Full Judgment Text
2025 INSC 446
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 3318 OF 2023
MURUGAN … Appellant
Versus
THE STATE
REP. BY THE INSPECTOR OF POLICE …Respondent
J U D G M E N T
AUGUSTINE GEORGE MASIH, J.
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.
2. Briefly, the facts are that on 06.05.2018 at about
10:15 p.m., the deceased (Jagadeesh Durai) – a
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
Date: 2025.04.04
16:56:25 IST
Reason:
Special Branch Grade-I Constable found the
CRIMINAL APPEAL NO. 3318 OF 2023
Page 1 of 15
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.
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
CRIMINAL APPEAL NO. 3318 OF 2023
Page 2 of 15
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.
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
CRIMINAL APPEAL NO. 3318 OF 2023
Page 3 of 15
year under Section 302 read with Section 149 IPC.
The Trial Court acquitted A3.
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.
6. The counsel for the appellant has contended that
the last seen evidence is that of Joseph - PW12, who
claimed to have witnessed the incident while he was
returning on the motorcycle from Valliyur along with
Michael. The tractor-trailer was being driven at
high speed by the appellant accompanied by two
others being followed by the deceased constable
shouting at them to stop. This was at night after
11:00 p.m. when, in the absence of any street light,
chances of identification are very less. That apart,
he recognized the deceased on the basis of his voice.
Counsel asserts that this witness admits that he
was present at the time of postmortem but this
aspect of he having seen the appellant and two
other accused i.e., A2 and A3, was not disclosed to
the Police, rather the statement of this witness
CRIMINAL APPEAL NO. 3318 OF 2023
Page 4 of 15
(PW12) was recorded only on 23.05.2018 after a
period of 17 days. Prior thereto, he did not disclose
anything to anyone. Inference under Section 114 of
the Indian Evidence Act, 1872 warrants to be drawn
and his evidence is not to be believed.
7. The involvement of all the accused, discovery and
their specific roles have been brought about on the
basis of extra judicial confession of A2 and A3
before PW-13, on 10.05.2018, which has been found
to be not reliable by the High Court on the ground
that A2 and A3 had been arrested on 08.05.2018 as
per the admission of PW24. The alleged
confessions, if any, made on 10.05.2018 would be
inadmissible being firstly in police custody and
secondly, there was no occasion for these two to
make such confessions.
8. The delay in reaching followed by presentation of
the FIR to the Magistrate at 3:30 p.m. has also been
highlighted by the counsel for the appellant. He has
referred to the evidence of PW-15, the Head Clerk in
the Magistrate’s Court, who deposed that he
received the FIR at 3:30 p.m. on 07.05.2018.
Nothing has been stated by him with regard to the
transfer of the Magistrate, before whom the said FIR
CRIMINAL APPEAL NO. 3318 OF 2023
Page 5 of 15
had to be presented, which is the ground taken by
the prosecution as an explanation for the delay in
presentation of the FIR to the Magistrate.
9. Reference has also been made to the evidence of
PW-20, the constable who was sent with the FIR to
the Court, where he had stated that the Magistrate
has been transferred. However, this witness admits
that ordinarily the FIRs have to be handed over to
the Clerk of the Court, which was not done in the
present case and he had reached the Court at 3.30
p.m. when the FIR was presented to the Magistrate.
Both these witnesses have admitted that as per
practice, FIRs under Section 302 IPC cases were
being sent immediately and the entries were also
made forthwith.
10. Counsel for the appellant submits that as per the
prosecution, PW-24 was informed about the sand
theft on the basis of the information received by the
deceased constable from Manoharan and
Maharajan. None of these two witnesses have been
examined, which is the relevant information on the
basis of which the deceased had proceeded to follow
the accused and chased them. It has also been
highlighted by the counsel that no case has been
CRIMINAL APPEAL NO. 3318 OF 2023
Page 6 of 15
registered against the accused person under the
Mines and Minerals (Development and Regulation)
Act, 1957 for the theft /smuggling of river sand.
11. Another aspect which has been highlighted is that
no sand was found in the tractor-trailer and this
aspect has been admitted by PW-1 in his cross-
examination. He has also stated that there was no
river sand on the ground as well where the tractor-
trailer were parked.
12. Counsel for the appellant contends that the very
basis of the prosecution story leading to chase of the
accused by the deceased constable Jagadeesh Durai
is the theft of the river sand clashes with there being
no evidence with regard to the sand being available
in the trailer or nearby. It has been argued that the
evidence of the alleged eye witness Tr. Arokiya
Sesuraja - PW2 has been disbelieved by the High
Court, which finding has not been challenged and
has attained finality. Similarly, the extra judicial
confessions of the co-accused (A2 and A3) before
Maha Harichandran - PW13 having found to be
made during the police custody thus not admissible,
leaves no evidence against the appellant rendering
the conviction under Section 302 IPC illegal and
CRIMINAL APPEAL NO. 3318 OF 2023
Page 7 of 15
unsustainable. The prosecution case having been
shattered, the appeal deserves to be allowed.
13. On the other hand, learned counsel for the State
has pointed out that there is ample evidence which
connects the appellant with the commission of the
offence. The call records clearly indicate that the
deceased informed PW24 and PW1 about the theft of
the river sand by all three accused. The intention
was apparent, as during the run, the tyre of the
trailer to the tractor having been damaged, the
tractor had come to a halt and to avoid arrest at the
hands of the deceased, the appellant and the co-
accused proceeded to attack him, resulting in his
death. Recovery, as has been effected from the spot,
specifically the three pairs of slippers, establishes
the presence, apart from the fingerprints taken from
the tractor-trailer as also the weapon of offence i.e.,
“wheel spanner”, which matches with that of the
fingerprints of the appellant.
14. He, however, could not dispute the factum that the
evidence as has been led by the prosecution to a
great extent, relatable to the eye witness - Tr.
Arokiya Sesuraja – PW2, and the extra judicial
confession before Maha Harichandran PW-13 has
CRIMINAL APPEAL NO. 3318 OF 2023
Page 8 of 15
been disbelieved by the High Court. Those were the
two star witnesses, who, alongwith the evidence of
Joseph (PW 12), the last seen witness, formed the
basis for connecting the appellant with the crime.
15. With evidence of these three crucial witnesses
having been disbelieved by the Court, the only
evidence which has been pressed into service is the
electronic evidence and the fingerprints which have
been found at the site, apart from the slippers.
16. The counsel for the respondent has, however,
vehemently supported the judgment passed by the
High Court and has thus prayed for dismissal of the
appeal.
17. Having considered the submissions made by the
counsel for the parties and having gone through the
above referred to statements of the witnesses, what
is apparent is that the High Court has ignored the
factum that the evidence of the witnesses which
were the basis of the prosecution case and the
backbone having crumbled, with the Court itself not
relying thereon while giving benefit to the co-
accused, the same benefit could not have been
denied to the appellant being similarly placed in the
given facts and circumstances of the present case.
CRIMINAL APPEAL NO. 3318 OF 2023
Page 9 of 15
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.
CRIMINAL APPEAL NO. 3318 OF 2023
Page 10 of 15
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.
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
CRIMINAL APPEAL NO. 3318 OF 2023
Page 11 of 15
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
CRIMINAL APPEAL NO. 3318 OF 2023
Page 12 of 15
holding the appellant guilty of an offence under
Section 302. The last seen evidence, therefore, also
having been found to be not trustworthy.
21. In Karakkattu Muhammed Basheer vs. State of
1
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
1
2024 (10) SCC 813
CRIMINAL APPEAL NO. 3318 OF 2023
Page 13 of 15
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.”
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.
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
CRIMINAL APPEAL NO. 3318 OF 2023
Page 14 of 15
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.
26. Pending application(s), if any, also stand disposed
of.
…..……………………………….J.
[ ABHAY S. OKA ]
……………………………………..J.
[ AHSANUDDIN AMANULLAH ]
……………………………………..J.
[ AUGUSTINE GEORGE MASIH ]
NEW DELHI;
APRIL 04, 2025
CRIMINAL APPEAL NO. 3318 OF 2023
Page 15 of 15
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 3318 OF 2023
MURUGAN … Appellant
Versus
THE STATE
REP. BY THE INSPECTOR OF POLICE …Respondent
J U D G M E N T
AUGUSTINE GEORGE MASIH, J.
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.
2. Briefly, the facts are that on 06.05.2018 at about
10:15 p.m., the deceased (Jagadeesh Durai) – a
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
Date: 2025.04.04
16:56:25 IST
Reason:
Special Branch Grade-I Constable found the
CRIMINAL APPEAL NO. 3318 OF 2023
Page 1 of 15
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.
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
CRIMINAL APPEAL NO. 3318 OF 2023
Page 2 of 15
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.
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
CRIMINAL APPEAL NO. 3318 OF 2023
Page 3 of 15
year under Section 302 read with Section 149 IPC.
The Trial Court acquitted A3.
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.
6. The counsel for the appellant has contended that
the last seen evidence is that of Joseph - PW12, who
claimed to have witnessed the incident while he was
returning on the motorcycle from Valliyur along with
Michael. The tractor-trailer was being driven at
high speed by the appellant accompanied by two
others being followed by the deceased constable
shouting at them to stop. This was at night after
11:00 p.m. when, in the absence of any street light,
chances of identification are very less. That apart,
he recognized the deceased on the basis of his voice.
Counsel asserts that this witness admits that he
was present at the time of postmortem but this
aspect of he having seen the appellant and two
other accused i.e., A2 and A3, was not disclosed to
the Police, rather the statement of this witness
CRIMINAL APPEAL NO. 3318 OF 2023
Page 4 of 15
(PW12) was recorded only on 23.05.2018 after a
period of 17 days. Prior thereto, he did not disclose
anything to anyone. Inference under Section 114 of
the Indian Evidence Act, 1872 warrants to be drawn
and his evidence is not to be believed.
7. The involvement of all the accused, discovery and
their specific roles have been brought about on the
basis of extra judicial confession of A2 and A3
before PW-13, on 10.05.2018, which has been found
to be not reliable by the High Court on the ground
that A2 and A3 had been arrested on 08.05.2018 as
per the admission of PW24. The alleged
confessions, if any, made on 10.05.2018 would be
inadmissible being firstly in police custody and
secondly, there was no occasion for these two to
make such confessions.
8. The delay in reaching followed by presentation of
the FIR to the Magistrate at 3:30 p.m. has also been
highlighted by the counsel for the appellant. He has
referred to the evidence of PW-15, the Head Clerk in
the Magistrate’s Court, who deposed that he
received the FIR at 3:30 p.m. on 07.05.2018.
Nothing has been stated by him with regard to the
transfer of the Magistrate, before whom the said FIR
CRIMINAL APPEAL NO. 3318 OF 2023
Page 5 of 15
had to be presented, which is the ground taken by
the prosecution as an explanation for the delay in
presentation of the FIR to the Magistrate.
9. Reference has also been made to the evidence of
PW-20, the constable who was sent with the FIR to
the Court, where he had stated that the Magistrate
has been transferred. However, this witness admits
that ordinarily the FIRs have to be handed over to
the Clerk of the Court, which was not done in the
present case and he had reached the Court at 3.30
p.m. when the FIR was presented to the Magistrate.
Both these witnesses have admitted that as per
practice, FIRs under Section 302 IPC cases were
being sent immediately and the entries were also
made forthwith.
10. Counsel for the appellant submits that as per the
prosecution, PW-24 was informed about the sand
theft on the basis of the information received by the
deceased constable from Manoharan and
Maharajan. None of these two witnesses have been
examined, which is the relevant information on the
basis of which the deceased had proceeded to follow
the accused and chased them. It has also been
highlighted by the counsel that no case has been
CRIMINAL APPEAL NO. 3318 OF 2023
Page 6 of 15
registered against the accused person under the
Mines and Minerals (Development and Regulation)
Act, 1957 for the theft /smuggling of river sand.
11. Another aspect which has been highlighted is that
no sand was found in the tractor-trailer and this
aspect has been admitted by PW-1 in his cross-
examination. He has also stated that there was no
river sand on the ground as well where the tractor-
trailer were parked.
12. Counsel for the appellant contends that the very
basis of the prosecution story leading to chase of the
accused by the deceased constable Jagadeesh Durai
is the theft of the river sand clashes with there being
no evidence with regard to the sand being available
in the trailer or nearby. It has been argued that the
evidence of the alleged eye witness Tr. Arokiya
Sesuraja - PW2 has been disbelieved by the High
Court, which finding has not been challenged and
has attained finality. Similarly, the extra judicial
confessions of the co-accused (A2 and A3) before
Maha Harichandran - PW13 having found to be
made during the police custody thus not admissible,
leaves no evidence against the appellant rendering
the conviction under Section 302 IPC illegal and
CRIMINAL APPEAL NO. 3318 OF 2023
Page 7 of 15
unsustainable. The prosecution case having been
shattered, the appeal deserves to be allowed.
13. On the other hand, learned counsel for the State
has pointed out that there is ample evidence which
connects the appellant with the commission of the
offence. The call records clearly indicate that the
deceased informed PW24 and PW1 about the theft of
the river sand by all three accused. The intention
was apparent, as during the run, the tyre of the
trailer to the tractor having been damaged, the
tractor had come to a halt and to avoid arrest at the
hands of the deceased, the appellant and the co-
accused proceeded to attack him, resulting in his
death. Recovery, as has been effected from the spot,
specifically the three pairs of slippers, establishes
the presence, apart from the fingerprints taken from
the tractor-trailer as also the weapon of offence i.e.,
“wheel spanner”, which matches with that of the
fingerprints of the appellant.
14. He, however, could not dispute the factum that the
evidence as has been led by the prosecution to a
great extent, relatable to the eye witness - Tr.
Arokiya Sesuraja – PW2, and the extra judicial
confession before Maha Harichandran PW-13 has
CRIMINAL APPEAL NO. 3318 OF 2023
Page 8 of 15
been disbelieved by the High Court. Those were the
two star witnesses, who, alongwith the evidence of
Joseph (PW 12), the last seen witness, formed the
basis for connecting the appellant with the crime.
15. With evidence of these three crucial witnesses
having been disbelieved by the Court, the only
evidence which has been pressed into service is the
electronic evidence and the fingerprints which have
been found at the site, apart from the slippers.
16. The counsel for the respondent has, however,
vehemently supported the judgment passed by the
High Court and has thus prayed for dismissal of the
appeal.
17. Having considered the submissions made by the
counsel for the parties and having gone through the
above referred to statements of the witnesses, what
is apparent is that the High Court has ignored the
factum that the evidence of the witnesses which
were the basis of the prosecution case and the
backbone having crumbled, with the Court itself not
relying thereon while giving benefit to the co-
accused, the same benefit could not have been
denied to the appellant being similarly placed in the
given facts and circumstances of the present case.
CRIMINAL APPEAL NO. 3318 OF 2023
Page 9 of 15
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.
CRIMINAL APPEAL NO. 3318 OF 2023
Page 10 of 15
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.
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
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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
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holding the appellant guilty of an offence under
Section 302. The last seen evidence, therefore, also
having been found to be not trustworthy.
21. In Karakkattu Muhammed Basheer vs. State of
1
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
1
2024 (10) SCC 813
CRIMINAL APPEAL NO. 3318 OF 2023
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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.”
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.
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
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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.
26. Pending application(s), if any, also stand disposed
of.
…..……………………………….J.
[ ABHAY S. OKA ]
……………………………………..J.
[ AHSANUDDIN AMANULLAH ]
……………………………………..J.
[ AUGUSTINE GEORGE MASIH ]
NEW DELHI;
APRIL 04, 2025
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