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       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.

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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  

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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.  

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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:

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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  

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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  

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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].      

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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  

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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.”

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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-

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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  

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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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