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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1311 OF 2006

NAGARAJ APPELLANT

             VS.

STATE REP. BY INSPECTOR OF RESPONDENT  POLICE, SALEM TOWN, TAMIL NADU

J U D G M E N T

VIKRAMAJIT SEN, J.

1 This Appeal  by Special  Leave is directed against  the Judgment of  the  

High Court of Madras dated 5.10.2005 whereby the conviction of the Accused/  

Appellant Nagaraj under Section 302 IPC came to be affirmed.  The Accused  

was sentenced to Life Imprisonment and was further directed to pay a fine of  

Rs.1000/-, in default of which he would have to undergo rigorous imprisonment  

for three months.  

2 The sequence of events leading to the fateful incident, as presented by the  

prosecution is as follows. According to Mari Chetty PW3, the Accused and the  

Deceased came to his house in Bargur at 9.30 a.m. on 24.7.2000 to borrow  

money from him for the purposes of their textile business. This was the first

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time PW3 met the Accused; and the Deceased informed him that the Accused  

had joined him in business on the basis of commission.   He and the Accused  

also informed PW3 that they were going to Bangalore and then to Salem for  

their  business.   Thereafter,  according  to  Rajammal  PW4,  the  mother  of  the  

Deceased,  the Accused and Deceased left  Srinivasapuram for  Salem at  2.00  

p.m.; she has corroborated that the Accused was working in the textile business  

with the Deceased. The details of the travel plans given by her are contradictory,  

as in her cross-examination she mentioned that they were going to Bangalore  

before visiting Salem. She also stated that the Deceased informed her at the time  

of  leaving,  not  that  the  Accused  and  the  Deceased  visited  her  before  their  

departure.  On 25.7.2000, at 9.00 a.m, the Accused and the Deceased visited  

Veeravel’s shop in which Senthil PW2 was employed.  The Deceased was the  

uncle of PW2.  During a conversation with Veeravel, the Deceased told him that  

the Accused’s name was Nagaraj, that he was from Bargur and he had joined the  

Accused in business on commission basis.  At 9.30 a.m., the Accused and the  

Deceased arrived at Sampath Kumar Lodge. Kandasamy PW1, the room boy,  

has stated that the Accused entered the Lodge with another person and asked for  

a room. PW1 initially stated that they arrived with one textile bag/bundle, but in  

the cross-examination has said that the Accused and the Deceased had one bag  

each. Upon being allotted Room No.115, the Accused signed the Lodge/Hotel  

Register  and paid Rs.100/-  as  advance.   At  10.00 a.m,  the Accused and the  

Deceased briefly visited Veeravel’s shop again.   PW2 heard them say that they

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had booked Room No.115 at Sampath Kumar Lodge. According to PW1 they  

returned to the Hotel in about ten minutes and that at 11.00 a.m, he saw the  

Accused leaving the Hotel room. The Accused put two textile bags down and  

locked the door, and then told PW1 that he was going to sell the textile goods.  

He  did  not  return  the  room  key  and  he  also  did  not  return  at  night.   On  

27.7.2000, at about 1.00 p.m. PW1 noticed a bad odour coming from Room  

No.115. He searched for a key with which to open the door but could not find  

one. The Manager, when informed, said that there is nothing they could do as  

there was no key.  On 28.7.2000 at about 10.00 a.m, PW1 noticed that the odour  

had become worse. He informed the Manager, who this time around, gave him  

the master key.   He entered the room, where he found nothing but he found the  

body of the Deceased in the bathroom.  The body was decomposing, and there  

were injuries on the left portion of the head.  PW1 informed the Manager about  

this, who informed the Salem Town Police Station.  An FIR was lodged by the  

Manager at noon.  According to the FIR, on being informed of the situation by  

PW1, the Manager had gone to the room and had then also seen the body of the  

Deceased.  The FIR also stated that the Accused and the Deceased arrived at the  

Hotel with one textile bundle, and the Accused took one bundle with him when  

he left. The FIR specifically stated that there was no bag/bundle in the room  

when the Manager went in. The FIR also stated that at the time of signing the  

Register, the Deceased informed the Manager that they would be staying for one  

day only.  At 12.30 p.m, the police arrived at the Hotel and conducted a search

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of the room.   According to the cross-examination of PW1, a bag was found in  

the room and was recovered by the police, but this was not mentioned in the  

Observation  Mahazdar  or  in  the  examination  of  PW10  who  prepared  the  

Observation  Mahazdar.   At  1.15  p.m.,  PW10 conducted  his  enquiry,  during  

which he collected samples of blood-stained cement and cement mixture, and  

interrogated some witnesses.  However, significantly, the Lodge Register and  

the Receipt Book were not taken custody of.   

3 According to the Post Mortem report dated 29.7.2000, the Deceased had  

been dead for three to five days.  PW7, who conducted the Post Mortem, has  

deposed that the Deceased appeared to have died of head injuries. The following  

injuries were found:- (i) lacerated injury over left parietal region; (ii) lacerated  

injury over left temporal region; (iii) contusion over the occipital region;( iv)  

fissured fracture over left parietal bone extending on to the left temporal bone.  

4 It  is  only  eighteen  months  later,  on  29.11.2001,  that  the  Accused  

surrendered before the Judicial Magistrate.  It is not in dispute that in this long  

period the police had not taken any steps for his interrogation or his arrest.  The  

police seemed to have sprung into action only when the Accused surrendered on  

his own. On being permitted by the Court PW11 took the Accused into police  

custody on 11.12.2001 and brought him to the Police Station, where he was  

interrogated.  According to PW11 and PW6, the Accused allegedly voluntarily  

confessed  to  killing  the  Deceased  with  an  iron  rod,  which  he  allegedly

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subsequently threw into a waste-water channel. The Accused took PW11 and  

the witnesses to the place where he had allegedly thrown the rod, but it was not  

found. The Accused was then taken to Sampath Kumar Lodge and shown to  

PW1, who thereupon identified him.   The next day the Accused was remanded  

to judicial custody.  The Charge Sheet dated 28.11.2002 charged the Accused of  

the commission of the murder of the Deceased under Section 302 of the Indian  

Penal Code. The motive attributed for the murder was his previous enmity with  

the  Deceased  because  of  the  non-payment  of  pending  dues  but  there  is  no  

evidentiary foundation for arriving at this conclusion. The Accused pleaded not  

guilty.  

5 When  the  Accused  was  questioned  under  Section  313  CrPC,  he  

emphatically  denied  his  complicity  in  the  offence,  and  said  that  he  had  no  

connection with the Deceased and had never visited Sampath Kumar Lodge.  

According to his Section 313 statement and his written statement, he was in his  

home in Bargur, and the police started visiting his home and troubling him; he  

engaged  an  advocate  and  surrendered  before  the  Court;  he  was  taken  into  

custody by PW11, and was ‘coerced’ on 11.12.2011 and on 12.12.2011, was  

made to sign a paper; he has denied that he voluntarily confessed to the crime or  

that he accompanied the police to any place.  

6 It  is  worth  noting  a  number  of  inconsistencies  in  the  case  of  the  

prosecution. Neither the Register nor the Receipt Book was produced by the

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prosecution as evidence. This is a serious lapse, as these documents would have  

been the best evidence to indicate that the Accused and the Deceased were at  

Sampath Kumar Lodge together.  Further,  no explanation has been given for  

their non-production.  The High Court has held that the failure to produce these  

does not damage the case of the prosecution, as there is no reason to doubt the  

statement of PW1 according to which the Accused and the Deceased came to  

the Lodge and stayed in that particular room.  However, the failure to produce  

them has resulted in the prosecution relying on circumstantial evidence instead  

of direct evidence, thus weakening its case.  

7 The various witnesses have given contradictory statements regarding the  

number of bags with the Accused and the Deceased.   It is not clear whether  

they brought one textile bag with them to Sampath Kumar Lodge or two. While  

PW1, in his deposition, stated that the Accused left with two textile bags, the  

Manager,  in  the  FIR  has  only  mentioned  one.  Further,  PW1  in  his  cross-

examination stated that one bag was found in the room at the time the police  

came to investigate, but nothing further is mentioned of this.   We have already  

noted that PW1 has variously stated that the Accused had one bag, then two  

bags, and that he had left with one bag and then with two bags.  But if one  

bag/bundle was found in the room by the Police, then there would have been  

three bags/bundles.  There are inconsistencies in the cross-examination of PW1  

regarding his duty timings. Although he initially stated that the duty timings of

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the room boys changed on alternate days, he later claimed that he was only on  

duty in the daytime and the night duty was allotted to another room boy.  

8 No reason is given for the fact that Room No. 115 was not opened for  

three  days,  which  is  particularly  curious  given  the  Manager  in  his  

Complaint/FIR stated that the Deceased had said that they would be staying for  

one day and only a meagre deposit of Rs.100 had allegedly been received.  PW1  

saw the Accused and the Deceased leave and enter the Hotel multiple times on  

the morning of the 25.7.2000, but thought nothing of the fact that there was  

subsequently no movement from the room or the fact that the Accused had left  

with the key and had not come back. They did not ask PW1 for drinking water  

again.   Given that they had had to ask him for this on the first day, it would be  

the natural assumption that they would have to ask him to replenish it. Further,  

at the time of checking in, they had asked PW1 for a bedsheet who had said that  

it was being washed and that he would provide it in the evening. PW1 should  

have been suspicious that there were no demands for either of these, particularly  

if  he  assumed  that  the  Deceased  was  still  in  the  room.  There  is  also  no  

explanation for the fact that no attempt was made to open the room for three  

days for the purposes of cleaning it.  When PW1 first  noticed the odour, the  

Manager informed him that there was nothing they could do about it since the  

key was not available. However the events of the next day reveal that the door  

could have been opened with a master key.  The explanation of PW1 that he  

thought the smell was from a dead rat is not satisfactory. The natural reaction

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would have been to clean it, not to leave it to rot further. The Manager was not  

alive at the Trial and hence his Statement has not been subjected to the acid test  

of cross-examination; his Statement cannot be relied upon.   

9 The room was finally opened by PW1, and was possibly investigated by  

the Manager, though the accounts regarding this are contradictory, before the  

police were finally called. There was, therefore, plenty of time for the crime  

scene to have been tampered with before the police arrived.   There was also the  

possibility  of  other  parties,  including  PW1  and/or  the  Manager  to  have  

perpetrated  the  murder.    According  to  the  cross  examination  of  PW1,  the  

adjacent room to Room No. 115 was also occupied, but this fact was not taken  

into consideration in the police investigation, and the inhabitants of the adjacent  

room have not  been questioned,  even though their  evidence may have been  

compelling.  

10 No explanation  has  been given for  the fact  that  the Accused was not  

arrested after the investigation commenced, despite the fact that seemingly the  

prosecution perceived that the finger of suspicion pointed at him and him alone.  

Notices requiring him to participate in the investigation are conspicuous by their  

absence, and that too for a long duration of eighteen months.  In fact he was  

only taken into custody after he voluntarily surrendered. The High Court has

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held  that  he  was absconding,  but  this  is  not  borne  out  from the  records  as  

admittedly there was no warrant for his arrest on the record.  

11 No  suspicious  or  ulterior  slant  can  be  attributed  to  the  Accused  for  

surrendering  before  the  Judicial  Magistrate  after  one  and  a  half  years,  

particularly given that there were no outstanding warrants for his arrest or even  

for participating in the investigation. The statement of the Accused that he did  

so because he was being harassed by the police to turn himself in seems very  

credible to us.  In that case, there is no explanation as to why the Police did not   

arrest him even though they were frequenting his home, and the prosecution’s  

version is not dependent on his interrogation, save for the alleged confession.  

12 No identification parade has been conducted. This aspect has no doubt  

been discussed in the impugned judgment; but it was held that there was no  

suspicion  as  to  the  complicity  of  the  Accused,  who  was  allegedly  seen  by  

several witnesses without any suggestion to them during the course of the cross  

examination that the Accused was not present at all.  At least in the trial of  

capital offences, we think that a duty is cast on the Court to ensure that the  

Accused has adequate legal assistance.   It  is  evident that in this case this is  

strikingly absent.    Keeping in perspective that the identification was a year and  

a half after the witness allegedly last saw the Accused, an identification parade  

should have been properly conducted.  Moreover, identification by the Manager

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was not possible, as he had died before the Trial commenced.  The identification  

by PW3 and PW4 took place two and a half  years after  the incident,  again  

without  an  identification  parade,  and  eventually  in  the  course  of  Court  

proceedings.  Further,  PW3 has admitted that he only met the Accused once,  

which was on 24.7.2000. There is clearly a very severe lapse on the part of the  

prosecution with no plausible and acceptable explanation forthcoming.

 13 The  conviction  is  predicated  on  circumstantial  evidence  alone.  

Fingerprints have not been lifted from the scene, the murder weapon has not  

been recovered, and any credible motive is absent.  It cannot even be contended  

that the Accused was the last person to be seen with the Deceased since several  

persons including the Manager,  PW1, and the guests in the adjoining rooms  

could have accessed the room where the Deceased was eventually found.  While  

circumstantial evidence is sufficient to return a conviction, this is possible if it  

contains  all  the  links  that  connect  the  Accused  to  the  incident,  and  the  

inconsistencies are extremely trivial in character. Furthermore, motive assumes  

great  significance  where  a  conviction  is  sought  to  be  predicated  on  

circumstantial evidence alone, and its absence can tilt the scales in favour of the  

Accused where all links are not avowedly present.  We think that the High Court  

erred in concluding that the complicity of  the Accused in the murder of the  

Deceased had been proved beyond reasonable doubt.

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14 The Impugned Judgment has found the answers of the Accused under  

Section 313 CrPC evasive and untrustworthy, and held this to be another factor  

indicating his guilt.  Section 313 CrPC is of seminal importance in our criminal  

law  jurisdiction  and,  therefore,  justifies  reiteration  and  elucidation  by  this  

Court.  We shall start, with profit, by reproducing extracts from 41st Report of  

the Law Commission made in the context of Section 342 of the old Criminal  

Procedure  Code  which  corresponds  to  this  Section  where  the  Commission  

observed, inter alia, thus:

“24.40.  Section 342 is  one of  the most  important  sections in  the  

Code.  It requires that the Court must, at the close of prosecution  

evidence, examine the accused “for the purposes of enabling him to  

explain any circumstances appearing in the evidence against him.”  

The section for a moment, brushes aside all counsel, all prosecutors,  

all  witnesses,  and all  third persons.   It  seeks to establish a direct  

dialogue  between  the  Court  and  the  accused  for  the  purpose  of  

enabling the accused to give his explanation.  For a while the section  

was  misunderstood  and  regarded  as  authorizing  an  inquisitorial  

interrogation of the accused, which is not its object at all.  The key to  

the section  is  contained in  the first  sixteen words  of  the  section.  

Giving an opportunity to the accused to explain the circumstances  

appearing in the evidence is the only object of the examination.  He  

may,  if  he  chooses,  keep  his  mouth  shut  or  he  may  give  a  full

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explanation, or, he is so advised, he may explain only a part of the  

case against him.

*****

24.45 We have, after considering the various aspects of the matter as  

summarized above, come to the conclusion that S.342 should not be  

deleted.   In our opinion the stage has not  yet  come for  its  being  

removed from the statute book.  With further increase in literacy and  

with better facilities for legal aid, it may be possible to take that step  

in the future.”

(ii)  ‘Clause 320 – The existing provision in S.342 (2)  enabling a  

Court to draw an inference, whether adverse or not from an answer  

or  a  refusal  to  answer  a  question  put  to  the  accused  during  the  

examination,  is  being omitted  as  it  may offend Art.  20(3)  of  the  

Constitution” – S.O.R.”

15 In the context of this aspect of the law it is been held by this Court in  

Parsuram Pandey vs. State of Bihar (2004) 13 SCC 189 that Section 313 CrPC  

is  imperative  to  enable  an  accused  to  explain  away  any  incriminating  

circumstances proved by the prosecution. It is intended to benefit the accused,  

its  corollary  being  to  benefit  the  Court  in  reaching  its  final  conclusion;  its  

intention is not to nail the accused, but to comply with the most salutary and  

fundamental principle of natural justice i.e. audi alteram partem, as explained in

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Arsaf Ali vs. State of Assam (2008) 16 SCC 328.  In Sher Singh vs. State of  

Haryana (2015) 1 SCR 29 this Court has recently clarified that because of the  

language employed in Section 304B of the IPC, which deals with dowry death,  

the burden of proving innocence shifts to the accused which is in stark contrast  

and dissonance to a person’s right not to incriminate himself.  It is only in the  

backdrop of Section 304B that an accused must furnish credible evidence which  

is indicative of his innocence, either under Section 313 CrPC or by examining  

himself in the witness box or through defence witnesses, as he may be best  

advised.  Having made this clarification, refusal to answer any question put to  

the  accused  by  the  Court  in  relation  to  any  evidence  that  may  have  been  

presented against him by the prosecution or the accused giving an evasive or  

unsatisfactory answer, would not justify the Court to return a finding of guilt on  

this score.   Even if it is assumed that his statements do not inspire acceptance, it  

must not be lost sight of that the burden is cast on the prosecution to prove its  

case beyond reasonable doubt.   Once this burden is met, the Statements under  

Section 313 assume significance to the extent that the accused may cast some  

incredulity on the prosecution version.  It is not the other way around; in our  

legal system the accused is not required to establish his innocence. We say this  

because we are unable to subscribe to the conclusion of the High Court that the  

substance of his examination under Section 313 was indicative of his guilt. If no  

explanation is forthcoming, or is unsatisfactory in quality, the effect will be that  

the conclusion that may reasonably be arrived at would not be dislodged, and

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would, therefore, subject to the quality of the defence evidence, seal his guilt.  

Article 20(3) of the Constitution declares that no person accused of any offence  

shall be compelled to be a witness against himself.  In the case in hand, the High  

Court  was  not  correct  in  drawing an  adverse  inference  against  the  Accused  

because of what he has stated or what he has failed to state in his examination  

under Section 313 CrPC.

16 We also think that it was incumbent on the High Court to deal with the  

so-called  confession  in  detail.   It  is  far  from unknown that  confessions  are  

extracted from an accused under myriad threats,  including his  own physical  

safety.   We must  hasten  to  clarify  that  a  reading of  the  Judgment  does  not  

immediately reveal whether the conviction of the Accused by the Courts below  

was predicated on his alleged Confession.  

17 It is thus abundantly clear that the investigation conducted by the police  

was  less  than  satisfactory,  nay,  it  was  non-existent.   We are  constrained  to  

reiterate yet again that it is necessary to have a specialized section of the Police  

to investigate cases of heinous nature.  Both the prosecution and the High Court  

took the deposition of PW1 to be unimpeachably true, ignoring the fact that he  

as well as the Manager had access to Room No.115 for three days before the  

body of the Deceased was found, and during that  time they made decisions  

which cannot but raise suspicion in the minds of any reasonable person. There is  

as much opportunity and as much motive for them to have committed the crime

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as  has  been  tenuously  attributed  to  the  Accused  to  have  done  so.   To  rely  

substantially on the statement of such witnesses is forensically unsafe, to say the  

least.  Given the failure of the prosecution to prove the case beyond reasonable  

doubt, the benefit of the doubt would have to be bestowed on the Accused.  

18  The impugned Judgment is set aside.  The conviction of the Appellant is  

quashed.  

………..……..………………………………J. (SUDHANSU JYOTI MUKHOPADHAYA)

…………...…………………………………J. (VIKRAMAJIT SEN)

New Delhi; March 10,  2015.