ARUMUGAMversusSTATE REP. BY INSP. OF POLICE

                       [2012] 6 S.C.R. 1026


A                          ARUMUGAM
                                 v.
                STATE REP. BY INSP. OF POLICE
                (Criminal Appeal No. 879 of 2010)
                          JULY 24, 2012
B
       [SWATANTER KUMAR AND FAKKIR MOHAMED
               IBRAHIM KALIFULLA, JJ.]

       Penal Code, 1860 - ss. 14 7, 148, 341 and 302 -
C Prosecution under - Of six accused - Three eye-witnesses -
  Two of them turning hostile - Conviction of two of the accused
  - High Court acquitting one of the convicted accused while
  confirming conviction of appellant-accused - On appeal, held:
  Conviction justified - Evidence of sole eye-witness was
D reliable - Delay in registering the FIR ·did not cause any
  serious dent in the prosecution case - The case of the
  prosecution that fatal injuries were caused by appel/ant-
  accused was supported by medical evidence and the ocular
  evidence of the eye-witness - The appellant-accused cannot
E be treated at par with the other accused - In view of the fact
  that deceased was assaulted by the accused even prior to the
  incident s. 304 (Part-I/) is not applicable - There is no scope
  to alter the sentence.

      The appellant-accused was prosecuted with five
F other accused for having caused death of one person.
  The prosecution case was that the accused persons
  assaulted the victim with the weapons called 'aruval'.
  PWs 1 to 3 were the eye-witnesses to the incident. PW-1
  took the victim to the hospital. The victim informed the
G doctor (PW 8) who had examined him that he was
  assaulted by six known persons. The victim died in the
  hospital. Case was registered u/ss. 147, 148, 341 and 302
  IPC. Prosecution case was also that the accused had
  assaulted the deceased twelve days prior to the incident
H                           1026
 ARUMUGAM v. STATE REP. BY INSP. OF POLICE 1027


when the deceased had escaped. During trial, the eye-         A
witnesses PWs 2 and 3 turned hostile. Trial court
convicted appellant-accused and accused No. 6 and
acquitted rest of the accused. High Court confirmed the
conviction of the appellant-accused, while setting aside
the conviction of accused No. 6.                              B

     In appeal to this court, appellant-accused contended
that his conviction was not justified on the grounds there
was delay is preferring the complaint and registration of
FIR; that the injury Nos. 4 and 5 which were fatal for the    C
deceased, according to the doctor (PW 11), who had
conducted post mortem, were not attributed to appellant-
accused; that appellant was required to be treated at par
with the acquitted accused; and that even if the
prosecution case is accepted, the case would fall u/s. 304
(Part II) IPC.                                                D

    Dismissing the appeal, the Court

    HELD: 1. The appeal does not merit any
consideration. It is true that the whole case depends on      E
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 this Court that since
he is the brother of the deceased, his version is liable to
be thrown out. [Para 7] [1033-F]
                                                              F
    Jaisy @ Jayaseelan v. State Rep. by Inspector of Police
2012 (1) SCC 529; "Sucha Singh and Anr. v. State of Punjab
2003 (7) SCC 643: 2003 (2) Suppl. SCR 35 - relied on.

    2. Delay in registering the FIR does not cause any · G
serious dent in the case of the prosecution. The trial
Court dealt with this aspect in a detailed manner. 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 H
    1028    SUPREME COURT REPORTS              [2012] 6 S.C.R.


A treatment given to the deceased, he died in the hospital
  around 2 O'Clock. The only other person who was
  available with him was his mother (PW-4). Having regard
  to the unfortunate occurrence to his deceased brother,
  he would have only concentrated in staying at the
B hospital to support his mother and for taking required
  other steps to deal with the dead body of the deceased.
  Noting the sequence of events, from the time of the
  occurrence till the registration of the FIR, there is no
  substance in the plea of the appellant that there was delay
c in the registration of the FIR. [Para 8] [1034-F-H; 1035-B-
    D]
         3. It is not borne out by records that there was no
    evidence to connect the appellant to any of the injuries
    sustained by the deceased. The No. 1 injury as described
D   by PW-8 the doctor who attended on the deceased
    immediately after his admission to the hospital, was
    mentioned as an incised wound measuring 10 x 5 cm x
    bone deep over dorsal aspect of left elbow exposing
    elbow joint". The post mortem doctor PW-11 in his
E   evidence while describing the said 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. PW-11, the ppst mortem
    doctor in his opinion made it clear that the death of the
F   deceased was caused by injury Nos.4 and 5. As far as
    the said injury was concerned, it was reported by PW-1
    that while A-2 held the deceased, A-1 caused a cut injury
    on the left elbow of the deceased. Before the Court also,
    PW-1 reiterated the said version as against the appellant.
G   Therefore, the appellant cannot say 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.
    [Paras 9, 11 and 12] [1035-E-G; 1036-C-F]
      4. In the circumstances of the case, there is no scope
H to compare the extent of involvement of the appellant in
 ARUMUGAM v. STATE REP. BY INSP. OF POLICE 1029


the crime vis-a-vis the other accused to countenance the          A
submission of the appellant to treat him on par with the
other accused persons who were acquitted. [Para 13]
[1037-B-C]
     5. It is not as if the appellant had no intention to
cause the death of the deceased or to cause such bodily           B
injury with such a lack of intention. About twelve days
prior to the occurrence, the accused had 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          C
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. PW-5, who is a local
prominent person, in his evidence also supported the              D
above version of PW-1. PW-4 the mother of the deceased
also supported the said version of PW-1. [Para 13] [1037-
D-H]
                     Case Law Reference:
                                                                  E
    2012 (1 > sec 529            Relied on           Para 7
    2003 (2) Suppl. SCR 35       Relied on           Para 7
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 879 of 2010.                                                  F
    From the Judgment & Order dated 12.12.2008 of the High
Court of Madras, Madurai Bench in Crl. A. No. 1089 of 2001.
    Nagendra Rai, M. Yogesh Kanna, V.N. Raghupathy for the
Appellant.                                                        G
    8. Balaji, R. Rakesh Sharma for the Respondent.
    The Judgment of the Court was delivered by
    FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. This
appeal, at the instance of accused No.1 is directed against the   H
    1030     SUPREME COURT REPORTS                  [2012] 6 S.C.R.


A 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
B charges.·

         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
C   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,
D   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
E   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
F   reported by the deceased to him (PW-1). PW-1 appeared to
    have consoled the deceased by stating that tt:iey can report the
    conduct of the 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
G   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
H   head, leg and the buttocks of the deceased. On sustaining the
  ARUMUGAM v. STATE REP. BY INSP. OF POLICE 1031
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

injuries, the deceased stated to have fallen down. He was           A
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            B
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           c
Penal Code (for short 'IPC'). Inspector Kailasanathan (PW-12)
stated to have 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          D
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            E
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               F
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.
                                                                    G
     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.0.6 was blood stained polyester lungi, M.0.-
7 was blood stained Kasi towel, M.0.8 was blood stained             H
      1032     SUPREME COURT REPORTS                  [2012] 6 S.C.R.


A     sand, M.0.-9 was unstained sand and M.0.-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
8
  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
C 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
D counsel for the appellant and Mr. B. Balaji, learned counsel for
  the 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.
E It was then contended that as per the evidence of post mortem
  doctor (PllV-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
F 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
G 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
~..                                               .
   ARUMUGAM v: STATE REP. BY INSP. OF POLICE 1033
     [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

 described in the post mortem certificate was so grave in nature A
 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. B
 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,                     c
 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 0
 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 E
 the appellant.

        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             F
  occurrence. It is also true that he is the brother of the deceased.
   I~ 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 @                   G
  Jayasee/an 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        H
    1034    SUPREME COURT REPORTS                 [2012] 6 S.C.R.


A   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.
B
        "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:

              "10 .... the evidence of an interested witness should
c       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
D       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 o'N{uth
        such evidence could be relied upon even withC)LJf
        corroboration."
E
                                                [emphasis added]

         This submission of the learned counsel is, therefore,
    rejected."

F      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
G 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
H brother had to stay along with him in the hospital and as was
  ARUMUGAM v. STATE REP. BY INSP. OF POLICE 1035
    [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

expected, despite the treatment given to the deceased, he died       A
in the hospital around 2 O'Clock. The only other person 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               B
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          c
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
                                                                     0
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.
                                                                     E
       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                F
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         G
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:-
                                                                     H
    1036     SUPREME COURT REPORTS                  [2012] 6 S.C.R.


A             "(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
B       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."

        11. The post mortem doctor PW-11 in his evidence which
  is in vernacular (Tamil), while describing the injury, made it clear
C 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
D brother attended a telephonic call and was returning backl 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
E 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.
F
        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
  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
G 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
H
 ARUMUGAM v. STATE REP. BY INSP. OF POLICE 1037
   [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

out of context when there was direct evidence against the                  A
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.
                                                                           B
      13. In such circumstances, there is no scope to compare
the extent of involvement of the appellant in the crime vis-a-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. Witti this, when we              C
come to the last of the submissions made by the learned senior
counsel, namely, that at best the conviction can only fall under
Section 304 Part 11, 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   D
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                     E
 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              F
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·             G
person, in his evidence also supported the above 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.                                                             H
    1038     SUPREME COURT REPORTS                [2012) 6 S.C.R.


A        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
B 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 11, 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
c pleaded on behalf of the appellant. We find no merit in the
  appeal and the same is dismissed.

    K.K.T.                                     Appeal dismissed.