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Wednesday, July 24, 2013

Acquittal =Death was caused by head injuries - as per doctor head injuries may be caused by iron pipe - No oral evidence that any one of the accused caused 1 - 4 heard injuries with iron pipe = medical evidence did not support the version of the prosecution = 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.= 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.

        published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40572
REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1533 OF 2009



Nagappan                                                 .... Appellant(s)

            Versus

State by Inspector of Police, Tamil Nadu         .... Respondent(s)







                               J U D G M E N T



P.Sathasivam,J.

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.

Contentions:

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
interference.

6)    We have carefully considered the rival  submissions  and  perused  all
the relevant materials.

Discussion:

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
      lid.

      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.



                                  ………….…………………………J.


                                       (P. SATHASIVAM)



































                                    ………….…………………………J.


                                      (J. CHELAMESWAR)
NEW DELHI;
JULY 17, 2013.




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