12.04.2006 passed by the High Court of Judicature at Madras in Criminal
Appeal No. 1861 of 2002 whereby the High Court dismissed the appeal filed
by the appellants therein and confirmed the order of conviction and
sentence dated 20.12.2002 passed by the Court of Additional District and
Sessions Judge-cum-Chief Judicial Magistrate, Cuddalore in Sessions Case
No. 230 of 2000.
2) Brief facts
(a) The case relates to the death of a person by name Pasupathy, resident
of Periya Irusampalayam village, committed by Sivaraman (A-1), Mano (A-2),
Nagappan (A-3) and Tamil@Tamilvanan (A-4) on account of enmity between the
deceased-Pasupathy and Sivaraman (A-1). At one point of time, there was a
quarrel between Sivaraman (A-1) and one Srinivasan (DW-1) which was
pacified by Pasupathy and thereby A-1 had an impression that Pasupathy is
in support of Srinivasan (DW-1). Due to this kind of impression, A-1
planned to eliminate Pasupathy.
(b) In order to materialize the same, on 08.05.2000, at 08:30 p.m., A-1
to A-4, assembled near the road leading to the graveyard of Periya
Irusampalayam village with an ulterior motive of killing Pasupathy. At the
relevant time, Sivaraj (PW-1) and Ganapathy (PW-3), who are brothers and
relatives of Pasupathy, along with Vijayan, Murugan, Babu and Veerappan
were having conversation near the electric post on the way to graveyard and
Pasupathy was coming towards the same direction. On seeing Pasupathy, the
accused persons, in order to grab the opportunity of killing him, attacked
him using knives, stick and iron pipe. A-1 and A-2 inflicted injuries on
the deceased using knives from behind on the head and neck respectively. A-
3 attacked Pasupathy with a stick whereas A-4 attacked him using iron pipe
over the rear portion of his neck. When PW-1 and others came to rescue
Pasupathy, the accused persons ran away from the spot leaving behind the
weapons used in the incident. Pasupathy was immediately taken to the
hospital but he died on the way.
(c) On the very next day, i.e., on 09.05.2000, at 05:00 a.m., PW-1 lodged
a complaint at Reddichavadi Police Station which came to be registered as
Crime No. 132 of 2000 under Section 302 of the Indian Penal Code, 1860 (in
short ‘the IPC’).
(d) After investigation, the case was committed to the Court of
Additional District and Sessions Judge-cum-Chief Judicial Magistrate,
Cuddalore under Section 302 read with Section 34 of IPC which was numbered
as Sessions Case No. 230 of 2000. The Additional District and Sessions
Judge, by order dated 20.12.2002, convicted A-1 to A-4 for the offence
punishable under Section 302 read with Section 34 of IPC and sentenced them
to undergo imprisonment for life along with a fine of Rs. 4,000/- each, in
default, to further undergo rigorous imprisonment (RI) for 1 (one) year.
(e) Aggrieved by the said order, A-1 to A-3 preferred Criminal Appeal No.
1861 of 2002 before the High Court. The Division Bench of the High Court,
by order dated 12.04.2006, dismissed their appeal by confirming the
conviction and sentence imposed by the trial Court.
(f) Against the said order, Nagappan (the appellant herein and A-3
therein) has filed this appeal by way of special leave before this Court.
3) Heard Mr. K.K. Mani, learned counsel for the appellant-accused and
Mr. M. Yogesh Khanna, learned counsel for the respondent-State.
4) Mr. K.K. Mani, learned counsel for the appellant, at the foremost,
submitted that the conviction solely based on the evidence of Sivaraj (PW-
1) and Ganapathy (PW-3), who are brothers and interested/related eye-
witnesses, cannot be sustained in the absence of corroboration from other
witnesses. He further submitted that both the courts below failed to
notice the fact that the medical evidence did not support the version of
the prosecution in respect of the appellant (A-3) and in fact contrary to
the evidence of PW-1 and PW-3 and, therefore, the conviction and sentence
of the appellant is liable to be set aside.
5) On the other hand, Mr. M. Yogesh Khanna, learned counsel for the
State submitted that merely because the eye-witnesses in the case on hand,
namely, PW-1 and PW-3, are brothers/related to the deceased, their evidence
cannot be eschewed. According to him, the role of the Court is to
scrutinize the evidence carefully. He also pointed out that in addition to
the evidence of said eye-witnesses, medical evidence through Doctor (PW-10)
also supports the prosecution case, and hence, there is no valid ground for
6) We have carefully considered the rival submissions and perused all
the relevant materials.
7) As regards the first contention about the admissibility of the
evidence of PW-1 and PW-3 being closely related to each other and the
deceased, first of all, there is no bar in considering the evidence of
relatives. It is true that in the case on hand, other witnesses turned
hostile and not supported the case of the prosecution. The prosecution
heavily relied on the evidence of PW-1, PW-3 and PW-10. The trial Court
and the High Court, in view of their relationship, closely analysed their
statements and ultimately found that their evidence is clear, cogent and
without considerable contradiction as claimed by their counsel. This
Court, in series of decisions, has held that where the evidence of
“interested witnesses” is consistent and duly corroborated by medical
evidence, it is not possible to discard the same merely on the ground that
they were interested witnesses. In other words, relationship is not a
factor to affect credibility of a witness. [ vide Dalip Singh & Ors. vs.
State of Punjab, AIR 1953 SC 364, Guli Chand & Ors. vs. State of Rajasthan,
(1974) 3 SCC 698, Vadivelu Thevar vs. The State of Madras, AIR 1957 SC 614,
Masalti & Ors. vs. The State of U.P., AIR 1965 SC 202, The State of Punjab
vs. Jagir Singh & Ors. (1974) 3 SCC 277 = AIR 1973 SC 2407, Lehna vs. State
of Haryana, (2002) 3 SCC 76, Sucha Singh & Anr. vs. State of Punjab, (2003)
7 SCC 643 = 2003(6) JT SC 348, Israr vs. State of U.P., (2005) 9 SCC 616,
S. Sudershan Reddy & Ors. vs. State of A.P., (2006) 10 SCC 163 = AIR 2006
SC 2716 and Abdul Rashid Abdul Rahiman Patel & Ors. vs. State of
Maharashtra JT 2007 (9) SC 194, Waman and Others vs. State of Maharashtra,
(2011) 7 SCC 295, State of Haryana vs. Shakuntla and Others, (2012) 5 SCC
171, Raju @ Balachandran & Ors. vs. State of Tamil Nadu, 2012 (11) Scale
357, Subal Ghorai & Ors. vs. State of West Bengal, (2013) 4 SCC 607].
8) In the light of the above principles, let us consider the
acceptability or otherwise of the evidence of Sivaraj (PW-1) and Ganapathy
(PW-3). In view of the stand taken by the appellant, we have analysed the
evidence of PWs 1 & 3. As rightly observed by the courts below, their
evidence is clear, cogent and without much contradiction. In categorical
terms, PWs 1 & 3 asserted before the Court that Sivaraman (A-1) and Mano (A-
2) caused cut injuries to Pasupathy (deceased) using knives (M.Os 9 & 10)
and Nagappan – the appellant herein (A-3), attacked the deceased with a
stick and caused extensive injuries upon the head, neck and other places
resulting into his death on the way to hospital. No doubt, they mentioned
that the appellant (A-3) attacked Pasupathy with a stick, however, our
analysis shows that the evidence of PW-1 and PW-3 clearly implicated A-1
and A-2 and the courts below have rightly accepted the case of the
prosecution. Insofar as the role of the appellant (A-3) is concerned, even
according to the eye witnesses, viz., PWs 1 & 3, he attacked the deceased
with a stick. There is no specific assertion about the exact blow on the
head by use of stick by the appellant (A-3). They merely stated that A-3
used the stick and hit on the back. There is not even a whisper that the
stick used by the appellant (A-3) hit on the neck or head of the deceased.
We are satisfied that the evidence of PW-1 and PW-3 are not sufficient to
convict the appellant (A-3) under Section 302.
9) Now let us consider the medical evidence. Doctor (PW-10), who
conducted the post mortem on the dead body, in his evidence, has stated
that he conducted the post mortem at 12.30 p.m. on 09.05.2000 and found the
following injuries on the dead body:
“1. Bluish discolouration and swelling present over right upper eye
2. Lacerated injury of 4 cm x 1 cm bone deep present over left
Parietal region of head with fracture of underlying bone.
3. Lacerated injury of 5 cm x 1 cm bone deep over left occipital
region of head.
4. Lacerated injury of 4cm x 1 cm bone deep present over left
occipital region of head.
5. Obliquely placed incised wound 10 x 1.5 bone deep with fracture
of underlying bone present over back of neck behind left ear.”
PW-10 further stated that the deceased appeared to have died of the wounds
on the head 6 to 24 hours before the post mortem. In other words, he
asserted that the deceased died due to head injuries. He explained that
the deceased had 4 injuries on the head and one swelling injury over the
right eye. He further explained that out of 4 injuries on the head, two
were on the rear left side, one injury was found on the rear of the head
and one injury was found near the left ear. According to him, injury Nos.
2 to 5 were at bone depth. He also stated that the 5th injury was cut
injury. Injury Nos. 2 to 4 were lacerated injuries. Exh. P-10 is the post
mortem certificate issued by him. Admittedly, the stick alleged to have
been used by the appellant (A-3) was not shown to the Doctor (PW-10). In
his cross examination, he admitted that he did not remember that the police
had enquired by showing the weapons to him. He also stated that Injury
Nos. 1-4 may be possible by attack with iron pipe. He also admitted that
there was no injury on the back of the deceased person. He concluded that
there was no other injury other than what he had stated in the examination-
in-chief as well as noted in the post mortem certificate (Ex.P-10).
10) In the earlier paragraph of our discussion, we mentioned the minimal
role alleged to have been played by the appellant (A-3). Even PWs 1 & 3
have not specifically stated, namely, whether the stick used by the
appellant (A-3) struck on the head or neck. In the post mortem report as
well as in the evidence of the Doctor (PW-10), absolutely, there is no
reference of any injury on the back of the deceased person. Considering
the fact that even as per the prosecution case, A-1 and A-2 were armed with
knives, A-4 was armed with iron rod and A-3 was holding only stick, in the
absence of specific assertion by PWs 1 & 3 about the specific role of the
appellant (A-3) and no medical evidence from the Doctor in the post mortem
certificate, we are of the view that the conviction and the ultimate
sentence in respect of the appellant (A-3) cannot be sustained. We are
satisfied that both the courts below failed to take note of the fact that
the medical evidence has not supported the version of the prosecution in
respect of the appellant (A-3) and in fact contrary to the evidence of PWs
1 & 3, therefore, the conviction and sentence of the appellant is liable to
be set aside. The conclusion of the High Court that the appellant along
with others attacked the deceased with intention to cause injuries is
without any basis and not supported by acceptable evidence. Therefore, the
conviction under Section 302 read with Section 34 IPC insofar as the
appellant is concerned is liable to be set aside.
11) In the light of the above discussion, the conviction and sentence of
the appellant under Section 302 read with Section 34 IPC is set aside. The
appeal is allowed. The appellant is directed to be released forthwith, if
not required in any other case.
JULY 17, 2013.