REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1498  OF 2010

Murugan     ….Appellant(s)

VERSUS

State of Tamil Nadu    ….Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.

1. This appeal is filed by the accused against the

final judgment and order dated 25.04.2007 passed

by  the  High  Court  of  Judicature  at  Madras  in

Criminal Appeal No. 804 of 2006 whereby the High

Court  dismissed  the  appeal  filed  by  the

appellant(Accused)  and confirmed the  order  dated

02.08.2006  passed  by  the  Additional  Sessions

Judge,  Namakkal  (Fast  Track  Court)  in  Sessions

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Case No.5 of  2006 convicting the appellant under

Sections 364 and 302/34 of the Indian Penal Code,

1860  (hereinafter  referred  to  as  “IPC”)  and

sentenced  him to  undergo  rigorous  imprisonment

for 7 years under Section 364 IPC and to pay a fine

of  Rs.1000/-,  in  default  of  payment  of  fine,  to

undergo further simple imprisonment for one month

and imprisonment for life under Section 302/34 IPC

and to pay a fine of Rs.5000/- in default of payment

of fine, to undergo further simple imprisonment for

two  months.   The  sentences  would  run

concurrently.

2. In order to appreciate the issues arising in the

case, it is necessary to set out the prosecution case

in detail:

3. One person by name "Kumar" (since dead) was

the uncle of a girl "Geetha".  At the relevant time,

Geetha was in sixth standard. Kumar was married

but  living  separately  from  his  wife.  Kumar  and

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Geetha  were  living  in  the  one  locality  at  a  short

distance.  Kumar had developed liking for Geetha

and wanted to marry her.  

4.  Murugan (father of Geetha) was not agreeable

to  the  Kumar's  proposal  to  marry  Geetha.

Murugan(Geetha’s father)  used to say that Kumar

had already ruined the life of his wife and now he

wanted to ruin his daughter's life also. Kumar, on

the other hand, used to threaten Geetha that one

day he would kidnap her and marry her.  

5. It  is  the  case  of  prosecution,  that  on

01.12.2002 afternoon, Kumar went to the house of

Geetha and demanded "Chili"  to  cook mutton.  At

that  time,  Geetha was  alone  in  the  house.  When

Geetha  refused  him to  give  Chili,  Kumar  entered

into the house and took Chili of his own and left the

house  saying  that  one  day,  he  would  kidnap her

and rape her.

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6. On the same day at around 10 P.M.,  Kumar

along with Murugan(appellant),  who is  his  cousin

brother (his aunt's son) went to Geetha’s  house and

invited  Murugan(Geetha’s  father)  for  a  drink  and

non-veg.  dinner  at  his  house.  Murugan(Geetha’s

father) accepted the invitation and went along with

both of them to Kumar's house.

7.  When  Murugan(Geetha’s  father)  did  not

return home, Geetha (PW-1) alone went to Kumar's

house at around 11 P.M. to find out as to why her

father  has  not  returned  so  far  and  what  was  he

doing in Kumar's house for such a long time. On

reaching  there,  she,  however,  found  that  trio

(Kumar, Murugan and the appellant) were sitting in

the room on one iron cot and were dining together.

The  trio  told  Geetha  that  her  father  -  Murugan

would  be  coming  shortly.   Thereafter  Geetha

returned to her house.   

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8. Since Murugan did not return home till  next

day morning, Geetha (PW-1) and her mother Saroja

(PW-2) went early morning to Kumar's house to find

out  why Murugan has not  returned so far  to  his

house.  The front door of  the Kumar's house was

closed.  Both of  them,  therefore,  pushed the  front

door  and on opening,  they  found that  Murugan's

dead body was lying in the room near iron cot with

many injuries on his body.

9. It is this incident which gave rise to filing of

FIR dated 02.12.2002 (Ex-P-18) by Geetha (PW-1) in

PS Jedarpalayam,  which  was  registered  as  Crime

No. 224 of 2002 under Sections 302/364/34 of IPC.

The  police  then  started  investigation,  visited  the

house  of  Kumar,  prepared  Mahazar  (Ex.P-13),

drawn  rough  sketch  (Ex.P-19),  took  photographs,

prepared inquest report, recorded the statements of

witnesses, conducted post-mortem of the dead body

(Ex.P-4)  and recovered the articles (M.O. 5 and 12 ).

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10. The  police  then  on  03.12.2002  arrested

Kumar,  who  confessed  his  guilt.  His  confessional

statement  was  accordingly  recorded  (Ex.P-15).

Thereafter the  police recovered weapon used in the

crime (Aruval-MO-14) and the blood stained green

shirts at his instance from his father's house. It was

then followed by the appellant's arrest on the same

day.  

11.   The police, on completing the investigation,

filed  the  charge  sheet  against  Kumar  and  the

appellant  herein  for  commission  of  the  offences

punishable under Sections 364 and 302/34 of IPC.

The  case  was  then  committed  to  the  Additional

Sessions Judge, Namakkal for trial (Sessions Trial

No. 5/2006).  

12. Before the trial could begin, the main accused-

Kumar died. The trial against him, therefore, stood

abated whereas it continued against the co-accused

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–appellant herein. The appellant, however, abjured

the guilt.  

13. In order to prove the charges, the prosecution

examined  12  witnesses,  marked  20  exhibits  and

produced  15  material  objects.  In  the  proceedings

under Section 313 of the Criminal Procedure Code,

1973  (hereinafter  referred  to  as  “the  Code”),  the

appellant was asked to explain the circumstances

appearing against  him but he  denied the  charges

including  the  circumstances  without  offering  any

explanation.

14.  By  order  dated  02.08.2006,  the  Additional

Sessions Judge held the charges proved against the

appellant  and  accordingly  convicted  him  for

commission  of  the  offences  punishable  under

Sections 364 and 302 read with Section 34 of IPC

and awarded life imprisonment under Section 302

IPC and seven years under Section 364 and a fine

amount of Rs. 5,000/- and Rs.1000/- respectively.   

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15. The appellant felt aggrieved by his conviction

and  the  sentences  awarded  by  the  Additional

Sessions Judge and filed appeal in the High Court.  

16. By  impugned  judgment,  the  High  Court

dismissed the appeal and confirmed the judgment of

the Additional Sessions Judge, which has given rise

to filing of the appeal by way of special leave by the

accused –Murugan in this Court.

17. Heard  Ms.  Chitrangda  Rastravara,  learned

counsel for the appellant and Mr. M. Yogesh Kanna,

learned counsel for the respondent.  

18. Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

find no merit in the appeal.

19.  We have perused the evidence with a view to

find  out  whether  the  approach,  reasoning  and

conclusion arrived at by the two Courts below are

legally sustainable or not.

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20. It  is  a  settled  principle  of  law  that  when  the

Courts  below  have  recorded  concurrent  findings

against the accused person which are based on due

appreciation of evidence, this Court under Article 136

of the Constitution of India would be slow to interfere

in such concurrent findings and would not appreciate

the evidence  de novo unless it  is  prima facie shown

that both the Courts below did not either consider the

relevant piece of evidence or there exists any perversity

or/and absurdity in the findings recorded by both the

Courts below etc.  

21. We,  however,  made endeavour  to  peruse  the

evidence with a view to find out as to whether the

concurrent findings of both the Courts below have

any kind of infirmity or/and whether the concurrent

findings are capable of  being legally  and factually

sustainable  or  need  to  be  reversed.  Having  gone

through the evidence, we are of the view that the

findings are legally and factually sustainable in law.

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22. In  our  considered  opinion,  the  two  Courts

below  have  rightly  held  that  the  appellant's

conviction  was  based  on  circumstantial  evidence

which,  in  this  case,  the  prosecution  was  able  to

prove it by adducing evidence. In other words, we

also find that the prosecution was able to prove the

chain  of  circumstances/events  appearing  against

the appellant without any break therein and hence

the appellant’s conviction deserves to be upheld.

23.  On perusal of the evidence, we find that the

prosecution examined three witnesses (PW-1, PW-2

and PW-3) to prove material circumstances and the

chain  of  events  against  the  appellant  which  first

included the motive behind the commission of the

crime followed by the manner in which the incident

took place leading to the death of Murugan.  

24. The motive, according to the prosecution, was

that  Kumar  had  a  grudge  against  the  deceased

because  he  was  not  agreeable  to  the  Kumar's

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proposal  to  marry  his  daughter-Geetha.  This  was

proved with the evidence of PWs-1, 2 and 3. It was

believed  by  the  two  Courts  below  and,  in  our

opinion, rightly.  

25. The prosecution then proved that the appellant

along  with  Kumar  had  gone  to  the  house  of  the

deceased  for  inviting  him for   dinner  at  Kumar's

house  on the  same night.  The deceased accepted

the invitation and went to Kumar's house to have

dinner with Kumar and the appellant.  

26. It  was  then  proved  that  Geetha  (PW-1)  had

gone to Kumar's house at  around 11 P.M. to see

why her father did not return to his house and on

reaching there,  she found all  the three  sitting on

iron  cot  and  were  having   dinner.  As  per  post

mortem report,  it  was  proved  that  Murugan  died

between 11 P.M. and 12 P.M. the same night.  

27. In our opinion, when the appellant was sitting

in the company of the deceased (Murugan) till  11

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P.M. along with Kumar in his house and had dinner

with  Murugan  and  Kumar  and  immediately

thereafter  Murugan  died,  the  appellant  in

cross-examination of PWs-1,2 and 3 was not able to

elicit  anything  to  discredit  the  evidence  of  the

abovesaid  three  witnesses  and  to  disprove  the

circumstances deposed against him.

28. That apart, in our opinion, it was necessary for

the appellant to have explained the aforementioned

circumstances  appearing  against  him  in  the

proceedings  under  Section  313  of  the  Code.  The

appellant,  however,  failed  to  explain  any

circumstances  and  denied  his  involvement  in  the

crime.

29. We find from the evidence eight circumstances

appearing  against  the  appellant.   These

circumstances  are:  First  motive  was  against  the

deceased due to his not agreeing to the proposal of

marriage of Kumar with his daughter; Second, the

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appellant and Kumar, both being the cousins, knew

each other very well;  Third,  both went together to

the house of the deceased to invite him for a dinner

at Kumar’s house;  Fourth,  all the three had dinner

together  at  Kumar’s  house;  Fifth,  Murugan  died

immediately  after  dinner;  Sixth,   Kumar  gave  his

confessional  statement;  Seventh,   recovery  of

weapon and cloths at the instance of Kumar; and

Eighth, the dead body was found lying near iron cot

where  Murugan(deceased)  had  last  dinner  with

Kumar and the appellant.

30. In  our  view,  the  aforementioned  eight

circumstances  do  constitute  a  chain  of  events

against  the appellant  and lead to draw a  strong

conclusion  against  the  appellant  and  Kumar  for

having committed the murder of Murugan.  

31. In  our  view,  it  clearly  establishes  that  both

(Kumar and the appellant) had a common intention

to eliminate Murugan. In our view, there could be

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no  other  person  other  than  the  appellant  and

Kumar, who committed the crime in question.

32. A  theory  of  "accused  last  seen  in  the

company  of  the  deceased" is  a  strong

circumstance  against  the  accused  while

appreciating  the  circumstantial  evidence.  In  such

cases, unless the accused is able to explain properly

the material circumstances appearing against him,

he can be held guilty for commission of offence for

which he is charged. In this case, it was rightly held

by the two Courts below against the appellant and

we find no good ground to disturb this finding.

33. We are not impressed by the submission of the

learned counsel for the appellant when she argued

that  Kumar  (main  accused)  having  died  without

facing the trial, the present appellant is entitled for

a  clean  acquittal  because  nothing  now  survives

against  the  appellant  after  Kumar's  death  for

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appellant’s prosecution. We do not agree with this

submission.  

34. In  our  view,  death  of  Kumar  was  of  no

significance so far as the appellant’s prosecution is

concerned. The reason being that this was a case of

common intention  of  the  two  accused  persons  to

eliminate Murugan and the appellant was one of the

accused  persons,  who  was  found  actively

participating  in  the  crime  till  last  along  with  the

other accused, who died.

35. In our view, the two Courts below, therefore,

were  right  in  holding  the  appellant  guilty  of

commission of the offences in question by properly

appreciating the ocular evidence of the prosecution

witness  notwithstanding  the  death  of  the

co-accused, which was of no relevance for deciding

the involvement of the appellant in commission of

crime.

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36. We, therefore, find no good ground to take a

different view than what is taken by the two Courts

below  and  concur  with  their  reasoning  and

conclusion with our additional reasoning elaborated

above.

37. The appeal is thus found to be devoid of any

merit. It fails and is accordingly dismissed.

………...................................J. [R.K. AGRAWAL]

                                     …...……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; May 02, 2018  

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