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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     879      OF     2010   

Arumugam ….Appellant

VERSUS

State Rep. by Insp. Of Police                .…Respondent

J     U     D     G     M     E     N     T   

Fakkir Mohamed Ibrahim Kalifulla, J.

1. This appeal, at the instance of accused No.1 is directed  

against the judgment of the Division Bench of the Madras High  

Court dated 12.12.2008 in Criminal Appeal 1089 of 2001 by  

which the High Court while confirming the conviction and  

sentence imposed on appellant-accused No.1 (A-1), set aside  

the conviction and sentence as against accused-6 (A-6) and  

acquitted him of the charges.   

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2. The case of the prosecution as projected before the Court  

below was that Murugesan (PW-1) and Sankar (deceased) were  

brothers and were native of a place called Sooriyur.  As is the  

practice in their village, in the month of Markazhi (Tamil  

month), there used to be a game called Manju Virattu also  

called as Jalli Kattu in which bulls brought from other villages  

would be confined in an enclosure and then the bulls would be  

allowed to run, throwing a challenge to the youngsters to tame  

them and whosoever controls such bulls, used to get a reward  

in the function.  It is stated that on 09.01.2000 which was in  

the Tamil month of Markazhi, the bull belonging to the  

appellant, who belonged to the place called Thiruvalarchipatti  

participated in the function.  The deceased stated to have  

controlled the said bull and the appellant was stated to have  

been aggrieved by the so-called heroism of the deceased which  

resulted in alleged threat to the deceased.  Twelve days prior to  

the murder of the deceased, six persons including the  

appellant stated to have quarreled and also assaulted the  

deceased which, according to PW-1 was reported by the  

deceased to him (PW-1).  PW-1 appeared to have consoled the  

deceased by stating that they can report the conduct of the  

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appellant and others to the local Panchayat.  On 04.02.2000 at  

10.30 a.m., when the deceased along with PW-1 was waiting at  

the bus stand which place was known as Manthai, the  

appellant and other accused chased the deceased and caught  

hold of the deceased at Mamundi temple.  While the appellant  

inflicted cut injuries in the left arm of the deceased with the  

weapon called aruval, the other accused stated to have inflicted  

certain other injuries on the head, leg and the buttocks of the  

deceased.  On sustaining the injuries, the deceased stated to  

have fallen down.  He was carried by PW-1 to his residence  

and from there, after arranging taxi from nearby town called  

Thiruvaramboor shifted him to Trichy Government Hospital  

around 01.30 p.m.  The deceased was examined by Dr.  

Saminathan (PW-8) to whom the deceased informed that he  

was assaulted by six known persons.  However, it is stated  

that the deceased did not survive and breathed his last around  

2 p.m.  Based on the information given by PW-1, a case was  

registered by sub-Inspector Ethiraj (PW-9) as crime  

No.20/2000 in the Navalpattu Police Station for offences under  

Sections 147, 148, 341 and 302, Indian Penal Code (for short  

‘IPC’). Inspector Kailasanathan (PW-12) stated to have  

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simultaneously gone to the place of occurrence.  He prepared  

the observation Mahazar in the presence of witnesses and also  

prepared a model sketch Exhibit P-6.  The statements of  

witnesses were also recorded by him and then he went to the  

Government hospital, Trichy and prepared an inquest report  

Exhibit P-18.  He also stated to have examined other witnesses  

including PW-1. The body of the deceased was sent for post  

mortem on the same day.   On 05.02.2000, he enquired other  

witnesses and on 06.02.2000 at 4 p.m. Sakthivel (A-6) was  

arrested and based on the admissible portion of his statement  

five aruvals were stated to have been recovered from the thorn  

bush at 5.30 p.m. near a place called Koonavayil adjacent to  

Sulingu which were recovered in the presence of witnesses  

under Exhibit P-20.  The post mortem was conducted by Dr.  

Karthikeyan (PW-11) and the post mortem certificate was  

marked as Exhibit P-15.  The post mortem report disclosed as  

many as five injuries and the doctor opined that the deceased  

appeared to have died of shock and hemorrhage due to injury  

Nos.4 and 5.  

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3. All the accused were tried before the trial Court wherein  

the prosecution examined PWs-1 to 12, marked Exhibit P-1 to  

20 and M.O.s 1 to 10.  While M.O. 1 to 5 were the weapons,  

namely, aruval, M.O.6 was blood stained polyester lungi,  

M.O.-7 was blood stained Kasi towel, M.O.8 was blood stained  

sand, M.O.-9 was unstained sand and M.O.-10 was yellow and  

blue colour mixed lungi seized from the deceased.   

4. PW-1 to 3 were examined as eye witnesses.  However, in  

the course of the examination PW-2 and 3 turned hostile and  

PW-1 alone supported the case of the prosecution.  After the  

313 questioning in which all the accused denied their  

participation in the crime, the trial court analysed the  

materials placed before it and reached a conclusion that except  

A-1 and A-6, guilt was not made out as against others, namely,  

A-2, A-3, A-4 and A-5.  In the appeal preferred by the  

appellant-A-1 and A-6, the High Court set aside the conviction  

and sentence imposed on A-6 and confirmed the conviction  

and sentence imposed upon the appellant (A-1) herein.

5. We have heard Mr. Nagendra Rai, learned senior counsel  

for the appellant and Mr. B. Balaji, learned counsel for the  

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respondent State.  Mr. Rai, learned senior counsel raised three  

contentions.  He contended that there was delay in preferring  

the complaint and the registration of the FIR and, therefore, on  

that ground the case of the prosecution should fail.  It was  

then contended that as per the evidence of post mortem doctor  

(PW-11) injury Nos. 4 and 5 were fatal to the death of the  

deceased and those injuries were not attributed to the  

appellant –accused No.1 and when the other accused persons  

were released, the conviction and sentence imposed on the  

appellant cannot be sustained. In support of the said  

submission, learned counsel relied upon the deposition of PW-

1 himself.  Lastly, it was contended that even if the entire case  

is accepted, the case would fall under Section 304 Part II, IPC,  

and the appellant, having remained in jail for five years, no  

further punishment need be imposed.

6. As against the above submissions, Mr. Balaji, learned  

counsel for the State contended that there were enough  

evidence placed before the Court to hold that injury No.4 was  

caused at the instance of the appellant, that the said injury as  

described in the post mortem certificate was so grave in nature  

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and the post mortem doctor (PW-11) having opined that the  

said injury as well as injury No.5 were the cause of death of  

the deceased, the appellant was rightly convicted by the courts  

below.  Learned counsel further pointed out that the deceased  

was examined by Dr. Saminathan (PW-8) when he was alive.  

He also noted the injuries in Exhibit P-8 which tallied with the  

post mortem report Exhibit P-15 prepared by PW-11, that PW-

1 who witnessed the occurrence categorically stated that injury  

No.4 was inflicted by the appellant, that there is no reason to  

disbelieve the said version of PW-1.  Learned counsel,  

therefore, contended that the case of the prosecution as  

against the appellant in inflicting  injury No.4 on the deceased  

was consistent with Exhibit P-1 as well as the ocular evidence  

of PW-1 and, therefore, no ground was made out for the  

acquittal of the appellant. The learned counsel also contended  

that apart from the above, there is evidence to show that the  

deceased was threatened earlier also by the appellant and  

other accused, followed by which on 04.02.2000 he was  

murdered and, therefore, there is no question of invoking  

Section 304 part II, IPC to reduce the rigour of the offence  

found proved against the appellant.

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7. Having heard learned counsel for the appellant as well as  

the respondent State, we are also convinced that the appeal  

does not merit any consideration.  It is true that the whole case  

depends on the evidence of PW-1, the sole eye witness to the  

occurrence.  It is also true that he is the brother of the  

deceased.  It was not argued before us that since because he is  

the brother of the deceased, his version is liable to be thrown  

out.  In this context, it will be worthwhile to refer to the recent  

decision of this Court reported as - 2012 (1) SCC 529 – Jaisy  

@ Jayaseelan v. State Rep. by Inspector of Police. That was  

also a case where there were more than one witnesses and  

ultimately except PW-1 in that case, the other eye witnesses  

turned hostile.  PW-1 was also the brother of the deceased.  

This Court, while holding that on that ground alone his  

evidence could not be discarded, reiterated the law laid down  

by this Court in the decision reported as Sucha Singh &  

Another v. State of Punjab - 2003 (7) SCC 643 which has  

been extracted in para 9 of the Jaisy’s (supra) judgment.  The  

same can be usefully referred to hereunder.

“9. As stated by this Court in Sarwan Singh v. State of  Punjab and Sucha Singh v. State of Punjab it is not the law  that:

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“10. … the evidence of an interested witness should be  equated with that of a tainted witness or that of an  approver so as to require corroboration as a matter of  necessity. The evidence of an interested witness does not  suffer from any infirmity as such, but the courts require  as a rule of prudence, not as a rule of law, that the  evidence of such witnesses should be scrutinised with a  little care. Once     that     approach     is     made     and     the     court     is    satisfied     that     the     evidence     of     the     interested     witness     has     a    ring     of     truth     such     evidence     could     be     relied     upon     even    without     corroboration  .”       

    [emphasis added] This submission of the learned counsel is, therefore,  

rejected.”

8. Keeping the above legal perception in mind, when we  

examine the submission of learned counsel for the appellant,  

the contention that there was delay in registering the FIR does  

not cause any serious dent in the case of the prosecution.  

Such submission was dealt with by the trial Court itself in a  

detailed manner wherein it was noted that immediately after  

the occurrence, noting the condition of the deceased, PW-1  

took him to his house, arranged for a taxi to shift him to the  

hospital by which time it was 1.30 p.m.  Since the deceased  

was in a serious condition, it was quite apparent that PW-1 as  

his brother had to stay along with him in the hospital and as  

was expected, despite the treatment given to the deceased, he  

died in the hospital around 2 O’Clock.  The only other person  

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who was available with him was his mother Govindammal  

(PW-4).  The avocation of PW-1 is agriculture.  The deceased  

himself was working as a mason.  Having regard to the  

unfortunate occurrence to his deceased brother, he would have  

only concentrated in staying at the hospital to support his  

mother and for taking required other steps to deal with the  

dead body of the deceased.  Moreover, according to Ethiraj  

(PW-9) sub Inspector attached with the Navalpattu police  

station, he received information from the Trichy Government  

hospital at 13.45 hours and that he went to the hospital by  

14.45 hours where he recorded the statement of Murugesan  

(PW-1) and he registered the crime as Crime No.20/2000  

under Sections 147, 148, 341 and 302, IPC and recorded First  

Information Report and the express report-Exhibit P-9 was also  

forwarded to the Court through head constable 234.  Noting  

such sequence of events, from the time of the occurrence till  

the registration of the FIR, we do not find any substance in the  

plea of the appellant that there was delay in the registration of  

the FIR.  The said submission, therefore, stands rejected.   

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9. As far as the second submission, namely, that there was  

no evidence to connect the appellant to any of the injuries  

sustained by the deceased, here again as rightly contended by  

learned counsel for the State, we find that the said submission  

is not borne out by records.  While examining the said  

contention, we feel it appropriate to refer to injury No.1 as  

described by PW-8 the doctor who attended on the deceased  

immediately after his admission to the hospital at which point  

of time the deceased was alive.  The said injury was noted as  

first injury and was mentioned as an incised would measuring  

10 x 5 cm x bone deep over dorsal aspect of left elbow exposing  

elbow joint”.

10. In the post mortem report Exhibit P-15, the said injury  

has been noted as under:-

“(4) A transverse chop wound, 9cm x 4cm  exposing the underlying structures on the back of  upper third of left forearm, 4cm below the elbow  joint with marginal bruising dark red, O/E, the  edges are clean cut.  The underlying tendons,  muscles, blood vessels, nerves are found completely  cut.  Diffusion of blood into the surrounding tissues  present.  The portion of the left forearm distal to the  wound is found attached by the skin on the front  aspect.”

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11. The post mortem doctor PW-11 in his evidence which is  

in vernacular (Tamil), while describing the injury, made it clear  

that the tissues, the blood vessels, the nerves and the bones  

were completely cut and the front forearm was just hanging  

with the attached skin.  As far as the said injury was  

concerned, as pointed out by the counsel for the State, in  

Exhibit P-1, it was reported by PW-1 that at the time of  

occurrence, when his brother attended a telephonic call and  

was returning back near the bus stand, he was chased by A-1  

to A-6 who were armed with aruvals.  His brother was cornered  

by them in front of Mamundi temple and while A-2 Vijay  

Kumar held his brother, A-1 caused a cut injury on the left  

elbow of his brother and that his brother fell down to the left  

side.  Before the Court also, PW-1 reiterated the said version  

as against the appellant.  Therefore, it is too late in the day for  

the appellant to contend that he was not responsible for  

causing any fatal injury and that there was no evidence to the  

effect that he caused a fatal injury.   

12. At the risk of repetition, it will have to be stated that PW-

11, the post mortem doctor in his opinion made it clear that  

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the death of the deceased was caused by injury Nos.4 and 5.  

The High Court in para 11 of its judgment has only referred to  

the trial Court’s judgment in para 25 insofar as it related to  

the other accused and in particular relating to A-6 where the  

trial Court observed as regards others that when several  

persons were involved in an occurrence, it was not possible to  

say which accused caused which injury. The said observation  

made by the trial Court and referred to by the High Court  

cannot be cited out of context when there was direct evidence  

against the appellant connecting his part of inflicting injury  

No.4 on the deceased and the nature of injury was so grave.  

The post mortem doctor PW-11 clearly opined that the said  

injury along with injury No.5 was the cause of the death of the  

deceased.

13. In such circumstances, there is no scope to compare the  

extent of involvement of the appellant in the crime vis-à-vis the  

other accused to countenance the submission of learned senior  

counsel for the appellant to treat him on par with the other  

accused persons who were acquitted.  With this, when we  

come to the last of the submissions made by the learned senior  

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counsel, namely, that at best the conviction can only fall under  

Section 304 Part II, IPC, here again we are not in a position to  

accede to such submission .  It is not as if the appellant had  

no intention to cause the death of the deceased or to cause  

such bodily injury with such a lack of intention.  In that  

context, as rightly pointed out by the learned counsel for the  

state, about twelve days prior to the occurrence, when the  

deceased was returning from his work and got down at the bus  

stop, the accused apprehended him and stated to have also  

assaulted him.  On that occasion, the deceased stated to have  

escaped and reported the said incident to PW-1.  PW-1, along  

with the deceased, stated to have reported the incident to the  

village Panchayat President who advised them to prefer a  

police complaint since the accused were not amenable to any  

Panchayat proceedings.  It is, however, stated that no police  

complaint was lodged with reference to the said incident.  PW-

1 reiterated the said fact in his oral evidence before the Court.  

In the cross examination he further stated that he did not  

report the said incident to the police as he felt that it can be  

sorted out at the level of Panchayat.  PW-5, who is a local  

prominent person, in his evidence also supported the above  

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version of PW-1.  PW-4 the mother of the deceased also  

supported the said version of PW-1 that the same was reported  

to the Panchayat’s President who advised them to lodge a  

complaint to the police.   

14. When the said piece of evidence is analysed along with  

the alleged occurrence that took place on 04.02.2000, it is  

crystal clear that the appellant had an axe to grind against the  

deceased which he got fulfilled by executing the same by  

inflicting a fatal injury, namely, injury No.4 on the deceased  

and that caused the death of the deceased.  When such is the  

clear evidence available on record, there is no scope to apply  

Section 304 part II, IPC or by way of mitigatory factor to dilute  

the rigour of the criminal act committed by the appellant.  We,  

therefore, do not find any scope to alter the sentence as  

pleaded on behalf of the appellant.  We find no merit in the  

appeal and the same is dismissed.

…..……….…………………………...J.

                 [Swatanter Kumar]

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  ……………. ………………………………J.

           [Fakkir Mohamed Ibrahim Kalifulla]

New Delhi; July 24, 2012

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