NAGAPPANversusSTATE BY INSPECTOR OF POLICE, TAMIL NADU

                    [2013] 8 S.C.R. 99


                        NAGAPPAN                                 A
                             v.
    STATE BY INSPECTOR OF POLICE, TAMIL NADU
          (Criminal Appeal No. 1533 of 2009)
                       JULY 17, 2013
                                                                 B
     [P. SATHASIVAM AND J. CHELAMESWAR, JJ.]

     Penal Code, 1860 - s.302 rlw s.34 - Murder- On account
of previous enmity - Four accused - Eye-witness account of
PWs 1 and 3 - As per prosecution case, A-1 and A-2 were C
armed with knives, A-4 was armed with iron rod whereas A-3
was holding a stick- Doctor (PW-10), who conducted the post
mortem, asserted that the deceased died due to head injuries
- Trial court convicted A-1 to A-4 uls. 302 r/w s.34 /PC - High
Court confirmed the conviction - On appeal by A-3, held: PWs D
1 & 3 asserted that A-1 and A-2 caused cut injuries to the
deceased using knives - But PWs 1 & 3 did not specifically
state whether the stick used by the appellant (A-3) struck on
the head or neck of the deceased - They merely stated that
appellant used the stick and hit on the back - Absolutely, no E
reference of any injury on the back of the deceased was made
in the post mortem report as well as in the evidence of the
Doctor (PW-10) - Also, stick allegedly used by the appellant
was not shown to PW-10 - Conviction uls.302 r/w s.34 /PC
insofar as appellant is concerned, thus, liable to be set aside. F

     Evidence - Related/interested witness - Appreciation -
Held: There is no bar in considering the evidence of relatives
- 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          G
interested witnesses.

   The prosecution case was that A-1, A-2, A-3 and A-4
committed the murder of a person on account of enmity
                         99                                      H
    100      SUPREME COURT REPORTS            [2013] 8 S.C.R.


A between him and A-1. It was alleged that A-1 to A-4
  assembled near a road with an ulterior motive of killing
  the deceased; and on seeing the deceased, attacked him
  using knives, stick and iron pipe. A-1 and A-2 inflicted
  injuries on the deceased using knives from behind on the
B head and neck respectively while A-3 attacked the
  deceased with a stick whereas A-4 attacked him using
  iron pipe over the rear portion of his neck.

      The trial court convicted A-1 to A-4 under Section 302
  read with Section 34 of IPC and sentenced them to
C undergo imprisonment for life. The High Court confirming
  the conviction and sentence imposed by the trial Court.
  Against the said order, A-3 (the appellant) filed the instant
  appeal.

D      The appellant submitted that the conviction solely
  based on the evidence of PW-1 and PW-3, who are
  brothers and interested/related eye-witnesses, cannot be
  sustained in the absence of corroboration from other
  witnesses; that both the courts below failed to notice the
E fact that the medical evidence did not support the version
  of the prosecution in respect of the appellant (A-3) and
  in fact was contrary to the evidence of PW-1 and PW-3
  and, therefore, the conviction and sentence of the
  appellant was liable to be set aside.
F         Allowing the appeal, the Court

       HELD: 1.1. There is no bar in considering the
  evidence of relatives. The prosecution heavily relied on
  the evidence of PW-1, PW-3 and PW-10. The trial Court
G 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. Where the evidence of "interested
  -.vitnesses" is consistent and duly corroborated by
H medical evidence, it is not possible to discard the same
 NAGAPPAN v. STATE BY INSPECTOR OF POLICE, 101
                TAMIL NADU
merely on the ground that they were interested                 A
witnesses. In other words, relationship is not a factor to
affect credibility of a witness. [Para 7] [106-F-H;:107-A-B]
     1.2. On facts, as rightly observed by the Courts
below, the evidence of PW-1 and PW-3 is clear, cogent
                                                            8
and without much contradiction. In categorical terms,
PWs 1 & 3 asserted before the Court that A-1 and A-2
caused cut injuries to the deceased using knives (M.Os
9 & 10) and the appellant (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 C
to hospital. No doubt, they mentioned that the appellant
(A-3) attacked the deceased with a stick, however, 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) D
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 E
even a whisper that the stick used by the appellant (A-3)
hit on the neck or head of the deceased. The evidence
of PW-1 and PW-3 are not sufficient to convict the
appellant (A-3) under Section 302. [Para 8] [107-F-H; 108-
A-C]                                                        F
     Dalip Singh & Ors. vs. State of Punjab AIR 1953 SC 364:
1954 SCR 145; Guli Chand & Ors. vs. State of Rajasthan
(1974) 3 SCC 698; Vadive/u Thevar vs. The State of Madras
AIR 1957 SC 614: 1957 SCR 981; Masalti & Ors. vs. The G
State of U.P. AIR 1965 SC 202: 1964 SCR 133; The State
of Punjab vs. Jagir Singh & Ors. (1974) 3 SCC 277: 1974 (1)
SCR 328; AIR 1973 SC 2407; Lehna vs. State of Haryana
(2002) 3 SCC 76: 2002 (1) SCR 377; Sucha Singh & Anr.
vs. State of Punjab (2003) 7 SCC 643: 2003 (2) Suppl. SCR
35 = 2003(6) JT SC 348; lsrar vs. State of U.P. (2005) 9 SCC H
    102     SUPREME COURT REPORTS             [2013] 8 S.C.R.


A   616: 2004 (6) Suppl. SCR 695; S Sudershan Reddy & Ors.
    vs. State of A.P. (2006) 10 sec 163: 2006 (3) Suppl. SCR
    743; AIR 2006 SC 2716; 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: 2011
B   (6) SCR 1072; State of Haryana vs. Shakuntla and Others
    (2012) 5 sec 171: 2012 (5) SCR 276; Raju @
    Balachandran & Ors. vs. State of Tamil Nadu 2012 (11)
    SCALE 357 and Subal Ghorai & Ors. vs. State of West
    Bengal (2013) 4 sec 607 - relied on.
c      2. Doctor (PW-10), who conducted the post mortem
  on the dead body, 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. Exh. P-10 is the post mortem certificate issued by
D him. Admittedly, the stick alleged to have been used by
  the appellant (A-3) was not shown to the Doctor (PW-10).
  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
E 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
F 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, the conviction and the ultimate sentence in
  respect of the appellant (A-3) cannot be sustained. Both
G 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
H set aside. The conclusion of the High Court that the
 NAGAPPAN v. STATE BY INSPECTOR OF POLICE,               103
                TAMIL NADU
appellant along with others attacked the deceased with          A
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. [Paras 9, 10] [108-C, G-H; 109-A-B, D-H; 110-A-B]        B

                    Case Law Reference:
    1954 SCR 145                  relied on       Para 7
    (1974) 3 sec 698              relied on       Para 7
                                                                c
    1957 SCR 981                  relied on        Para 7
    1964 SCR 133                  relied on       Para 7
    1974 (1) SCR 328               relied on       Para 7
                                                                D
    2002 (1) SCR 377              relied on        Para 7
    2003 (2) Suppl. SCR 35         relied on       Para 7
    2004 (6) Suppl. SCR 695        relied on       Para 7
    2006 (3) Suppl. SCR 743       relied on        Para 7       E
    JT 2007 (9) SC 194             relied on       Para 7
    2011 (6) SCR 1072             relied on        Para 7
    2012 (5) SCR 276               relied on       Para 7       F
    2012 (11) SCALE 357            relied on       Para 7
    (2013) 4 sec 607               relied on       Para 7
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal           G
No. 1533 of 2009.

    From the Judgment and Order dated 12.04.2006 of the
High Court of Judicature at Madras in Crl. Appeal No. 1861 of
2002.
                                                                H
    104       SUPREME COURT REPORTS              [2013] 8 S.C.R.


A         K.K. Mani, Abhishek Krishna for the Appellant.

          M. Yogesh Kanna for the Respondent.

          The Judgment of the Court was delivered by

B        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
c   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

D       (a) The case relates to the death of a person by name
  Pasupathy, resident of Periya lrusampalayam 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
E 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.
F
       (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 lrusampalayam 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
G 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,
H stick and iron pipe. A-1 and A-2 inflicted injuries on the
 NAGAPPAN v. STATE BY INSPECTOR OF POLICE, 105
       TAMIL NADU [P. SATHASIVAM, J.]
deceased using knives from behind on the head and neck              A
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             B
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        C
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               D
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   E
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             F
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.                                                  G
    3. Heard Mr. K.K. Mani, learned counsel for the appellant-
accused and Mr. M. Yogesh Khanna, learned counsel for the
respondent-State.

     Contentions:                                                   H
    106      SUPREME COURT REPORTS                 [2013] 8 S.C.R.


A        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
s 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
c . 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
D 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.
E
       6. We have carefully considered the rival submissions and
  perused all the relevant materials.

    Discussion:

F      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
G 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
H their counsel. This Court, in series of decisions, has held that
 NAGAPPAN v. STATE BY INSPECTOR OF POLICE,                   107
       TAMIL NADU [P. SATHASIVAM, J.]
where the evidence of "interested witnesses" is consistent and A
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. B
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 C
& Anr. vs. State of Punjab, (2003) 7 SCC 643 = 2003(6) JT
SC 348, lsrar vs. State of UP., (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 D
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].
                                                                     E
      8. In the light of the above principles, let us consider the
acceptability or otherwise of the evidence of Siva raj (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        F
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              G
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             H
    108       SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A 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
B 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.

C        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:
D
          "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.
E
          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
F         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."

G 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.
H He further explained that out of 4 injuries on the head, two were        -
 NAGAPPAN v. STATE BY INSPECTOR OF POLICE,                       109
       TAMIL NADU [P. SATHASIVAM, J.]
on the rear left side, one injury was found on the rear of the head      A
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                   B
appelrant (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         c
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            D
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.              E
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                F
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               G
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                 H
    110       SUPREME COURT REPORTS                [2013] 8 S.C.R.


A 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
8
    34 IPC is set aside. The appeal is allowed. The appellant is
    directed to be released forthwith, if not required in any other
    case.

    B.B.B.                                         Appeal allowed.