NAGRAJ Vs. STATE REP. BY INSPECTOR OF POLICE, T.N.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1311 of 2006, Judgment Date: Mar 10, 2015
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 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 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 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 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
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 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
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 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 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.
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 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 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 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 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.
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