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SUPREME COURT OF INDIA
P. SATHASIVAM & J. CHELAMESWAR, JJ.
Nagappan - Appellant(s)
Versus
State by Inspector of Police, Tamil Nadu - Respondent(s)
CRIMINAL APPEAL NO. 1533 OF 2009
Decided On : JULY 17, 2013.
Indian Penal Code, 1860- Section 302 read with Section 34- The appellant (A-3) 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-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 hit on the neck or head of the deceased- Evidence of PW-1 and PW-3 are not sufficient to convict the appellant (A-3) under Section 302. (Para 8)
Facts of the case:
Four accused persons in order to kill 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 head and neck respectively. A-3 attacked the deceased with a stick whereas A-4 attacked him using iron pipe over the rear portion of his neck. Additional District and Sessions Judge convicted A-1 to A-4 for the offence punishable under Section 302 read with Section 34 of IPC. The Division Bench of the High Court dismissed their appeal. A-3 filed this appeal.
Findings of the Court :
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.
Result : Appeal allowed.
JUDGMENT
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.
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 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. 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:
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
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