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        REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1623 OF 2009

Shanmugam and Anr. …Appellants

Versus

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

J U D G M E N T

T.S. THAKUR, J.

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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.

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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  

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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   

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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 233.

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  

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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  

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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 disbelieve.

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  

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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.   

………………………………….……….…..…J.     (T.S. THAKUR)

     ………………………..…………………..…..…J. New Delhi            (VIKRAMAJIT SEN) September 11, 2013

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