REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1498 OF 2010

Murugan ….Appellant(s)

VERSUS

State of Tamil Nadu ….Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1.This appeal is filed by the accused against the

final judgment and order dated 25.04.2007 passed

by the High Court of Judicature at Madras in

Criminal Appeal No. 804 of 2006 whereby the High

Court dismissed the appeal filed by the

appellant(Accused) and confirmed the order dated

02.08.2006 passed by the Additional Sessions

Judge, Namakkal (Fast Track Court) in Sessions

1

Case No.5 of 2006 convicting the appellant under

Sections 364 and 302/34 of the Indian Penal Code,

1860 (hereinafter referred to as “IPC”) and

sentenced him to undergo rigorous imprisonment

for 7 years under Section 364 IPC and to pay a fine

of Rs.1000/-, in default of payment of fine, to

undergo further simple imprisonment for one month

and imprisonment for life under Section 302/34 IPC

and to pay a fine of Rs.5000/- in default of payment

of fine, to undergo further simple imprisonment for

two months. The sentences would run

concurrently.

2.In order to appreciate the issues arising in the

case, it is necessary to set out the prosecution case

in detail:

3.One person by name "Kumar" (since dead) was

the uncle of a girl "Geetha". At the relevant time,

Geetha was in sixth standard. Kumar was married

but living separately from his wife. Kumar and

2

Geetha were living in the one locality at a short

distance. Kumar had developed liking for Geetha

and wanted to marry her.

4. Murugan (father of Geetha) was not agreeable

to the Kumar's proposal to marry Geetha.

Murugan(Geetha’s father) used to say that Kumar

had already ruined the life of his wife and now he

wanted to ruin his daughter's life also. Kumar, on

the other hand, used to threaten Geetha that one

day he would kidnap her and marry her.

5.It is the case of prosecution, that on

01.12.2002 afternoon, Kumar went to the house of

Geetha and demanded "Chili" to cook mutton. At

that time, Geetha was alone in the house. When

Geetha refused him to give Chili, Kumar entered

into the house and took Chili of his own and left the

house saying that one day, he would kidnap her

and rape her.

3

6.On the same day at around 10 P.M., Kumar

along with Murugan(appellant), who is his cousin

brother (his aunt's son) went to Geetha’s house and

invited Murugan(Geetha’s father) for a drink and

non-veg. dinner at his house. Murugan(Geetha’s

father) accepted the invitation and went along with

both of them to Kumar's house.

7. When Murugan(Geetha’s father) did not

return home, Geetha (PW-1) alone went to Kumar's

house at around 11 P.M. to find out as to why her

father has not returned so far and what was he

doing in Kumar's house for such a long time. On

reaching there, she, however, found that trio

(Kumar, Murugan and the appellant) were sitting in

the room on one iron cot and were dining together.

The trio told Geetha that her father - Murugan

would be coming shortly. Thereafter Geetha

returned to her house.

4

8.Since Murugan did not return home till next

day morning, Geetha (PW-1) and her mother Saroja

(PW-2) went early morning to Kumar's house to find

out why Murugan has not returned so far to his

house. The front door of the Kumar's house was

closed. Both of them, therefore, pushed the front

door and on opening, they found that Murugan's

dead body was lying in the room near iron cot with

many injuries on his body.

9.It is this incident which gave rise to filing of

FIR dated 02.12.2002 (Ex-P-18) by Geetha (PW-1) in

PS Jedarpalayam, which was registered as Crime

No. 224 of 2002 under Sections 302/364/34 of IPC.

The police then started investigation, visited the

house of Kumar, prepared Mahazar (Ex.P-13),

drawn rough sketch (Ex.P-19), took photographs,

prepared inquest report, recorded the statements of

witnesses, conducted post-mortem of the dead body

(Ex.P-4) and recovered the articles (M.O. 5 and 12 ).

5

10.The police then on 03.12.2002 arrested

Kumar, who confessed his guilt. His confessional

statement was accordingly recorded (Ex.P-15).

Thereafter the police recovered weapon used in the

crime (Aruval-MO-14) and the blood stained green

shirts at his instance from his father's house. It was

then followed by the appellant's arrest on the same

day.

11. The police, on completing the investigation,

filed the charge sheet against Kumar and the

appellant herein for commission of the offences

punishable under Sections 364 and 302/34 of IPC.

The case was then committed to the Additional

Sessions Judge, Namakkal for trial (Sessions Trial

No. 5/2006).

12.Before the trial could begin, the main accused-

Kumar died. The trial against him, therefore, stood

abated whereas it continued against the co-accused

6

–appellant herein. The appellant, however, abjured

the guilt.

13.In order to prove the charges, the prosecution

examined 12 witnesses, marked 20 exhibits and

produced 15 material objects. In the proceedings

under Section 313 of the Criminal Procedure Code,

1973 (hereinafter referred to as “the Code”), the

appellant was asked to explain the circumstances

appearing against him but he denied the charges

including the circumstances without offering any

explanation.

14. By order dated 02.08.2006, the Additional

Sessions Judge held the charges proved against the

appellant and accordingly convicted him for

commission of the offences punishable under

Sections 364 and 302 read with Section 34 of IPC

and awarded life imprisonment under Section 302

IPC and seven years under Section 364 and a fine

amount of Rs. 5,000/- and Rs.1000/- respectively.

7

15.The appellant felt aggrieved by his conviction

and the sentences awarded by the Additional

Sessions Judge and filed appeal in the High Court.

16.By impugned judgment, the High Court

dismissed the appeal and confirmed the judgment of

the Additional Sessions Judge, which has given rise

to filing of the appeal by way of special leave by the

accused –Murugan in this Court.

17.Heard Ms. Chitrangda Rastravara, learned

counsel for the appellant and Mr. M. Yogesh Kanna,

learned counsel for the respondent.

18.Having heard the learned counsel for the

parties and on perusal of the record of the case, we

find no merit in the appeal.

19. We have perused the evidence with a view to

find out whether the approach, reasoning and

conclusion arrived at by the two Courts below are

legally sustainable or not.

8

20.It is a settled principle of law that when the

Courts below have recorded concurrent findings

against the accused person which are based on due

appreciation of evidence, this Court under Article 136

of the Constitution of India would be slow to interfere

in such concurrent findings and would not appreciate

the evidence de novo unless it is prima facie shown

that both the Courts below did not either consider the

relevant piece of evidence or there exists any perversity

or/and absurdity in the findings recorded by both the

Courts below etc.

21.We, however, made endeavour to peruse the

evidence with a view to find out as to whether the

concurrent findings of both the Courts below have

any kind of infirmity or/and whether the concurrent

findings are capable of being legally and factually

sustainable or need to be reversed. Having gone

through the evidence, we are of the view that the

findings are legally and factually sustainable in law.

9

22.In our considered opinion, the two Courts

below have rightly held that the appellant's

conviction was based on circumstantial evidence

which, in this case, the prosecution was able to

prove it by adducing evidence. In other words, we

also find that the prosecution was able to prove the

chain of circumstances/events appearing against

the appellant without any break therein and hence

the appellant’s conviction deserves to be upheld.

23. On perusal of the evidence, we find that the

prosecution examined three witnesses (PW-1, PW-2

and PW-3) to prove material circumstances and the

chain of events against the appellant which first

included the motive behind the commission of the

crime followed by the manner in which the incident

took place leading to the death of Murugan.

24.The motive, according to the prosecution, was

that Kumar had a grudge against the deceased

because he was not agreeable to the Kumar's

10

proposal to marry his daughter-Geetha. This was

proved with the evidence of PWs-1, 2 and 3. It was

believed by the two Courts below and, in our

opinion, rightly.

25.The prosecution then proved that the appellant

along with Kumar had gone to the house of the

deceased for inviting him for dinner at Kumar's

house on the same night. The deceased accepted

the invitation and went to Kumar's house to have

dinner with Kumar and the appellant.

26.It was then proved that Geetha (PW-1) had

gone to Kumar's house at around 11 P.M. to see

why her father did not return to his house and on

reaching there, she found all the three sitting on

iron cot and were having dinner. As per post

mortem report, it was proved that Murugan died

between 11 P.M. and 12 P.M. the same night.

27.In our opinion, when the appellant was sitting

in the company of the deceased (Murugan) till 11

11

P.M. along with Kumar in his house and had dinner

with Murugan and Kumar and immediately

thereafter Murugan died, the appellant in

cross-examination of PWs-1,2 and 3 was not able to

elicit anything to discredit the evidence of the

abovesaid three witnesses and to disprove the

circumstances deposed against him.

28.That apart, in our opinion, it was necessary for

the appellant to have explained the aforementioned

circumstances appearing against him in the

proceedings under Section 313 of the Code. The

appellant, however, failed to explain any

circumstances and denied his involvement in the

crime.

29.We find from the evidence eight circumstances

appearing against the appellant. These

circumstances are: First motive was against the

deceased due to his not agreeing to the proposal of

marriage of Kumar with his daughter; Second, the

12

appellant and Kumar, both being the cousins, knew

each other very well; Third, both went together to

the house of the deceased to invite him for a dinner

at Kumar’s house; Fourth, all the three had dinner

together at Kumar’s house; Fifth, Murugan died

immediately after dinner; Sixth, Kumar gave his

confessional statement; Seventh, recovery of

weapon and cloths at the instance of Kumar; and

Eighth, the dead body was found lying near iron cot

where Murugan(deceased) had last dinner with

Kumar and the appellant.

30.In our view, the aforementioned eight

circumstances do constitute a chain of events

against the appellant and lead to draw a strong

conclusion against the appellant and Kumar for

having committed the murder of Murugan.

31.In our view, it clearly establishes that both

(Kumar and the appellant) had a common intention

to eliminate Murugan. In our view, there could be

13

no other person other than the appellant and

Kumar, who committed the crime in question.

32.A theory of "accused last seen in the

company of the deceased" is a strong

circumstance against the accused while

appreciating the circumstantial evidence. In such

cases, unless the accused is able to explain properly

the material circumstances appearing against him,

he can be held guilty for commission of offence for

which he is charged. In this case, it was rightly held

by the two Courts below against the appellant and

we find no good ground to disturb this finding.

33.We are not impressed by the submission of the

learned counsel for the appellant when she argued

that Kumar (main accused) having died without

facing the trial, the present appellant is entitled for

a clean acquittal because nothing now survives

against the appellant after Kumar's death for

14

appellant’s prosecution. We do not agree with this

submission.

34.In our view, death of Kumar was of no

significance so far as the appellant’s prosecution is

concerned. The reason being that this was a case of

common intention of the two accused persons to

eliminate Murugan and the appellant was one of the

accused persons, who was found actively

participating in the crime till last along with the

other accused, who died.

35.In our view, the two Courts below, therefore,

were right in holding the appellant guilty of

commission of the offences in question by properly

appreciating the ocular evidence of the prosecution

witness notwithstanding the death of the

co-accused, which was of no relevance for deciding

the involvement of the appellant in commission of

crime.

15

36.We, therefore, find no good ground to take a

different view than what is taken by the two Courts

below and concur with their reasoning and

conclusion with our additional reasoning elaborated

above.

37.The appeal is thus found to be devoid of any

merit. It fails and is accordingly dismissed.

………...................................J.

[R.K. AGRAWAL]

…...……..................................J.

[ABHAY MANOHAR SAPRE ]

New Delhi;

May 02, 2018

16