SHANMUGAM AND ANR.versusSTATE REP. BY INSPECTOR OF POLICE, T. NADU

                     [2013] 10 S.C.R. 99


                  SHANMUGAM AND ANR.                               A
                               v.
   STATE REP. BY INSPECTOR OF POLICE, T. NADU
          (Criminal Appeal No.1623 of 2009)
                   SEPTEMBER 11, 2013
                                                                   B
       [T.S. THAKUR AND VIKRAMAJIT SEN, JJ.]

     FIR - Delay in lodging - Effect - Held: Delay in lodging
of FIR is not by itself fatal to the case of the prosecution nor
can delay itself create any suspicion about the truthfulness       C
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 for the delay it loses its significance - Whether
or not the explanation is acceptable will depend upon the facts    D
of each case - On facts, no reason to disbelieve the
prosecution case only because the FIR was delayed by a few
hours especially when the delay was satisfactorily explained.

     Evidence - Witness - Related witness - Appreciation of        E
- To be undertaken in the facts of each case having regard
to ordinary human conduct prejudices and predilections - On
facts, the deposition of PW-1 found reliable by the Trial Court
as a/so the High Court, no matter he was related closely to
the deceased - Version given by PW1 corroborated by
medical evidence - Prosecution case as to the m.anner in           F
which assaults started and the place of occurrence proved by
the deposition of PW-1.

     Penal Code, 1860 - s.302 I 304 Part fl - Assault with
sticks and stones leading to death of a person - Conviction        G
of accused-appellants uls. 302 - Plea for altering the
conviction from s.302 to s.304 Part If - Held: Not tenable -
The manner in which the deceased was assaulted and the
brutRfity of the assault shows that the accused formed an
                              99                                   H
    100    SUPREME COURT REPORTS             [2013] 10 S.C.R.


A unlawful assembly with the object of killing the deceased -
  The blow landed on the deceased had brought him to the
  ground whereupon the accused continued brutalising th'e
  deceased with the help of stones, in the process crushing his
  head and squeezing his testicles - Nature of injuries caused
B to the deceased clearly indicative of the accused having had
  the intention of killing him.

         The prosecution case was that the accused-
    appellants and three other accused persons caught hold
    of the brother of PW1 and assaulted him with stick and
  C stones and also squeezed his testicles which led to his
    death on the spot. The Trial Court convicted the accused
    persons under Section 302 read with Section 34 IPC and
    sentenced them to undergo imprisonment for life. The
    conviction and sentenced was upheld by the High Court .
. D The Trial Court as also the High Court both placed
    reliance upon the deposition of PW-1 who was an eye
    witness to the occurrence. The Courts below also noted
    that while PW-4 and PW-5 turned hostile, they had
    nevertheless supported the prosecution case in the past.
  E The Courts also found that enmity between the deceased
    and the accused persons was the motive for the
    commission of the crime which motive was satisfactorily
    established on the evidence adduced at the trial.

F      In the instant appeal, a three-fold submission was
  made on behalf of the appellants. Firstly, it was
  contended that there was un-explained delay not only in
  the lodging of the FIR but also in dispatching a copy of
  the same to the jurisdictional Magistrate. Secondly, it was
G contended that the prosecution case rests entirely on the
  deposition of PW-1 who was closely related to the
  deceased and the evidence of PW-1 did not inspire
  confidence. 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.
H
     SHANMUGAM AND ANR. v. STATE REP. BY                101
        INSPECTOR OF POLICE, T. NADU
     Dismissing the appeal, the Court                         A
       HELD:1.1. 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
                                                               8
  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 explanation is or is C
. not acceptable. [Para 7] (108-H; 109-A-B]

      1.2. There is, in the instant case, delay of hardly a few
 hours which the prosecution has explained to the
 satisfaction of the Trial Court and the High Court both. o
 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 fo the
 witness, he travelled to Harur to inform his brother- PW-
 2 who accompanied him to the place of occurrence in a E
 car and ~hen to the police station where PW-1 lodged the
 first information report. Some 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. F
 No deficiency in terms of the omission of the names or
 the role played by the accused was pointed out. The
 version given by PW-1 has remained consistent with the
 version given in the first information report. There is, in
 that view, no reason to disbelieve the prosecution case G
 only because the first information report was delayed by
 a few hours especially when the delay has been
 satisfactorily explained. [Para 8] (109-H; 110-A-E]

      Meharaj Singh v. State of U.P (1994) 5 SCC 188; Thulia
 Kali v. State of Tamil Nadu (1972) CrLLJ 1296; State of H
    102     SUPREME COURT REPORTS            [2013] 10 S.C.R.


A   Himachal Pradesh v. Gian Chand (2001) 6 SCC 71; 2001
    (3) SCR 247; Ramdas and Ors. v. State of Maharashtra
    (2007) 2 SCC 170; Ki/akkatha Parambath Sasi and Ors. v.
    State of Kera/a AIR 2011 SC 1064: 2011 (2) SCR 540;
    Harivandan Babubhai Patel v. State of Gujarat (2013) 7 SCC
B   45 - relied on.

       2.1. The essence of any appreciation of evidence is
  to 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
C 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
D 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
E 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
F 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. [Para 1O] [111-E-H; 112-A-B]

      2.2. In the case at hand, the deposition of PW-1 has
G 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
H
    SHANMUGAM AND ANR. v. STATE REP. BY                103
       INSPECTOR OF POLICE, T. NADU
suggest that apart from his being a relative of the           A
deceased he had 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. [Para 15] [114-    B
E-G]

     2.3. The other two witnesses namely PW-4 and 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 occurrence took place is           C
proved from their depositions as well. Moreover, 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        D
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       E
assaults started and the place of occurrence was proved
by the deposition of PW-1. [Para 16] [115-0-F]

     Raju @ Ba/achandran and Ors. v. State of Tamil Nadu
AIR 2013 SC 983: 2012 (11) SCR 109; Dalip Singh v. State      F
of Punjab (1954) 1 SCR 145; Masalti v. State of U.P. (1964)
8 SCR 133; Darya Singh v. State of Punjab (1964) 3 SCR
397; Takdir Samsuddin Sheikh v. State of Gujarat and Anr.
(2011) 10 SCC 158; Amit v. State of Uttar Pradesh (2012) 4
SCC 107: 2012 (1) SCR 1009; Bur Singh and Anr. v. State       G
of Punjab AIR 2009 SC 157: 2008 (14) SCR 334 and State
of H.P. v. Kishanpa/ and Ors. 2008 (11) SCALE 23~ -
referred to.

    Mahtab Singh & Anr. v. State of U.P. (2009) 13 sec 670:
2009 (5) SCR 848 - cited.                                     H
    104      SUPREME COURT REPORTS            [2013) 10 S.C.R.


A      3. There is no merit in 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. The manner in which the deceased
B was assaulted and the brutality of the assault shows that
  the accused formed an unlawful assembly with the object
  of killing the deceased. The blow landed on the deceased
  had brought him to the ground whereupon the accused
  continued brutalising the deceased with the help of
C stones, in the process crushing his head and squeezing
  his testicles. 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. There is, therefore, no
0 room for altering the conviction from Section 302 to
  Section 304 Part II, IPC. [Paras 17, 18) [115-G-H; 116-A-D]

       Camilo Vaz v. State of Goa (2000) 9 SCC 1: 2000 (2)
    SCR 1088 -cited.
E
                         Case Law Reference:
          2009 (5) SCR 848      cited               ,Rar.a 5
          2000 (2) SCR 1088     cited                Para 6
F         (1994) 5 sec 188      relied on            Para 7
          (1972) Crl.LJ 1296    relied on            Para 7
          2001 (3)' SCR 247     relied on            Para 7

G         c2001) 2 sec 110      relied on            Para 7
          2011 (2) SCR 540      relied on            Para 7
          (2013) 1 sec 45       relied on            Para 7

          2012 (11) SCR 109     referred to          Para 9
H
    SHANMUGAM AND ANR. v. STATE REP. BY                  105
       INSPECTOR OF POLICE, T. NADU
    (1954) 1 SCR 145         referred to           Para 11      A

    (1964) 8 SCR 133         referred to           Para 12

    (1964) 3 SCR 397         referred to           Para 13
    (2011) 10 sec 158        referred to           Para 13      B
    2012 (1) SCR 1009        referred to           Para 14

    2008 (14) SCR 334        referred to           Para 14

    2008 (11) SCALE 233      referred to           Para 14
                                                                c
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1623 of 2009.

    From the Judgment & Order dated 24.08.2006 of the High
Court of Judicature of Madras at Madras in Criminal Appeal
No. 857 of 2004.                                                0

    Srilok N. Rath, Dr. Sushi! Balwada for the Appellants:

    M. Yogesh Kanna, A. Shantha Kumar, Sasi Kala,
Soopadh Tyagi for the Respondent.                               E

    The Judgment of the Court was delivered by

     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     F
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    G
Asokan was one amongst 200 other mourners who had
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
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   106      SUPREME COURT REPORTS              [2013] 10 S.C.R.


A 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
B 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
c 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 the
D 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
E 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
F 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
G 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-
H 1). The police swung into action, conducted an inquest and
    SHANMUGAM AND ANR. v. STATE REP. BY       107
INSPECTOR OF POUGE, T. NADU [T.S. THAKUR, J.]
seized the stick and stones used by the accused persons for          A
the assault and the blood stained clothes of the deceas~d. 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         B
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             C
them to undergo imprisonJnent 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          D
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 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       E
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
                                                                     F
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      G
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.
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    108     SUPREME COURT REPORTS                [2013] 10 S.C.R.


A       5. Appearing for the appellants Mr. Srilok N. Rath made a
  three-fold submission before us. Firstly, it was contended 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
8 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
C decision of this Court in Mahtab Singh & Anr. v. State of U.P.
  (2009) 13 sec 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 (PVV-1) did not,
D 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
E case was accepted in toto the offence could not go beyond
  Section 304 Part II of the IPC. Reliance was in support 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
F 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
G 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 ·
H
    SHANMUGAM AND ANR. v. STATE REP. BY        109
INSPECTOR OF POLICE, T. NADU [T.S. THAKUR, J.]
informant just as a prompt lodging of the report may be no            A
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 explanation is or is        B
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          c
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       D
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           E
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 legion and the principles of law
much too well settled to require any elaboration or re-statement.     F
Reference can all the same be made to Meharaj Singh v. State
of U.P (1994) 5 SCC 188, Thu/ia Kali v. State of Tamil Nadu
(1972) Crl.LJ 1296, State of Himacha/ 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.               G
State of Kera/a 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         H
    110       SUPREME COURT REPORTS                  [2013] 10 S.C.R.
                                                ~

A 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)
B 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 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
c 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
0
  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,
E 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
F of his close relation with the victim. The difference between a
  partisan witness on one hand and an interested witness who
  is unrelated to the vic~m but has some beneficial interest in the
  outcome of a litigatiOn on the other, remains obscure. Thi~
  Court in Raju @ Bt!Jlachandran and Ors. v. State of Tamil
G Nadu AIR 2013 SC 983, very recently attempted a ·possible
  categorization of witnesses and identified brqadly 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
H         unrelated witness_ (such as a bystander or passer-by); a
     SHANMUGAM AND ANR. v. STATE REP. BY       111
 INSPECTOR OF POLICE, T. NADU [TS. THAKUR, J.]
      third party interested witness (such as a trap witness); a 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 8
      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 C
      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."
                                                                     D
                                            (emphasis supplied)

        10. As bserved 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 E
  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 F
  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
Ia   fch.iridati\9n.for the argument that his false implication springs
  from such enmity:-- T.he mere fact that the witness was related G
  to the accused does ~ot 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
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    112       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A   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.

B         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:
c         "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
D         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 enmitv. that there is a
          tendency to drag in an innocent person against whom a
          witness has a grudge along with the guiltv, but foundation
E         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
F         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)
G
         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
H         evidence given by witnesses should be discarded only
    SHANMUGAM AND ANR. v. STATE REP. BY        113
INSPECTOR OF POLICE, T. NADU [T.S. THAKUR, J.]

    on the groood that it is evidence of partisan or interested    A
    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           B
    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        C
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                D
    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: Karlik Malhar v. State of Bihar (1996) 1        E
    SCC 614; and Rakesh and Anr. v. State of Madhya
    Pradesh JT 2011 (10) SC 525).

    (iiJ This Court has consistently held that as a general rule
    the Court can and may act on the testimony of a single F
    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 G
    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
    trustworthy or otherwise. The legal system has laid
    emphasis on value, weight and quality of evidence rather H
        114       SUPREME COURT REPORTS                 [2013] 10 S.C.R.


    A         than on quantity, multiplicity or plurality of witnesses. It
              is, therefore, open to a competent court to fully and
              completely rely on a solitary witmyss and record
              conviction. Conversely, it may acquit the accused in spite
              of testimony of several witnesses if it is not satisfied about
    B         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 Monda/ v. State of West Bengal AIR 2010 SC
    c         3638)."

                                                     (emphasis supplied)

            14. To the same effect are the decisions of this Court in
        Amit v. State of Utter Pradesh (2012) 4 SCC 107, Bur Singh
    D   and Anr. v. State of Punjab AIR 2009 SC 157, and Sate of
        H.P. v. Kishanpa/ 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.
    E 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 any other reason to
      falsely implicate the accused persons or any one of them. The
    F 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
    G 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
    H         broken into pieces. Neck - A skin colour contusion over



•
    SHANMUGAM AND ANR. v. STATE REP. BY        115
INSPECTOR OF POLICE, T. NADU [T.S. THAKUR, J.]
    the neck present. Limbs - contusion over right shoulder.        A
    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.
                                                                    8
    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 -             C
    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         D
deceased was present at the cremation ground where the
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         E
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.        F
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    G
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                  H
    116      SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A assaulted and the brutality of the assault 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 prutalising the deceased with the help of
B 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
C 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.

D         19. In the result this appeal fails and is hereby dismissed.

    B.B.B.                                       Appeal dismissed.