NAGRAJ Vs STATE REP. BY INSPECTOR OF POLICE, T.N.
Bench: SUDHANSU JYOTI MUKHOPADHAYA,VIKRAMAJIT SEN
Case number: Crl.A. No.-001311-001311 / 2006
Diary number: 5390 / 2006
Advocates: Vs
B. BALAJI
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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.