Appeal
Appeal against confirming the conviction under section 302 IPC while acquitted him under section 148 IPC
1. This appeal has been preferred by assailing the judgment passed by the Madras High Court, partly allowing the appeal of the appellant acquitting him of the offence under Section 148 of the Indian Penal Code (IPC) while sustaining the conviction and sentence of life imprisonment and fine of Rs.10,000/-, in default, to undergo rigorous imprisonment for two years, imposed by the Trial Court under Section 302 IPC.
Facts
Deceased informed the I.O about illegal carrying of sand by all accused and vanished when the police came to the soc
2. Briefly, the facts are that on 06.05.2018 at about 10:15 p.m., the deceased (Jagadeesh Durai) – a Special Branch Grade-I Constable found the appellant – Murugan (A1) and two others [Krishnan (A2) and Murugaperumal (A3)], carrying illegal sand in a tractor-trailer and with an intention to stop them from doing so chased them on a Motorcycle. He informed Inspector Virgin Sophia – PW24 over a cell phone regarding the transportation of the stolen river sand, detailing therein the names of the accused as also the registration number of the tractor. PW24 contacted Dhiraviam, Constable Grade II – PW21 and another constable – Muthaiah, instructing them to follow the sand smugglers. PW21 along with Muthaiah went on the motorcycle from Kakan Nagar to Pondicherry Road, to the site which was brought to their notice by the deceased constable (Jagadeesh Durai). However, they could not find him and tried to contact him over his cell phone, which initially was ringing for some time but thereafter was switched off. All this happened during the course of night. They also visited the residence of the accused A1 to A3, but they were not found there.
Deceased’s dead body was found the next day
3. The next morning at 5:30 a.m., PW1 found the dead body of the deceased with injuries on the head, in the land owned by Duraipandian (Retired Village Administrative Officer) – PW7. Three pairs of slippers and other articles were also found near the dead body along with the tractor and the trailer with one tyre out of the axle. Complaint was lodged (Exhibit P-1) and the articles found there were seized and marked.
Trial court convicted the appellant
4. On the basis of the statements recorded of the witnesses, the postmortem report and other evidence apart from the confessional statements of A2 and A3 before Maha Harichandran – PW13, A4 to A6 were also arrayed as accused. Upon completion of the investigation, the chargesheet was filed on 30.07.2018, leading to the framing of charges and subsequent trial, where A1 and A2 were convicted under Sections 148 and 302 of the IPC. They were sentenced to undergo rigorous imprisonment of three years under Section 148 and life imprisonment with Rs.10,000/- each as fine and, in default, to undergo imprisonment for two years under Section 302. Whereas A4 to A6 were convicted and sentenced to undergo two years rigorous imprisonment under Section 147 IPC and life imprisonment with fine of Rs.1,000/- each, in default whereof to undergo imprisonment for one year under Section 302 read with Section 149 IPC. The Trial Court acquitted A3.
A4 to A6 were acquitted and A1 and A2 were convicted
5. In appeal preferred before the High Court, A4 to A6 were acquitted. However, the conviction and sentence of A1 and A2 under Section 302 IPC were sustained while acquitting them of the charge under Section 148 of IPC. Appeal has been preferred by A1 only.
Analysis
Delay in sending FIR to the Magistrate was not proved through probable evidence
18. The aspect with regard to the presentation of the FIR before the Magistrate at a belated stage also carries weight. As per the evidence, the body of the deceased was found at 5:30 a.m. on 07.05.2018 and the FIR is alleged to have been registered soon thereafter. The report and the FIR were presented to the Magistrate at 3:30 p.m. Explanation which has been put forth is that the delay occurred because of the transfer of the Magistrate as per the constable PW20, who had brought the FIR to the Court. No evidence has been produced with regard to the transfer of the Magistrate nor has the Head Clerk – PW15, in the Magistrate’s Court stated anything about the Magistrate’s transfer. The justification, therefore, does not appear to be reasonable for the delay in presentation of the FIR before the Magistrate. Another aspect which has come to light is that, the inquest report was prepared after 1:00 p.m. as Tr. Arokiya Sesuraja – PW2 has stated that he had signed the same at that time. It thus appears that the prosecution has failed to explain the inordinate delay in the presentation of the report to the Magistrate casting doubt on the prosecution case.
Hon’ble High Court disbelieved the presence of eye-witness at the SOC
19. That apart, prosecution has rested its case, in its entirety, upon the evidence of PW-2, who is alleged to be the eye witness. He claims to have seen the commission of the offence, but his entire evidence has been disbelieved by the High Court on the ground that the presence of the said witness at the spot is wholly impractical, the conduct inconsistent and against the normal human behaviour. According to this witness, he had gone to the field at 10:00 p.m. to assess the value of maize crop grown therein and during that period he witnessed the occurrence leading to the death of the police constable – Jagadeesh Durai. He failed to inform the incident to the Police immediately, rather the said information was given by him after 36 days i.e., on 12.06.2018, especially when he had participated in the agitation on 07.05.2018, the very next day and even signed the inquest report at 1:00 p.m.
Last seen witness has given s. 161 Cr.P.C statement after 17 days and hence not trustworthy
20. With the evidence of eye witness having been discarded, the last seen witness is PW-12 who stated in his evidence that while he was coming at about 11:00 p.m., a tractor-trailer driven by A1 had crossed him with two other persons with him, one sitting on the tractor-trailer and the other in the trailer. The deceased was following the tractor, shouting at the accused to stop the same. He even saw the tractor-trailer taking a diversion and going into the maize field. This witness also admits to having been present at the time of the postmortem being conducted on the deceased on 07.05.2018. He has admitted that he had known the deceased earlier and was a resident of an adjacent village situated at a distance of 3 kms. Despite knowing the deceased, witnessing the incident and accompanying the dead body for the postmortem, he still chose not to inform the Police about the same.
20.1 What has come to light in his evidence is that he had given his statement to the Police under Section 161 on 23.05.2018, after 17 days of the incident. This, again casts doubt upon the veracity of the evidence of the witness. A person who recognizes not only the appellant but also the deceased and is also present at the time of postmortem would not have, in natural course, hesitated to approach the Police officials to give information with regard to the involvement of the accused in the alleged offence. The evidence, thus of PW-12 does not command any credence which could be made the sole basis for holding the appellant guilty of an offence under Section 302. The last seen evidence, therefore, also having been found to be not trustworthy.
Mere suspicion alone even very strong cannot substitute for a proof
21. In Karakkattu Muhammed Basheer vs. State of Kerala, this Court after referring to various judgments passed by this Court summarized the basic established principles which need to be taken as a guide for the Courts in cases of circumstantial evidence. In Paras 16 to 18 thereof, it was held as follows:-
“16. Thus, these basic established principles can be summarized in the following terms that the chain of events needs to be so established that the court has no option but to come to one and only one conclusion i.e. the guilt of the accused person. If an iota of doubt creeps in at any stage in the sequence of events, the benefit thereof should flow to the accused. Mere suspicion alone, irrespective of the fact that it is very strong, cannot be a substitute for a proof. The chain of circumstances must be so complete that they lead to only one conclusion that is the guilt of the accused.
17. Even in the case of a conviction where in an appeal the chain of evidence is found to be not complete or the courts could reach to any another hypothesis other than the guilt of the accused, the accused person must be given the benefit of doubt which obviously would lead to his acquittal. Meaning thereby, when there is a missing link, a finding of guilt cannot be recorded.
18. In other words, the onus on the prosecution is to produce such evidence which conclusively establishes the truth and the only truth with regard to guilt of an accused for the charges framed against him or her, and such evidence should establish a chain of events so complete as to not leave any reasonable ground for the conclusion consistent with the innocence of accused.”
Circumstantial evidence should leads to only one conclusion i.e the accused alone have committed the offence
22. In the case of circumstantial evidence, which ultimately turns out is that, with other evidence having been discarded, the sequence of events must be of such a nature which leads to only one conclusion that it is the accused and the accused alone who would be the person to have committed the offence, thus, leaving no scope for coming to any other conclusion.
Mere recovery of wheel spanner at the SOC with the accused finger prints on it would not be enough to hold the accused guilty
23. In these circumstances, merely the recovery at the site of the incident of a wheel spanner, which according to the prosecution has fingerprints of the accused on it and three pairs of slippers would not be enough for holding the appellant guilty of having caused the death of the deceased.
24. In the light of the above, the judgment and order of conviction and sentence as passed by the Courts below are set aside. The appeal is accordingly allowed.
25. The appellant be released forthwith, if in custody and not required in any other case.
Judgment cited
1. Karakkattu Muhammed Basheer vs. State of Kerala – 2024 (10) SCC 813 –
Acts and Sections involved
1. Indian Penal Code (IPC)
– Section 302: Punishment for murder.
– Section 148: Rioting, armed with deadly weapon.
– Section 147: Punishment for rioting.
– Section 149: Every member of unlawful assembly guilty of offense committed in prosecution of common object .
Party
Murugan vs. The State – Criminal Appeal No. 3318 of 2023 – 2025 INSC 446 – April 04, 2025 Justice Abhay S. Oka Justice Ahsanuddin Amanullah Justice Augustine George Masih [3 judge bench].
