Sahadevan & Anr. Vs.
State of Tamil Nadu
[Criminal Appeal No.
1405 of 2008]
J U D G M E N T
Swatanter Kumar, J.
1.
The
present appeal is directed against the judgment of the High Court dated 27th
September, 2006 vide which the High Court affirmed the judgment of conviction
and order of sentence dated 31st December, 2003 passed by the Trial Court.
2.
The
prosecution case is that Smt. Kamalal, PW-2 was married to one Yoganandan @
Loganathan, the deceased. The accused No.1, Chandran is the brother of Kamalal
(PW2). accused No.2, Sahadevan, and accused No. 3, Arul Murugan, were the
friends of accused No.1. PW2 was being ill-treated by Loganathan, her husband. Being
her brother, accused No.1 thought that if he murdered Loganathan, life of his sister
would be peaceful.
Thus, accused No.1
and his friends (the other two accused) entered into a criminal conspiracy to
commit murder of Loganathan. According to PW-5, Karuppuswamy, when he was
talking to one Chinnaswamy at a three star hotel near the Neruparichal bus
stand at about 10 p.m. on 9th July, 2002, he saw Sahadevan driving a TVS moped in
Povmmanayakkampallayam road, while two other persons were sitting as pillion
riders. The vehicle was proceeding towards west.
After a while, one of
them came back and again went in the same direction on the same vehicle. PW-4, then
saw the deceased, Yoganandan and accused No.1 going in the same direction on
the TVS moped at about 2 p.m. Again after some time, accused No.2 alone came back
on the moped. On 10th July, 2002, at around 8.30 a.m., PW-3, Rajendran, saw a dead
body in the Pommanayakkanpallam Road, whereupon he went to PW-1, the Administrative
Officer and informed him of that fact. PW-1, upon receiving this information,
went to the spot and saw the dead body. He then went to the Perumanallur Police
Station and made a complaint, Ext.P-1, to the Sub-Inspector of Police, Ganesan,
PW-8.
3.
Upon
receipt of the complaint, the police registered a case being Crime No.150 of
2002 for an offence under Section 302 of the Indian Penal Code, 1860 (for short
“the IPC”) against unknown accused. The Investigating Officer, PW-9, proceeded
to the scene of occurrence. There he prepared observation Mahazar, Ext.P-2 and
took photographs of the dead body.
4.
Between
3 p.m. to 6 p.m., he conducted inquest over the dead body in the presence of Panchayatdars
and witnesses and prepared the inquest report, Ext.P-13. The Senior Civil
Assistant Surgeon, PW7, attached to the Thirupur Government Hospital, after
receiving the requisite information and the body, performed autopsy on the body
of the deceased. She noted the injuries on the body of the deceased and issued the
post-mortem certificate, Ext. P-10, expressing the opinion that the deceased
would have died 27 to 28 hours prior to autopsy.
5.
It
is further the case of the prosecution that on 14th July, 2002, when PW-6,
Muthurathinam, President of Kanakampalayam Panchayat was in his office along
with one Shanmugasundaram, all the above-named three accused came to his office
and told him that deceased Loganathan was the brother-in- law of accused No.1
and on account of family problem between accused No.1 and the deceased, they
murdered Loganathan by strangulating him and after putting kerosene on him, set
the body of the deceased afire. The statements made by the accused were reduced
to writing by PW-6 and after obtaining their signatures and putting his own
signature thereon he handed over the report, Ext. P-4, to the Police Station
along with the custody of the accused whereupon PW-9, the Investigating Officer
arrested all the accused persons.
6.
PW9,
on the basis of the confessional statements, Ext.P-5 to P-7, recovered MO-6
(TVS moped TN 38 7344), MO-7 (bottle smelling of kerosene) and MO-8 (matchbox).
PW-9 then sent the MOs for forensic examination along with Ext. P-15, the requisition
therefor. Subsequently, PW-9 was relieved of his duties and PW-10 completed the
investigation of the case and filed the chargesheet against all the three
accused under Section 120B and Section 302 IPC. All the accused were tried in
accordance with law.
7.
We
may notice here that in their statement under Section 313 Cr.PC, the accused
persons denied the incident, including the alleged extra- judicial confession
made by them and also stated that they were falsely implicated in the case. However,
all the three accused chose not to lead any defence. Finally, the prosecution
examined as many as 10 witnesses and produced on record the documentary
evidence. The trial Court vide its judgment dated 31st December, 2003 acquitted
all the accused for an offence under Section 120B IPC, however, it convicted
all the three accused under Section 302 IPC and awarded them sentence of
imprisonment for life and fine of Rs. 5,000/-, in default thereof, to undergo rigorous
imprisonment for six months.
8.
Aggrieved
from the judgment of the trial court, the accused preferred an appeal before
the High Court which came to be dismissed vide order dated 27th September, 2006
resulting in the filing of the present appeal.
9.
Accused
No.2, Sahadevan and accused No.3, Arul Murugan have preferred the present
appeal. Accused No.1, Chandran has not filed any appeal.
10.
The
learned counsel appearing for these two appellants has advanced the following
arguments while impugning the judgment under appeal :-
i.
The
case of the prosecution is solely based upon the extra-judicial confession,
which confession is neither reliable nor has been recorded in accordance with
law. This extra-judicial confession cannot form the basis of conviction of the
appellants since it has no corroboration and when examined in light of the settled
principles of law, it is inconsequential, thus, the accused are entitled to the
benefit of doubt.
ii.
In
the present case, there is neither any eye-witness nor the prosecution has
proved the complete chain of circumstances. The courts have erred in applying
the theory of last seen together to return the finding of conviction against the
accused. There being no direct evidence of involvement of the appellants in the
commission of the crime, the theory of last seen together could not be of any assistance
to the case of the prosecution.
iii.
The
recoveries alleged to have been made in furtherance to the confessional
statements of the accused are inadmissible in evidence and, in any case, the
objects recovered have no link with the commission of the crime and as such, it
would be impermissible in law to use these recoveries against the accused for
sustaining their conviction.
iv.
The
courts have failed to appreciate the medical and other evidence placed on record
in its correct perspective. There are serious contradictions in the medical and
ocular evidence, as regards the time of the death of the deceased. Once, the
time of death of deceased is not established, the whole story of the
prosecution falls to the ground.
v.
According
to the learned counsel for the appellants, an extra-judicial confession,
besides being inadmissible, is also a very weak piece of evidence and in a case
of circumstantial evidence like the present, one cannot form a valid basis for
returning the finding of guilt against the accused.
11.
To
the contra, the learned counsel appearing for the State argued that the
extra-judicial confession in the present case is admissible as it is duly
corroborated by other prosecution evidence, and thus, the courts are fully
justified in convicting the accused. It is also contended that the present case
is of circumstantial evidence and the prosecution has succeeded in establishing
every circumstance of the chain of events that would fully support the view
that the accused is guilty of the offence. The court while dealing with the judgment
under appeal, upon proper appreciation of evidence, thus, has come to the right
conclusion.
12.
There
is no doubt that in the present case, there is no eye-witness. It is a case based
upon circumstantial evidence. In case of circumstantial evidence, the onus lies
upon the prosecution to prove the complete chain of events which shall
undoubtedly point towards the guilt of the accused. Furthermore, in case of
circumstantial evidence, where the prosecution relies upon an extra-judicial confession,
the court has to examine the same with a greater degree of care and caution. It
is a settled principle of criminal jurisprudence that extra-judicial confession
is a weak piece of evidence. Wherever the Court, upon due appreciation of the
entire prosecution evidence, intends to base a conviction on an extra- judicial
confession, it must ensure that the same inspires confidence and is corroborated
by other prosecution evidence. If, however, the extra- judicial confession suffers
from material discrepancies or inherent improbabilities and does not appear to
be cogent as per the prosecution version, it may be difficult for the court to
base a conviction on such a confession. In such circumstances, the court would
be fully justified in ruling such evidence out of consideration.
13.
Now,
we may examine some judgments of this Court dealing with this aspect.
14.
In
Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC 259], this Court stated
the principle that an extra-judicial confession, by its very nature is rather a
weak type of evidence and requires appreciation with a great deal of care and caution.
Where an extrajudicial confession is surrounded by suspicious circumstances, its
credibility becomes doubtful and it loses its importance.
15.
In
Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the Court held that it is well
settled that it is a rule of caution where the court would generally look for
an independent reliable corroboration before placing any reliance upon such
extra-judicial confession.
16.
Again
in Kavita v. State of T.N. [(1998) 6 SCC 108], the Court stated the dictum that
there is no doubt that conviction can be based on extrajudicial confession, but
it is well settled that in the very nature of things, it is a weak piece of
evidence. It is to be proved just like any other fact and the value thereof
depends upon veracity of the witnesses to whom it is made.
17.
While
explaining the dimensions of the principles governing the admissibility and
evidentiary value of an extra-judicial confession, this Court in the case of
State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] stated the principle that an
extra-judicial confession, if voluntary and true and made in a fit state of
mind, can be relied upon by the court. The confession will have to be proved like
any other fact. The value of evidence as to confession, like any other evidence,
depends upon the veracity of the witness to whom it has been made. The Court, further
expressed the view that such a confession can be relied upon and conviction can
be founded thereon if the evidence about the confession comes from the mouth of
witnesses who appear to be unbiased, not even remotely inimical to the accused
and in respect of whom nothing is brought out which may tend to indicate that
he may have a motive of attributing an untruthful statement to the accused.
18.
In
the case of Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230], the Court, while
holding the placing of reliance on extra-judicial confession by the lower
courts in absence of other corroborating material, as unjustified, observed: “87.
Confession ordinarily is admissible in evidence. It is a relevant fact. It can be
acted upon. Confession may under certain circumstances and subject to law laid down
by the superior judiciary from time to time form the basis for conviction. It
is, however, trite that for the said purpose the court has to satisfy itself in
regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession;
(iii) corroboration. XXX XXX XXX 89. A detailed confession which would
otherwise be within the special knowledge of the accused may itself be not
sufficient to raise a presumption that confession is a truthful one. Main features
of a confession are required to be verified. If it is not done, no conviction
can be based only on the sole basis thereof.”
19.
Accepting
the admissibility of the extra-judicial confession, the Court in the case of
Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] held that :- “29. There is
no absolute rule that an extra-judicial confession can never be the basis of a conviction,
although ordinarily an extra-judicial confession should be corroborated by some
other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v.
State of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 & 42),
Shiva Karam Payaswami Tewari v. State of Maharashtra and Mohd. Azad v. State of
W.B.] 30. In the present case, the extra-judicial confession by Balwan has been
referred to in the judgments of the learned Magistrate and the Special Judge,
and it has been corroborated by the other material on record. We are satisfied that
the confession was voluntary and was not the result of inducement, threat or
promise as contemplated by Section 24 of the Evidence Act, 1872.”
20.
Dealing
with the situation of retraction from the extra-judicial confession made by an accused,
the Court in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat
[(2009) 5 SCC 740], held as under : “It appears therefore, that the appellant has
retracted his confession. When an extra-judicial confession is retracted by an
accused, there is no inflexible rule that the court must invariably accept the
retraction. But at the same time it is unsafe for the court to rely on the retracted
confession, unless, the court on a consideration of the entire evidence comes
to a definite conclusion that the retracted confession is true.”
21.
Extra-judicial
confession must be established to be true and made voluntarily and in a fit
state of mind. The words of the witnesses must be clear, unambiguous and should
clearly convey that the accused is the perpetrator of the crime. The
extra-judicial confession can be accepted and can be the basis of conviction,
if it passes the test of credibility. The extra-judicial confession should inspire
confidence and the court should find out whether there are other cogent
circumstances on record to support it. [Ref. Sk. Yusuf v. State of W.B. [(2011)
11 SCC 754] and Pancho v. State of Haryana [(2011) 10 SCC 165].
22.
Upon
a proper analysis of the above-referred judgments of this Court, it will be
appropriate to state the principles which would make an extra- judicial
confession an admissible piece of evidence capable of forming the basis of
conviction of an accused. These precepts would guide the judicial mind while
dealing with the veracity of cases where the prosecution heavily relies upon an
extra-judicial confession alleged to have been made by the accused. The
Principles
i.
The
extra-judicial confession is a weak evidence by itself. It has to be examined
by the court with greater care and caution.
ii.
It
should be made voluntarily and should be truthful.
iii.
It
should inspire confidence.
iv.
An
extra-judicial confession attains greater credibility and evidentiary value, if
it is supported by a chain of cogent circumstances and is further corroborated by
other prosecution evidence.
v.
For
an extra-judicial confession to be the basis of conviction, it should not
suffer from any material discrepancies and inherent improbabilities.
vi.
Such
statement essentially has to be proved like any other fact and in accordance
with law.
23.
Having
stated the principles which may be kept in mind by the court while examining
the acceptability and evidentiary value of the extra- judicial confession, we
may now refer to the extra-judicial confession, Ext. P-4, in the case before us.
This extra-judicial confession is alleged to have been made by all the three
accused to one Muthurathinam, PW- 6. The said Ext. P-4 reads as under:- “I am
the president of Kanakampalayam today the 14.7.2002 at 9.30 in the morning,
when I was at my office along with loclite Shanmugasundaram, a person named
Chandran aged 36 son of Muthu and resident of Navakarai, Pooluvapatti along
with Sahadevan aged 27 s/o Pannerselvam having a furniture by name Sri Priya
agencies at Boyampalayam Sri Nagar and one Arul Murugan aged 23 s/o Krishnan, belonging
to Dindugal and going to printing work by staying at pandian nagar came to my
office saying that he along with his friends Sahadevan and Arulmurugan, on
08-07-02 his sisters husband Yoganathan @ Logananthan who was without going to work
and nor looking after the family and was loitering hereunder an no way to look
after his sister Kamalal and her children and more tortures from her husband
and confessed to her that her husband without going any work, he is simply
loitering hereunder and tried to him to separate her from her husband.
Hence elimination is better
than separation and said his sisters life would be, peaceful, he along with his
friends Sahadevan and Arulmurugan executed a friendly call to him and told him
that they would promised him a job at Tirupur. After 10 p.m. in the night, when
there was no traunt on the Neruperchial Bommanaichenpalayam mud road Sahadevan in
his moped with Loganathan sit and also made Arul Murugan to sit along with and
asked to halt at certain place and again Sahadevan came in moped and he along
with kerosene and match box and went there and parked the moped and were all 4
of them talking enticing Loganathan with getting him a job at Tirupur he with the
towel which was kept ready put around Loganathan’s neck and he strangled by
holding one end of the towel and Arulmurugan strangling by the other end of the
towel.
Mean while Sahadevan bought
how Loganathan’s face and hand and started face and since due to strangulation
Loganathan fainted and fell into the east side of the ditch and suddenly and
Chandran took kerosene and matchbox from moped cover which was kept ready, in
order to avoid identity burnt him and killed him and after that they all 3 took
the moped and they went to Sahadevan house and parked the vehicle and the same
night they went out of station and a return to Tirupur only yesterday. They
came to know that the police are after then they came to my house today and
told me what happened Shanmugasundram recorded the above averments of Chandran
after that bringing all 3 to you and present them before you.”
24.
As
per the case of the prosecution, the deceased was murdered on 9th – 10th July,
2002. The body of the deceased was taken into custody by the police on 10th
July, 2002 itself. The accused persons were residents of the same village and
there is nothing on record to show that the Police made any serious attempt to
search and arrest them. The Investigating Officers, PW-9 and PW-10, have not stated
in their statements that the accused persons were absconding. Four days later,
on 14th July, 2002, the accused persons are alleged to have gone to the office
of PW-6 to make the confession of having murdered the brother-in-law of accused
No.1. Ext. P-4 is addressed to the police inspector. If the accused were to make
such a statement to the police itself, then what was the need for them to first
go to PW-6. However, an explanation is advanced on behalf of the State that the
accused only signed the statement and it was PW-6 who then handed over Ext. P-4
to the police, along with the custody of the accused persons.
25.
Further,
Ext. P-4 is stated to have been made by the accused persons to PW-6, in the presence
of Shanmugasundaram. The said person, for reasons best known to the prosecution,
has not been examined by the prosecution to prove the recording of Ext. P-4 and
to provide greater credence to this document.
26.
Moreover,
in their statement under Section 313 CrPC, the accused have denied the very
execution of Ext. P-4. In order to examine the veracity of this document, the
court essentially has to find out the correctness and corroboration of the facts
stated in Ext. P-4 by other prosecution evidence. In Ext. P-4, it is stated
that the deceased ill-treated his wife, PW-2, Kamalal and that was the motive
and, in fact, essentially the cause for the accused to murder the deceased. The
whole emphasis is upon the bitter relationship between the husband and wife. The
very basis of Ext. P-4 falls to the ground when one peruses the statement of
Kamalal, PW- 2. In her statement, she has stated that her husband was employed in
a rolling mill and that there was no dispute between them. Further, she has categorically
stated that she had never stated anything with regard to dispute between her
husband and accused No.1 to the police and that there was no property dispute
amongst them. Upon this, this witness was declared hostile by the prosecution
with the leave of the court. Even in her cross- examination, nothing could be
brought out to establish the fact of alleged cruelties inflicted by the
deceased upon her and there being any dispute between them.
27.
An
attempt has been made on behalf of the prosecution to support its case by the
statements of PW-4 and PW-5. PW-4 stated that he had seen Loganathan, who used
to live opposite his house, going on a moped along with his wife’s brother
Chandran at about 2 O’clock in the afternoon. After knowing that there was a
corpse lying at Nereuperichel, he went and saw the dead body. It was that of
Loganathan.
28.
PW5
also deposed that on 9th July, 2002, at about 10.00 p.m., he had seen three
persons going in a moped towards Bommanaickanpalayam road. After sometime, only
one person returned on the moped and again went towards west. Thereafter, those
three persons returned. He stated that he could not identify those three
persons, if he saw them. Out of the three, he knew only one person who drove
the moped and that was accused No.2, Sahadevan. Next day, upon hearing the news
that there was a corpse lying, he went and saw it. Since the face of the corpse
was burnt, he could not identify him.
29.
The
statement of these two witnesses is at variance with Exhibit P4 and hardly
finds corroboration from other prosecution evidence and also suffers from
discrepancies. Thus, the contents of Exhibit P4 are belied by the prosecution
evidences itself and, therefore, it is not safe for the Court to rely upon such
extra-judicial confession. The various factors mentioned above bring out
serious deficiencies in the veracity, credence and evidentiary value of Exhibit
P4. For the afore-recorded reasoning, we must disturb the finding of guilt recorded
by the Trial Court while substantially relying upon Exhibit P4 as, in our
opinion, Exhibit P4 has to be ruled out from the zone of consideration, which
we hereby do.
30.
The
courts below, the Trial Court in particular, have laid some emphasis on the
theory of last seen, while finding the accused guilty of the offence. As far as
PW5 is concerned, he says that he only saw three persons going on the moped and
he could not identify these persons. PW4 stated that he had seen the deceased
going on a moped with Chandran at about 2.00 o’clock in the afternoon. The time
lag between the time at which this witness saw the accused and the deceased
together and when the body of the deceased was found on the next day is considerably
long. According to PW4, he could identify Loganathan while, according to PW5, the
face of the deceased was burnt and, therefore, he could not identify him. Moreover,
according to the doctor, PW7, the deceased had died about 27 to 28 hours before
the autopsy. The autopsy, was admittedly, performed upon the deceased on 10th
of July, at about 2 o’clock. That implies that the deceased would have died
sometime during the morning of 9th July, while according to PW4, he had seen
the deceased along with Chandran after 2 p.m. on 9th July, 2002.
31.
With
the development of law, the theory of last seen has become a definite tool in
the hands of the prosecution to establish the guilt of the accused. This concept
is also accepted in various judgments of this Court. The Court has taken the
consistent view that where the only circumstantial evidence taken resort to by the
prosecution is that the accused and deceased were last seen together, it may raise
suspicion but it is not independently sufficient to lead to a finding of guilt.
In Arjun Marik v. State of Bihar [1994 Supp.(2) SCC 372], this Court took the view
that the where the appellant was alleged to have gone to the house of one
Sitaram in the evening of 19th July, 1985 and had stayed in the night at the house
of deceased Sitaram, the evidence was very shaky and inconclusive. Even if it was
accepted that they were there, it would, at best, amount to be the evidence of the
appellants having been last seen together with the deceased. The Court further
observed that it is settled law that the only circumstance of last seen will
not complete the chain of circumstances to record a finding that it is
consistent only with the hypothesis of guilt of the accused and, therefore, no
conviction, on that basis alone, can be founded.
32.
Even
in the case of State of Karnataka v. M.V. Mahesh [(2003) 3 SCC 353], this Court
held that merely being last seen together is not enough. What has to be
established in a case of this nature is definite evidence to indicate that the
deceased had been done to death of which the respondent is or must be aware as
also proximate to the time of being last seen together. No such clinching
evidence is put forth. It is no doubt true that even in the absence corpus
delicti it is possible to establish in an appropriate case commission of murder
on appropriate material being made available to the Court.
33.
In
the case of State of U.P. v. Satish [(2005) 3SCC 114], this Court had stated
that the principle of last seen comes into play where the time gap between the
point of time when the accused and the deceased were last seen alive and when
the deceased is found dead is so small that possibility of any person other
than the accused being the author of the crime becomes impossible.
34.
Undoubtedly,
the last seen theory is an important event in the chain of circumstances that
would completely establish and/or could point to the guilt of the accused with some
certainty. But this theory should be applied while taking into consideration
the case of the prosecution in its entirety and keeping in mind the
circumstances that precede and follow the point of being so last seen.
35.
The
statement of PW5 does not indicate the time as to when he had seen the deceased
and with which of the accused. He expressed inability to even identify them. PW4
though claims to have seen them but has given a time which itself is doubtful. Even
this cannot be stated with certainty that at that particular time the deceased
was alive or dead.
36.
In
light of the abovementioned contradictions and the uncertainty of evidence, we
are unable to sustain the view taken by the High Court that on the theory of
last seen, the accused can be convicted. This fact is uncorroborated and
suffers from apparent contradictions and discrepancies as well. RECOVERY
37.
PW9,
the Investigating Officer, after arresting accused No.2, Sahadevan, recorded
his statement. The accused stated that he had hidden kerosene bottle, a match
box and TVS Moped bearing No.50 TN 38 7344 and could get them recovered. He
also stated that Chandran had taken him on that moped. In furtherance to this statement
of this accused and in presence of the witnesses at about 2.45 hours, the Investigating
Officer recovered and seized MO6, the TVS moped, MO7, bottle with kerosene odour
and MO8, match box. In his entire deposition, this witness had not stated that
these were the articles which were used by the accused persons in the commission
of the crime. It was expected of the prosecution to establish a connection
between the articles recovered and the incident or the crime, as alleged to
have been committed. According to the prosecution, kerosene oil was poured over
the deceased and he was set on fire. No kerosene was found on the body of the deceased
or on the belongings, i.e., clothing, chappal etc. of the deceased. The witness
to the confession statement, Shanmugasundram, was not examined. PW6 admitted
before the Court that he did not see the house of the accused, Sahadevan. In
the case of State of Rajasthan v. Bhup Singh [(1997) 10 SCC 675], this Court observed
the following as the conditions prescribed in Section 27 of the Indian Evidence
Act, 1872 for unwrapping the cover of ban against admissibility of statement of
accused to police (1) a fact should have been discovered in consequence of the
information received from the accused; (2) he should have been accused of an
offence; (3) he should have been in the custody of a police officer when he supplied
the information; (4) the fact so discovered should have been deposed to by the
witness. The Court observed that if these conditions are satisfied, that part
of the information given by the accused which led to such recovery gets denuded
of the wrapper of prohibition and it becomes admissible in evidence.
38.
In
the present case, the recoveries have been effected upon the statement of the
accused under Section 27 of the Evidence Act. These recoveries, in our view,
were made in furtherance to the statement of the accused who were in police custody
and in presence of independent witnesses. It may be that one of them had not
been examined but that, by itself, shall not vitiate the recovery or make the
articles inadmissible in evidence. The aspect which the Court has to consider
in the present case is whether these recoveries have been made in accordance with
law and whether they are admissible in evidence or not and most importantly the
link with and effect of the same vis-a-vis the commission of the crime. According
to the post mortem report Ext.P-10 as well as the forensic report Ext.P-22,
kerosene or its smell was neither found on the body nor the belongings of the
deceased and, therefore, it creates a little doubt as to whether the recovered
items were at all and actually used in the commission of crime. However, as far
as TVS moped, MO-6 is concerned, there is sufficient evidence to show that it
was used by the accused but the other contradictions and discrepancies noted
above overshadow this evidence and give advantage to the accused.
39.
Now,
we would deal with the contention of the appellant that the prosecution has not
been able to establish even the time of death of the deceased. According to the
prosecution, the deceased had been murdered on 9th July, 2002 at about 11 p.m.
but according to the post mortem report Exhibit P10, the deceased was murdered
on 10th July, 2002, i.e. between 10 and 11 a.m. The post mortem report was
recorded on 11th July, 2002 at 2.00 p.m. stating that the deceased was murdered
before 27 to 28 hours. Absence of kerosene oil on the body of the deceased and
articles taken into custody from the body of the deceased, the contradictions
in the statement of the witnesses, the fact that PW2 has not supported the case
of the prosecution and PW5 not being able to even identify the accused, lend support
to the arguments raised on behalf of the accused and create a dent in the story
of the prosecution. Not on any single ground, as discussed above, but in view of
the cumulative effect of the above discussion on all the aspects, we are unable
to sustain the judgment of the High Court. In our opinion, the prosecution has
failed to prove its case beyond reasonable doubt.
40.
In
view of our above discussion, the last question for consideration of the Court
is as to what order, if any, is required to be made against the non-appealing accused,
i.e., accused No.1, Chandran. From the prosecution evidence, it is clear that some
role had been specifically assigned to the accused Chandran. He is the
brother-in-law of the deceased and is stated to have been last seen taking the deceased
on the moped whereafter the deceased never returned. In normal circumstances, the
obvious result would be to leave the non-appealing accused to undergo the punishment
awarded to him in accordance with law. But, where the Court finds that the entire
case of the prosecution suffers from material contradictions, the most crucial evidence
is not reliable, there are definite and material flaws in the case of the
prosecution and the Police has failed to discharge its duties at different
steps, in that event, it will be difficult for this Court to leave the
non-appealing accused to his fate. Under the Indian criminal jurisprudence, an
accused is presumed to be innocent until proven guilty and his liberty can be
curtailed by putting him under imprisonment by due process of law only. If the entire
case of the prosecution has been found to be unreliable and the prosecution, as
a whole, has not been able to prove its case beyond reasonable doubt, then the
benefit should accrue to all the accused persons and not merely to the accused
who have preferred an appeal against the judgment of conviction. In the case of
Raja Ram v. State of Madhya Pradesh [(1994) 2 SCC 568], this Court extended the
benefit of conversion of sentence to all the accused, from that under Section
302 IPC to one under Section 304 IPC, including the non-appealing accused. The
Court held that in its opinion, the case of the non-appealing accused was not really
distinguisbable from other accused persons and it was appropriate that benefit
of the judgment should also be extended to the non-appealing accused, Ram
Sahai, in that case. Again, in the case of Bijoy Singh v. State of Bihar
[(2002) 9 SCC 147], this Court clearly stated the principle that it has set up
a judicial precedent that where on evaluation of the case, the Court reaches
the conclusion that no conviction of any accused is possible the benefit of
that decision must be extended to the co-accused, similarly situated, though he
has not challenged the order by way of an appeal.
In the case of Pawan Kumar
v. State of Haryana [(2003) 11 SCC 241], while referring to the myth of the salutary
powers exercisable by the Court under Article 142 of the Constitution for doing
complete justice to the parties, the Court opined that powers under Article 136
of the Constitution can be exercised by it even suo motu and that the right to personal
liberty guaranteed to the citizens, as enshrined under Article 21 of the Constitution,
would be a factor which can be considered by the Court in granting such reliefs.
The Court held as
under : “17. Apart from the salutary powers exercisable by this Court under Article
142 of the Constitution for doing complete justice to the parties, the powers
under Article 136 of the Constitution can be exercised by it in favour of a
party even suo motu when the Court is satisfied that compelling grounds for its
exercise exist but it should be used very sparingly with caution and circumspection
inasmuch as only the rarest of rare cases. One of such grounds may be, as it
exists like in the present case, where this Court while considering appeal of
one of the accused comes to the conclusion that conviction of appealing as well
as non-appealing accused both was unwarranted.
Upon the aforesaid
conclusion arrived at by the Apex Court of the land, further detention of the non-appealing
accused, by virtue of the judgment rendered by the High Court upholding his
conviction, being without any authority of law, infringes upon the right to personal
liberty guaranteed to the citizen as enshrined under Article 21 of the
Constitution. In our view, in cases akin to the present one, where there is either
a flagrant violation of mandatory provision of any statute or any provision of
the Constitution, it is not that this Court has a discretion to exercise its
suo motu power but a duty is enjoined upon it to exercise the same by setting
right the illegality in the judgment of the High Court as it is well settled that
illegality should not be allowed to be perpetuated and failure by this Court to
interfere with the same would amount to allowing the illegality to be
perpetuated. In view of the foregoing discussion, we are of the opinion that
accused Balwinder Singh alias Binder is also entitled to be extended the same
benefit which we are granting in favour of the appellant.” Similar view has
also been expressed by this Court in the cases of Madhu v. State of Kerala
[(2012) 2 SCC 399] and Gurucharan Kumar v. State of Rajasthan [(2003) 2 SCC
698].
41.
It
is very difficult to set any universal principle which could be applied to all
cases irrespective of the facts, circumstances and the findings returned by the
Court of competent jurisdiction. It will always depend upon the facts and
circumstances of a given case. Where the Court finds that the prosecution
evidence suffers from serious contradictions, is unreliable, is ex facie
neither cogent nor true and the prosecution has failed to discharge the established
onus of proving the guilt of the accused beyond reasonable doubt, the Court will
be well within its jurisdiction to return the finding of acquittal and even suo
moto extend the benefit to a non-appealing accused as well, more so, where the Court
even disbelieves the very occurrence of the crime itself.
Of course, the role
attributed to each of the accused and other attendant circumstances would be
relevant considerations for the Court to apply its discretion judiciously. There
can be varied reasons for a non-appealing accused in not approaching the
appellate Court. If, for compelling and inevitable reasons, like lack of
finances, absence of any person to pursue his remedy and lack of proper
assistance in the jail, an accused is unable to file appeal, then it would amount
to denial of access to justice to such accused. The concept of fair trial would
take within its ambit the right to be heard by the appellate Court. It is
hardly possible to believe that an accused would, out of choice, give up his
right to appeal, especially in a crime where a sentence of imprisonment for life
is prescribed and awarded.
Fairness in the
administration of justice system and access to justice would be the relevant considerations
for this Court to examine whether a non-appealing accused could or could not be
extended the benefit of the judgment of acquittal. The access to justice is an essential
feature of administration of justice. This is applicable with enhanced rigour
to the criminal jurisprudence. Where the court disbelieves the entire incident
of the occurrence or where the role of the accused who has not appealed is
identical to that of the other appealing accused or where the ends of justice
demand, the Court would not hesitate and, in fact, is duty bound, to dispense
justice in accordance with law. The powers of this Court, in terms of Articles
136 and 142 on the one hand and the rights of an accused under Article 21 of
the Constitution on the other, are wide enough to deliver complete justice to the
parties. These powers are incapable of being curtailed by such technical
aspects which would not help in attainment of justice in the opinion of the Court.
In light of the above principles, this Court is required to consider the effect
of these judgments on the case of the non-appealing accused in the present
case.
42.
In
the present case, accused No.1, Chandran had been attributed the same role as
the other two accused. All the accused were stated to have murdered the
deceased and burnt his body. It was a case of circumstantial evidence where not
only has the prosecution failed to prove all the facts and events to complete
the chain of events pointing only towards the guilt of the accused but there
are also definite discrepancies in the case of the prosecution, contradictions between
the statements of the material witnesses and the most important piece of
prosecution evidence, the extra- judicial confession, Exhibit P4, is found
entirely unreliable, not worthy of credence as well as the facts recorded in
Exhibit P4 stand disproved by another prosecution witness herself, i.e., PW-2,
who, in fact, has lost her husband.
43.
For
the reasons afore-recorded, while accepting the appeal of the accused-appellants,
we also direct that the benefit of this judgment shall also stand extended to
accused No.1, Chandran, who is in jail. All the accused are acquitted of the
charge under Section 302 IPC. They be set at liberty forthwith.
…………………………….,J.
[A.K. Patnaik]
…………………………….,J.
[Swatanter Kumar]
New
Delhi;
May
8, 2012
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