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Wednesday, September 11, 2013

Whether the offence falls under Section 304 Part II IPC and not Section 302 IPC = the manner in which the deceased was assaulted and the brutality of the assault shows that the accused formed an unlawful assembly with the object of killing the deceased. The blow landed on the deceased by Perumal had brought the deceased to the ground whereupon the accused continued brutalising the deceased with the help of stones, in the process crushing his head and squeezing his testicles. We have no manner of doubt that the nature of injuries caused to the deceased were clearly indicative of the accused having had the intention of killing him. The use of the words “with that he must go” by appellant No.2 is only a manifestation of that intention. 18. There is, therefore, no room for altering the conviction from Section 302 to Section 304 Part II, IPC as argued by the learned counsel. 19. In the result this appeal fails and is hereby dismissed.

                       published in                       

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPEAL NO.1623 OF 2009

Shanmugam and Anr.                           …Appellants


State Rep. by Inspector of Police, T. Nadu   …Respondent

                               J U D G M E N T


1.    This appeal arises out of a judgment  and  order  dated  24th  August,
2006 passed by the High Court of Judicature of Madras  at  Madurai,  whereby
Criminal Appeal No.857 of 2004  filed  by  the  appellants  and  two  others
against their conviction for murder and sentence of  life  imprisonment  has
been dismissed.

2.    On 5th January, 1999 at about 3.00 p.m. the deceased  Asokan  was  one
amongst 200 other mourners who had assembled to attend the  cremation  of  a
near relative who  had  passed  away  and  was  being  cremated  at  village
Veerappanayakan Patti.  Adikesavan (PW-1), Rajendran (PW-4), Vellingiri (PW-
5) and Paneer (PW-10)  were  also  among  those  present  at  the  cremation
ground. The prosecution case is that, that on account of strained  relations
between the accused and the deceased arising out of rivalry in  relation  to
smuggling of sandalwood by the two groups, there was, a few days earlier  to
the date of occurrence, a quarrel between them which had  turned  ugly  with
the two groups assaulting each other. The accused were,  therefore,  looking
for an opportunity to get even with deceased which  opportunity  came  their
way when the deceased who was a  resident  of  another  village  joined  the
funeral and the cremation ceremony.  It so happened that no sooner were  the
mortal remains of the departed soul consigned to flames, Perumal one of  the
accused (since deceased) saw Asokan standing near  a  coconut  tree  in  the
former’s land, and started  moving  towards  him  with  the  remaining  four
accused including the appellants in this appeal. Perumal who had  picked  up
a stick gave a blow to the  deceased  on  the  head  because  of  which  the
deceased collapsed to the ground. Shanmugam (A-1), appellant in the  present
appeal, in the meantime picked up a stone and hit the deceased on  his  face
repeatedly while Mahendran (A-2)  caught  hold  of  his  legs.  Raghu  (A-3)
squeezed the testicles of Asokan while Ramajayam (A-4),  appellant  No.2  in
this appeal,  assaulted  the  deceased  with  a  heavy  stone  on  his  head
exclaiming “with that  he  must  go”.  The  injuries  so  inflicted  crushed
Asokan’s head and killed him on the spot. Adikesavan (PW-1), Rajendran  (PW-
4) and Vellingiri (PW-5) tried to  intervene  but  were  threatened  by  the
accused persons that they  would  also  meet  the  same  fate.  Scared,  the
witnesses ran for safety while the accused made  their  escape  good.  Those
attending the cremation also ran away in panic. Adikesavan  (PW-1)  returned
to the crime scene and found his younger brother lying dead  with  his  head
shattered. He informed Sudha (PW-3) about the incident and rushed  to  Harur
to meet his younger brother Ramalingam (PW-2) who accompanied  him  back  to
the crime scene in a car. The incident was then  reported  at  Harur  Police
Station in writing by Adikesavan  (PW-1).  The  police  swung  into  action,
conducted an inquest and seized the stick and stones  used  by  the  accused
persons for the assault and the blood stained clothes  of  the  deceased.  A
chargesheet was eventually filed by the Investigating Officer  that  led  to
their trial before the Additional Sessions Judge, Dharamapuri  who  recorded
the statements of as  many  as  11  witnesses  produced  on  behalf  of  the
prosecution. The defence did not choose to lead any oral evidence.

3.     The  Trial  Court  eventually  came  to  the  conclusion   that   the
prosecution  had  brought  home  the  guilt  to  the  accused  persons   and
accordingly convicted them for murder  punishable  under  Section  302  read
with Section 34 IPC and sentenced them to  undergo  imprisonment  for  life.
Aggrieved  by  the  judgment  and  order  passed  by  the  Trial  Court  the
appellants and two other surviving accused  persons  filed  Criminal  Appeal
No.857 of 2004 before the High Court of Judicature  of  Madras  at  Madurai,
Perumal the fifth accused  having  passed  away  in  the  meantime.  By  its
judgment and order impugned in this appeal  the  High  Court  has  concurred
with the view taken  by  the  Trial  Court  and  found  the  conviction  and
sentence to be perfectly  justified  upon  a  reappraisal  of  the  evidence
adduced before the Trial Court. The present appeal filed by two out  of  the
four accused persons calls in question the correctness of the said  judgment
and order of the High Court.

4.    We have heard learned counsel for the parties at  considerable  length
who have taken us through the evidence on record. The Trial  Court  as  also
the High Court have both placed reliance upon the deposition  of  Adikesavan
(PW-1) who was an eye witness to the occurrence. The Courts below have  also
noted  that  while  Rajendran  (PW-4)  and  Vellingiri  (PW-5)  have  turned
hostile, they have nevertheless supported the prosecution case in the  past.
The Courts also found that enmity  between  the  deceased  and  the  accused
persons on account of  smuggling  of  sandalwood  was  the  motive  for  the
commission of the crime which motive was satisfactorily established  on  the
evidence adduced at the trial.

5.    Appearing for the appellants Mr. Srilok  N.  Rath  made  a  three-fold
submission before us. Firstly, it was contended that there was  un-explained
delay not only in the lodging of the first information report  but  also  in
dispatching a copy of the same to  the  jurisdictional  Magistrate.  In  the
absence  of  any  cogent  and  acceptable  explanation  for  the  delay  the
prosecution case was rendered doubtful. Secondly, it was contended that  the
prosecution case rests entirely on the deposition of Adikesavan  (PW-1)  who
was closely related to  the  deceased  and  could  not  be  said  to  be  an
independent witness. Relying upon the  decision  of  this  Court  in  Mahtab
Singh & Anr. v. State of U.P. (2009) 13  SCC  670,  it  was  contended  that
although  the  deposition  of  an  interested  witness  was  not  by  itself
inadmissible  in  evidence,  prudence  demanded  that   his   testimony   be
scrutinized  more  closely  and  carefully.  A  careful  evaluation  of  the
evidence of Adikesavan (PW-1) did not, according  to  the  learned  counsel,
inspire confidence which was  full  of  embellishments  and  improbabilities
sufficient to demolish his credibility.

6.    Thirdly, it was contended  that  even  if  the  prosecution  case  was
accepted in toto the offence could not go beyond Section 304 Part II of  the
IPC. Reliance was  in  support  placed  by  the  learned  counsel  upon  the
decision of this Court in Camilo Vaz v. State of Goa (2000) 9 SCC 1.

7.    The incident in the case at hand took place at  around  3.00  p.m.  on
the 5th of January, 1999 in a village.  The first information  report  about
the same was lodged by Adikesavan (PW-1) at 10.00 p.m. on the same day.  The
contention urged on behalf of the appellant was  that  the  delay  of  seven
hours in the lodging of the report by Adikesavan (PW-1)  was  inordinate  in
the facts and circumstances of the case and ought to render the  prosecution
version suspect on that count itself.  We do not think  so.   Delay  in  the
lodging of the FIR is not by itself fatal to the  case  of  the  prosecution
nor can delay itself create any suspicion  about  the  truthfulness  of  the
version given by the informant just as a prompt lodging of  the  report  may
be no guarantee about its being wholly truthful. So long as there is  cogent
and acceptable explanation offered for the delay it loses its  significance.
Whether or not the explanation is acceptable will depend upon the  facts  of
each case. There is no cut and dried formula  for  determining  whether  the
explanation is or is not acceptable.  Having said that, Courts need to  bear
in mind that delay in lodging of the FIR  deprives  it  of  spontaneity  and
brings in chances of embellishments like exaggerations  and  distortions  in
the story which if narrated at the earliest  point  of  time  may  have  had
different contours than what is eventually  recorded  in  a  delayed  report
about the occurrence. On the flipside a prompt lodging  of  the  report  may
not carry a  presumption  of  truth  with  it.  Human  minds  are  much  too
versatile  and  innovative  to  be  subject  to   any   such   strait-jacket
inferences. Embellishments, distortions, and false implication of  innocence
may come not only out of deliberation which the victim party may hold  among
themselves or with their well-wishers and supporters, but  also  on  account
of quick thinking especially when all that it takes to do so is to name  all
those whom the informant or his advisors perceive to be guilty  or  inimical
towards them.  Decisions of this Court as  to  the  advantage  of  a  report
lodged promptly and possibility of embellishment in cases where  the  report
is delayed, as also the approach which  the  Courts  ought  to  adopt  while
considering the effect of such delay in a given case are a  legion  and  the
principles of law much too well settled to require any  elaboration  or  re-
statement.  Reference can all the same be made to Meharaj Singh v. State  of
U.P (1994) 5 SCC 188, Thulia Kali v.  State  of  Tamil  Nadu  (1972)  Crl.LJ
1296, State of Himachal Pradesh v. Gian Chand (2001) 6 SCC  71,  Ramdas  and
Ors. v. State of Maharashtra (2007) 2 SCC  170,  Kilakkatha  Parambath  Sasi
and Ors. v. State of Kerala AIR 2011 SC 1064 and Harivandan  Babubhai  Patel
v. State of Gujarat (2013) 7 SCC 45.

8.    There is, in the case before us, delay of hardly  a  few  hours  which
the prosecution has explained to the satisfaction of  the  Trial  Court  and
the High Court both.  Adikesavan (PW-1), it appears, returned to  the  place
of occurrence after the accused persons had left only to  find  his  brother
dead with his face and head severely injured.  According to the witness,  he
travelled to Harur to inform his brother- Ramalingam (PW-2) who  accompanied
him to the place of occurrence in a car  and  then  to  the  police  station
where Adikesavan (PW-1) lodged the first information report. Some  time  was
obviously wasted in this  process  of  travel  to  and  from  the  place  of
occurrence and to the police station for lodging  the  report.   The  report
gave a detailed account of the incident.  No  deficiency  in  terms  of  the
omission of the names or the role played by the accused was pointed  out  to
us by the learned counsel appearing for the appellants.  The  version  given
by Adikesavan (PW-1) has remained consistent with the version given  in  the
first information report. There is, in  that  view,  no  reason  for  us  to
disbelieve the prosecution case only because the  first  information  report
was  delayed  by  a  few  hours  especially  when   the   delay   has   been
satisfactorily explained.  The  first  limb  of  the  argument  advanced  by
counsel for the appellants has, therefore, failed and is hereby rejected.

9.    That brings us to  the  question  whether  Adikesavan   (PW-1)  was  a
reliable witness. The  contention,  as  seen  earlier,  is  that  since  the
witness happened to be the brother of the deceased, he must be  taken  as  a
partisan witness on account of his  close  relation  with  the  victim.  The
difference between a partisan witness on one hand and an interested  witness
who is unrelated to the victim but  has  some  beneficial  interest  in  the
outcome of a litigation on the other, remains obscure.  This Court  in  Raju
@ Balachandran and Ors. v. State  of  Tamil  Nadu  AIR  2013  SC  983,  very
recently attempted a possible categorization  of  witnesses  and  identified
broadly four such categories in the following words:

           “33. For the time being, we are concerned with  four  categories
           of witnesses - a third party disinterested and unrelated witness
           (such as a bystander or passer-by);  a  third  party  interested
           witness (such as a trap witness); a  related  and  therefore  an
           interested witness (such as the wife of the  victim)  having  an
           interest in seeing that the accused is punished; a  related  and
           therefore an interested witness (such as the wife or brother  of
           the victim) having an interest in seeing  the  accused  punished
           and also having some enmity with the accused. But, more than the
           categorization  of  a  witness,  the  issue  really  is  one  of
           appreciation of the  evidence  of  a  witness.  A  court  should
           examine the evidence of a related and interested witness  having
           an interest in seeing the accused punished and also having  some
           enmity with the accused with greater care and caution  than  the
           evidence of a third party disinterested and  unrelated  witness.
           This is all that is expected and required.”

                                                         (emphasis supplied)

10.   As observed by this Court far more important  than  categorization  of
witnesses is the question of appreciation of their  evidence.   The  essence
of any such appreciation is to  determine  whether  the  deposition  of  the
witness on to the incident is truthful hence  acceptable.  While  doing  so,
the Court can assume that a related witness would not ordinarily shield  the
real offender to falsely implicate an innocent person.  In cases  where  the
witness was inimically disposed towards the  accused,  the  Courts  have  no
doubt at times noticed a tendency to implicate an innocent person also,  but
before the Court can reject the deposition of such  a  witness  the  accused
must lay a foundation for the argument that his  false  implication  springs
from such enmity.  The mere  fact  that  the  witness  was  related  to  the
accused does not provide that foundation.  It  may  on  the  contrary  be  a
circumstance for the Court to believe that the version  of  the  witness  is
truthful on the simple logic that such a witness would not screen  the  real
culprit to falsely implicate an  innocent.   Suffice  it  to  say  that  the
process of evaluation of evidence of witnesses whether they are partisan  or
interested (assuming there is  a  difference  between  the  two)  is  to  be
undertaken in the facts  of  each  case  having  regard  to  ordinary  human
conduct prejudices and predilections.

11.   The approach which the Court ought to adopt in such matters  has  been
examined by this Court in several cases, reference to which  is  unnecessary
except a few that should suffice.  In Dalip Singh v. State of Punjab  (1954)
1 SCR 145 this Court observed:

           “26. A witness is normally to be considered  independent  unless
           he or she springs from sources which are likely  to  be  tainted
           and that usually means unless the witness  has  cause,  such  as
           enmity against the accused, to wish to  implicate  him  falsely.
           Ordinarily, a close relative would be the  last  to  screen  the
           real culprit and falsely implicate an  innocent  person.  It  is
           true, when feelings run high and there  is  personal  cause  for
           enmity, that there is a tendency to drag in an  innocent  person
           against whom a witness has a grudge along with the  guilty,  but
           foundation must be laid for such a criticism and the  mere  fact
           of relationship far from being a  foundation  is  often  a  sure
           guarantee of truth. However, we are not attempting any  sweeping
           generalisation. Each case must be judged on its own  facts.  Our
           observations are only made  to  combat  what  is  so  often  put
           forward in cases before us as a general rule of prudence.  There
           is no such general rule. Each case must be  limited  to  and  be
           governed by its own facts.”

                                                         (emphasis supplied)

12.   The above was followed by this Court  in  Masalti  v.  State  of  U.P.
(1964) 8 SCR 133 where this Court observed:

           “But it  would,  we  think,  be  unreasonable  to  contend  that
           evidence given by witnesses should  be  discarded  only  on  the
           ground  that  it  is  evidence   of   partisan   or   interested
           witnesses.....The mechanical rejection of such evidence  on  the
           sole ground that it is partisan would invariably lead to failure
           of justice. No hard and fast rule can be laid  down  as  to  how
           much evidence should be appreciated. Judicial approach has to be
           cautions in dealing with such evidence; but the plea  that  such
           evidence should be rejected because it  is  partisan  cannot  be
           accepted as correct.”

13.   We may also refer to the decision of this  Court  in  Darya  Singh  v.
State of Punjab (1964) 3 SCR 397 and a more recent  reminder  of  the  legal
principles in Takdir Samsuddin Sheikh v. State of Gujarat  and  Anr.  (2011)
10 SCC 158 where this Court observed:

           “(i) While appreciating the evidence of witness considering  him
           as the interested witness, the court must bear in mind that  the
           term 'interested' postulates that the  witness  must  have  some
           direct interest in having  the  accused  somehow  or  the  other
           convicted for some other reason. (Vide: Kartik Malhar  v.  State
           of Bihar (1996) 1 SCC 614; and  Rakesh  and  Anr.  v.  State  of
           Madhya Pradesh JT 2011 (10) SC 525).

           (ii) This Court has consistently held that as a general rule the
           Court can and may act on  the  testimony  of  a  single  witness
           provided he is wholly reliable. There is no legal impediment  in
           convicting a person on the sole testimony of a  single  witness.
           That is the logic of Section 134 of the Evidence Act, 1872.  But
           if there are doubts about the testimony, the court  will  insist
           on corroboration. In fact, it is not the number,  the  quantity,
           but the quality that is material. The time-honoured principle is
           that evidence has to be weighed and not  counted.  The  test  is
           whether the evidence has a ring of truth,  is  cogent,  credible
           and trustworthy or otherwise. The legal system has laid emphasis
           on  value,  weight  and  quality  of  evidence  rather  than  on
           quantity,  multiplicity  or  plurality  of  witnesses.  It   is,
           therefore, open to a competent court  to  fully  and  completely
           rely on a solitary witness and record conviction. Conversely, it
           may  acquit  the  accused  in  spite  of  testimony  of  several
           witnesses if it is not satisfied about the quality of  evidence.
           (See: Vadivelu Thevar v. The State of Madras AIR  1957  SC  614;
           Sunil Kumar v. State Govt. of NCT of Delhi (2003)  11  SCC  367;
           Namdeo v. State of Maharashtra (2007)  14  SCC  150;  and  Bipin
           Kumar Mondal v. State of West Bengal AIR 2010 SC 3638).”

                                                         (emphasis supplied)

14.   To the same effect are the decisions of this Court in  Amit  v.  State
of Uttar Pradesh (2012) 4 SCC 107, Bur Singh and Anr.  v.  State  of  Punjab
AIR 2009 SC 157, and Sate of H.P. v. Kishanpal  and  Ors.  2008  (11)  SCALE

15.   In the case at  hand the   deposition of Adikesavan  (PW-1)  has  been
found to be reliable by the Trial Court as also the High  Court,  no  matter
he was related closely to the deceased.  There  is  nothing  in  the  cross-
examination of the witness that could be said  to  have  adversely  affected
the credibility of this witness nor is there anything to suggest that  apart
from his being a relative of  the  deceased  he  had  any  other  reason  to
falsely implicate the accused persons or  any  one  of  them.   The  version
given by the witness as to the manner in which  the  deceased  was  done  to
death by the accused persons gets support from the medical evidence  led  in
the case. The doctor conducting the post-mortem examination found the  death
to be homicidal caused by the  following  injuries  on  the  person  of  the
deceased :

           “External Injuries: Face – Mouth  lacerated.  Lower  lip,  lower
           jaw, nose – lacerated.  Blood stained liquid  oozing   from  the
           mouth.  Mandible and all the teeth i the lower jaw  broken  into
           pieces.  Neck – A skin colour contusion over the  neck  present.
           Limbs – contusion over right shoulder. Abdomen –  Left  testicle
           crusted and exposed of the skin.

                 Internal Examination: Skull – Base of  skull  fracture  in
           the post cranial fossa crossing the midline.  Bain  –  Congested
           and contained about 100 ml of clotted blood.  Neck – Hyoid  bone
           intact.  Thorax – Sternum intact.  No  rib  fracture.   Lungs  –
           Congested. Right – 450 gms. Left – 420 gms. Heart  –  Congested.
           Empty 150 gms. Liver – Congested. Intact – 1100  gms.  Kidney  –
           Congested – intact – 120 gms. Each. Bladder – Empty.  Stomach  –
           contains about 50 gms. Of undigested food. Spleen – Congested  –
           90 gms.”

16.   It is noteworthy that the other two witnesses namely Rajendran  (PW-4)
and Vellingiri (PW-5) also supported the prosecution case,  no  matter  only
in part.  The fact that the deceased was present  at  the  cremation  ground
where the occurrence took place is proved from their  depositions  as  well.
It is equally important to note that one of  the  accused  persons,  namely,
Perumal (since deceased) had according to these two  witnesses  also  picked
up a stick and assaulted the deceased on his head as a result of  which  the
deceased had collapsed to the ground. The rest of the prosecution  case,  on
the role played  by  the  other  accused  persons  in  the  killing  of  the
deceased, has not been supported by these two witnesses  who  were  declared
hostile and cross-examined by the  prosecution.  Even  so,  the  prosecution
case as to the manner in which assaults started and the place of  occurrence
was proved by the deposition of Adikesavan (PW-1) whom we find no reason  to

17.   That brings us to the contention urged on  behalf  of  the  appellants
that even if the prosecution version is accepted in  toto,  the  case  falls
under Section 304 Part II  IPC  and  not  Section  302  IPC  for  which  the
appellants have been convicted.
There is, in our view,  no  merit  in  that
contention either. We say so because of
the manner  in  which  the  deceased
was assaulted and the brutality  of  the  assault  shows  that  the  accused
formed an unlawful assembly with the object of  killing  the  deceased.  
blow landed on the deceased by Perumal  had  brought  the  deceased  to  the
ground whereupon the accused continued brutalising  the  deceased  with  the
help of  stones,  in  the  process  crushing  his  head  and  squeezing  his
We have no manner of doubt that the nature  of  injuries  caused
to the deceased were clearly  indicative  of  the  accused  having  had  the
intention of killing him. The use of the words “with that  he  must  go”  by
appellant No.2 is only a manifestation of that intention.

18.   There is, therefore, no room for altering the conviction from  Section
302 to Section 304 Part II, IPC as argued by the learned counsel.

19.   In the result this appeal fails and is hereby dismissed.

                           (T.S. THAKUR)

New Delhi                        (VIKRAMAJIT SEN)
September 11, 2013

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