{"id":211575,"date":"2011-05-26T00:00:00","date_gmt":"2011-05-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/t-murugan-vs-state-on-26-may-2011"},"modified":"2017-10-04T02:54:06","modified_gmt":"2017-10-03T21:24:06","slug":"t-murugan-vs-state-on-26-may-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/t-murugan-vs-state-on-26-may-2011","title":{"rendered":"T. Murugan vs State on 26 May, 2011"},"content":{"rendered":"
Delhi High Court<\/div>\n
T. Murugan vs State on 26 May, 2011<\/div>\n
Author: S.Ravindra Bhat<\/div>\n
*           IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n                                                       RESERVED ON: 18.05.2011\n                                                    PRONOUNCED ON: 26.05.2011\n\n+              CRIMINAL APPEAL NOS.16\/1998, 107\/1998 & 187\/1998\n\n       CRL.A. 16\/1998\n\n       T. MURUGAN                                               ..... Appellant\n\n       CRL.A. 107\/1998\n\n       VEERAN                                                 ..... Appellant\n\n       CRL.A. 187\/1998\n\n       KARUPPAN                                                    ..... Appellant\n\n                                     versus\n\n       STATE                                                 ..... Respondent<\/pre>\n
       Appearance : Mr. Shamikh, Advocate for the appellant in Crl.A.Nos.16\/1998,
\n                    107\/1998.\n<\/p>\n
                    Mr. Manu Sharma, Amicus Curiae in Crl.A.No.187\/1998.\n<\/p>\n
                    Mr. Lovkesh Sawhney, APP for the State<\/p>\n
       CORAM:<\/p>\n
\n       MR. JUSTICE S. RAVINDRA BHAT\n       MR. JUSTICE G.P. MITTAL\n\n1.     Whether the Reporters of local papers      YES\n       may be allowed to see the judgment?\n\n2.     To be referred to Reporter or not?         YES\n\n3.     Whether the judgment should be             YES\n       reported in the Digest?\n\nMR. JUSTICE S.RAVINDRA BHAT\n%\n<\/pre>\n
1.     In these three appeals, a common judgment and order of the learned Additional
\nSessions Judge dated 10.07.1997 passed in Sessions Case No.27\/1996 has been challenged.\n<\/p>\n
2.     By the impugned judgment, all the appellants (hereafter referred to by their names,
\ni.e., Murugan, Veeran and Karuppan) were sentenced to undergo 7 years imprisonment for<\/p>\n
Crl.A. Nos.16, 107, 187\/1998                                                         Page 1
\n conspiracy to commit theft with fine and also undergo life imprisonment for the offence
\npunishable under Section-302, IPC.       All the appellants were originally charged with
\ncommitting offences under Section-120B\/380\/302\/34, IPC.\n<\/p>\n
3.     The prosecution’s case was that one N.R. Nagaratanam, a widower was living alone
\nin Janak Puri, in Flat No.B-38\/91-C, on the second floor. He had two sons, PW-7 & PW-8
\nwho were living outside Delhi. PW-7 was working in Bhopal and PW-8, in Bombay.
\nNagratnam (hereafter referred to as “the deceased”) had a tenant Sri Niwasan (PW-10); he
\nlived there with his brother. It is further alleged that on 27.07.1993, PW-10 went downstairs
\nand pressed the deceased’s door bell. On finding no response, he pushed the door; it opened.
\nPW-10 saw the dead body of the deceased lying on the floor in a pool of blood. He
\nimmediately rushed to the flat of PW-5, a neighbour who informed Police Station, Janak Puri.
\nThis was recorded as DD No.47-B. Immediately, PW-27, SI K.P. Singh rushed to the spot.
\nApart from noticing the body, he observed sharp weapon wounds on the deceased’s chest and
\na nylon rope tied around his neck. A lot of blood was found; some blood stained foot prints
\nwere also discovered. Some food was lying on the dining table and a chair had been
\noverturned. PW-27 prepared a rukka – Ex.PW-27\/B and sent it to Constable Desh Raj, PW-
\n13 for registration of FIR under Section-302 IPC; it was accordingly done. The FIR was
\nexhibited as Ex.PW-23A.\n<\/p>\n
4.     It is alleged that Inspector O.P. Yadav, SHO of the Police Station reached the spot
\nthereafter and lifted blood samples from the drawing room floor in the presence of PW-20. A
\nRudraksh Bead and Tabiz with black thread were found at the spot and were seized and
\nsealed after they were taken into possession by memo Ex.PW-20\/A. PW-16 was summoned;
\nhe took photographs which were later marked as PW-16\/B-1 to B-5. It is also alleged that
\nafter other formalities were completed, the deceased’s sons were informed. They arrived in
\nDelhi the next morning. They found that two golden rings, a gold chain and two wrist
\nwatches – one of Rolex make and other of Omax make (which belonged to their mother) was
\nmissing. The police was informed of these missing articles. It is alleged that the blood
\nstained foot prints were photographed by PW-22; they were produced during the trial as PW-
\n22\/A-1 and PW-22\/A-2.\n<\/p>\n
5.     The prosecution alleged that Marimma – one of the accused was engaged by the
\ndeceased as a maid w.e.f. 15.07.1993. She did not report for duty on 24th & 25th July, 1993.\n<\/p>\n
Crl.A. Nos.16, 107, 187\/1998                                                            Page 2
\n The deceased was murdered in the night of 27.07.1993. After the case was registered,
\nInspector Yadav made enquiries and found that PW-9, who was running a hotel in a jhuggi
\ncluster, in the vicinity of the deceased’s flat had allegedly over heard the appellants when
\nthey were sitting in Murugan’s jhuggi and planning to commit a theft in the deceased’s flat.
\nPW-9 also stated that appellants had disappeared from the jhuggi after the incident. The
\nprosecution further alleged that PW-6, step father of Murugan was contacted.              PW-6
\nallegedly informed the police that Murugan had confessed about the murder of the deceased.
\nThe police party left for Dindigul, Tamilnadu on 29.07.1993. They were accompanied by
\nPW-6. On 02.08.1993, Karuppan was arrested in Malai Kottai. He was wearing an Omax
\nwrist watch which was seized and sealed by Memo Ex.PW-24\/C. Karuppan was later
\nproduced and transit remand was obtained from the concerned Court. It is alleged that on
\n04.08.1993 accused Marimma was arrested from her father’s house at R. Puddu Kottai.
\nSubsequently, Marimma and Karuppan were brought to Delhi.\n<\/p>\n
6.     The prosecution alleged that on 17.09.1993, a police team was again sent to Tamil
\nNadu under PW-26. On 21.09.1993, Murugan was arrested from the house of his father-in-
\nlaw and the Rolex watch which he was wearing was seized and kept under seal by memo
\nEx.PW-2\/B.     Murugan made a disclosure statement Ex.PW-2\/A and led the police to
\nRamnath Puram where Veeran used to live. Veeran was wearing a gold chain which was
\nseized. He made a disclosure statement Ex.PW-2\/C, further to which, two stolen gold rings,
\nhidden in his house were seized and taken into possession. The prosecution alleged that
\nspecimen foot prints of all the three accused were taken after their arrest. The foot prints and
\nnegatives of the chance foot prints found at the spot were sent to the Finger Prints Bureau,
\nJaipur. PW-14 Iqbal Ahmed prepared an enlarged photograph of the chance footprint and
\ncompared it with the specimen footprint of the three accused. His opinion was that the
\nchance footprints matched with that of the appellant Karuppan.\n<\/p>\n
7.     After considering the materials on record and the depositions of the witnesses, the
\nTrial Court held the appellants guilty. Marimma, fourth accused was convicted with the
\ncharge of committing offence under Section-380 IPC; she had undergone five years detention
\nas an under trial. The Court deemed it appropriate to confine the sentence to the period
\nundergone. Feeling aggrieved, the appellants have challenged the findings of the Trial Court
\nin these three appeals.\n<\/p>\n
Crl.A. Nos.16, 107, 187\/1998                                                             Page 3\n<\/p>\n
 8.     Learned counsel for the appellants submits that Sri Niwasan – PW-10 was the only
\nwitness who saw the deceased and that too after his murder. There was no eye witness to the
\nattack or the alleged robbery. It is argued that PW-6 was an eye witness to the alleged extra
\njudicial confession by Murugan. However, he did not support the prosecution’s version at all
\nand turned hostile. It is pointed out that even though, he is Murugan’s step father, he could
\nnot identify him in the Court. Learned counsel submitted that similarly PW-9 had also turned
\nhostile even though the prosecution had heavily relied upon his evidence.\n<\/p>\n
9.     Learned counsel submitted that Marimma was arrested on 04.08.1993 in Tamil Nadu
\nand that Karuppan was arrested on 02.08.1993 when a wrist watch was allegedly recovered.
\nIt is submitted that even though the police witnesses mentioned about Marimma’s arrest and
\nalso having seen Murugan, a fantastic theory that the latter (Murugan) escaped that day, was
\ngiven. Arguing further it was stated that Murugan was later arrested on 21.09.1993 and a
\nRolex watch was allegedly recovered from him. Similarly, Veeran was arrested at the behest
\nof Murugan on 21.09.1993. He was allegedly wearing a gold chain (seized by memo Ex.PW-
\n2\/D). His disclosure allegedly led to the recovery of the two gold rings. Counsel submitted
\nthat it is unbelievable that if the motive for the attack and murder of the deceased was
\nrobbery, the culprits would be openly flaunting the stolen articles and that too, valuable ones
\nsuch as a Rolex watch and wearing a gold chain which belonged to the deceased. This
\ncircumstance falsifies the prosecution’s case about recovery and arrest of Murugan and
\nVeeran. Learned counsel further submitted that the prosecution delayed identification of the
\nstolen articles and got the Test Identification Parade (TIP) done only on 21.10.1993.\n<\/p>\n
10.    It was argued that the Trial Court found the appellants Veeran and Murugan guilty
\nonly on the basis of recovery of Articles stolen two months before their arrest. It was
\nsubmitted that there was no material on the record to show that the said two appellants were
\nliving in Delhi and had absconded or gone missing as held by the Trial Court. Learned<\/p>\n
counsel submitted that even Marimma was arrested on 04.8.1993 in Tamil Nadu. Apart from
\nproving that Marimma had been engaged by the deceased to work as a maid shortly before
\nhis death, none of the prosecution witnesses nor any materials established that Veeran and
\nMurugan ever resided in Delhi or that they had run away; as was held.                   In these
\ncircumstances, the so called recovery of articles from their possession two months after the
\nincident and also alleged identification in a TIP conducted on 21.10.1993, i.e., nearly three<\/p>\n
Crl.A. Nos.16, 107, 187\/1998                                                              Page 4
\n months after the incident, formed the sole basis for the conviction under Sections
\n302\/120B\/34 IPC. It was argued that recovery of articles by itself cannot be a circumstance
\njustifying conviction and that by proceeding to do so, on an application of presumption under
\nSection 114 (a) of the Evidence Act, the Trial Court fell into error.\n<\/p>\n
11.    Learned counsel for the appellant Karuppan, Mr. Manu Sharma argued that even
\nthough Karuppan was allegedly arrested on 02.08.1993, there was no reason why he ought to
\nhave been in possession of Omax wrist watch as was alleged and found against him. The
\nsheer improbability of a criminal successfully stealing the valuables from the deceased
\nperson’s premises and flaunting it openly itself undermines the prosecution’s story. It was
\nfurther argued that the other vital circumstance relied upon by the Trial Court to convict
\nKaruppan was the alleged chance footprint found in the premises. In this regard, it was
\nemphasized that the photograph of the said chance footprints though allegedly taken by PW-
\n22 was not deposited in the Malkhana till 07.09.1993 when the negatives were deposited. It
\nwas submitted that PW-22 as well as the police witnesses PW-24 & 26 had deposed that the
\nphotographs were taken on 28.07.1993. The prints and negatives therefore, were always in
\nthe possession of the police as also the specimen prints which were taken at the time of the
\narrest – Ex.PW-14\/B1 to PW-14\/B-4. In other words, submitted the learned counsel, the most
\ndamaging piece of evidence implicating Karuppan was in the form of the photograph of a
\nchance footprint. The prints of the photographs and negatives continued to be in the
\npossession of the police even on the date when the alleged specimen footprints were taken
\nafter the arrest of Karuppan.     In these circumstances, there was a strong possibility of
\nmanipulation and planting of evidence.\n<\/p>\n
12.    Elaborating on this aspect, it was argued next that there is no evidence on the point
\nthat the footprints of other accused\/appellants were ever taken when they were arrested. The
\ndepositions of PW-3 & 4 are relied upon to say that they had arrested the accused but were
\nsilent on this aspect. As far as the appellant Karuppan’s print is concerned, though PW-26
\nsays that the prints were taken at P.S. Janak Puri by PW-24 O.P. Yadav, the latter does not
\ncorroborate this version. The other circumstance characterized suspicious by learned counsel
\nwas that PW-14’s deposition that the forwarding letter – seeking opinion on the footprints –
\nwas signed by the DCP and dated 21.09.1993. This conflicted with the version of the SI K.P.
\nSingh PW-27, who stated that all prints were taken on 29.9.1993. Learned counsel also relied
\nupon the copy of the forwarding letter which referred to the DCP’s letter enclosing the<\/p>\n
Crl.A. Nos.16, 107, 187\/1998                                                              Page 5
\n specimen footprints of all the three accused dated 21.09.1993. It was submitted that this was
\nimpossible because Murugan and Veeran were arrested in Tamil Nadu on 21.09.1993 and the
\nletter enclosing their specimen footprints could never have been possibly referred for opinion
\nthe same day. It was argued that the witness PW-14 who mentioned that the specimen
\nfootprint tallied with that of the chance footprints could not be believed for more than one
\nreason. In this regard, it was pointed out that the opinion PW-14\/A merely lists out the
\nphysical features of the foot and fingers without detailing the distinctive and unique prints
\nobserved from the specimen forwarded for opinion.          Learned counsel relied upon the
\njudgment reported as Mahmood v. State of Uttar Pradesh, 1976 (1) SCC 542 and Roop Singh
\nv. State of Punjab, 2008 (11) SCC 79, to say that the Courts cannot rely upon experts’
\nopinion to convict an accused when other evidence does not support the prosecution version.\n<\/p>\n
13.    Mr. Sawhney, the learned APP, argued that the Trial Court’s judgment does not call
\nfor any interference. It was submitted that the relatives of the deceased, i.e. his sons PW-7
\nand PW-8, were immediately informed about the tragedy, and reached Delhi on 28.07.1993.
\nThey were able to give information about the articles that were missing from the premises.
\nOn this basis, and the information the police was able to garner during the investigation, a
\nsearch was undertaken in Tamil Nadu; Karuppan was arrested on 02.08.1993; recovery of a
\nRolex watch was made. Later, Mairamma was arrested. Subsequently, on 21.09.1993, the
\nother two accused were arrested, and the stolen articles were recovered either in their
\npossession, or after they made disclosure statements. All these were integrally connected with
\nthe incident, whereby the deceased was looted and killed. The accused were under a duty to
\nexplain their role and more crucially how they came into possession of the stolen articles.
\nNeither did they offer any explanation in the statements made under Section 313 Cr. PC, nor
\ndid they lead any evidence in this regard. In these circumstances, the findings of their
\ncomplicity and their conviction for the offences they were charged with, was justified.\n<\/p>\n
14.    The learned APP next argued that the ratio of the decision reported as
\nEarabhadrappa v. State of Karnataka, (1983) 2 SCC 330 supports the Trial Court’s findings,
\ninasmuch as the Appellants’ inability to discharge the presumption arising under Section 114
\nIllustration (a), of the Evidence Act, justified their conviction. In that case, the Supreme
\nCourt held as follows:\n<\/p>\n
       “This is a case where murder and robbery are proved to have been integral
\n       parts of one and the same transaction and therefore the presumption arising
\n       under Illustration (a) to Section 114 of the Evidence Act is that not only the<\/p>\n
Crl.A. Nos.16, 107, 187\/1998                                                              Page 6
\n           appellant committed the murder of the deceased but also committed robbery
\n          of her gold ornaments which form part of the same transaction. The
\n          prosecution has led sufficient evidence to connect the appellant with the
\n          commission of the crime. The sudden disappearance of the appellant from the
\n          house of PW 3 on the morning of March 22, 1979 when it was discovered that
\n          the deceased had been strangulated to death and relieved of her gold
\n          ornaments, coupled with the circumstance that he was absconding for a
\n          period of over one year till he was apprehended by PW 26 at village
\n          Hosahally on March 29, 1980, taken with the circumstance that he made the
\n          statement Ex. P-35 immediately upon his arrest leading to the discovery of the
\n          stolen articles, must necessarily raise the inference that the appellant alone
\n          and no one else was guilty of having committed the murder of the deceased
\n          and robbery of her gold ornaments. The appellant had no satisfactory
\n          explanation to offer for his possession of the stolen property. On the contrary,
\n          he denied that the stolen property was recovered from him. The false denial by
\n          itself is an incriminating circumstance. The nature of presumption under
\n          Illustration (a) to Section 114 must depend upon the nature of the evidence
\n          adduced. No fixed time limit can be laid down to determine whether
\n          possession is recent or otherwise and each case must be judged on its own
\n          facts. The question as to what amounts to recent possession sufficient to justify
\n          the presumption of guilt varies according as the stolen article is or is not
\n          calculated to pass readily from hand to hand. If the stolen articles were such
\n          as were not likely to pass readily from hand to hand, the period of one year
\n          that elapsed cannot be said to be too long particularly when the appellant had
\n          been absconding during that period. There was no lapse of time between the
\n          date of his arrest and the recovery of the stolen property.”\n<\/p><\/blockquote>\n
15.       It was urged further that the possession of stolen property was proved by the
\nprosecution, to have been with the accused. Therefore, by operation of Section 106, the
\nburden of showing how they came by such possession, was upon them. The theft of stolen
\narticles was also integrally connected with the homicidal assault on the deceased. In these
\ncircumstances, the Trial Court did not commit any error in holding that the Appellants were
\nguilty.\n<\/p>\n
16.       The learned APP also submitted that Karuppan was arrested on 02.08.1993. His
\nfootprint specimen were obtained or secured the same day by PW-24, who deposed about that
\nfact. PW-26 also signed on that paper. The other accused (Murugan and Veeran) were
\narrested later, on 21.09.1993. It was submitted that there was no improbability in the letter
\nreferring the prints for expert opinion, since the forwarding letter appeared to have been
\nprepared earlier. It was submitted that the exhibit relied on by the Appellants, to claim that
\nthe opinion was un-reliable, itself does not bear any date. Learned counsel stated that prints
\nwere taken to Jaipur on 29.09.1993. This question was also put to the accused, under Section<\/p>\n
Crl.A. Nos.16, 107, 187\/1998                                                                  Page 7
\n 313, Cr. PC. He further emphasized that the witness was not in fact cross examined on behalf
\nof the Appellant, when he deposed having taken the prints for opinion. The learned APP
\nsubmitted that besides Karuppan being arrested the earliest in point of time, in the case, the
\nopinion relied on cannot be discarded, because it showed that both the specimen print and the
\nchance print (recovered from the site) bore the identical mark of scar of a healed wound. In
\nthese circumstances, the prosecution proved the complicity and role of Karuppan, in the
\noffence punishable under Section 302, IPC.\n<\/p>\n
17.    The above discussion would show that the prosecution had primarily relied on the
\ndepositions of PW-6 and PW-9. One of them had allegedly been witness to a confession by
\nMurugan. However, both the witnesses turned hostile. PW-6, the stepfather of Murugan,
\n(who had heard the confessional statement) deposed that he could not recognize the said
\naccused, in court. Both these witnesses, as indeed PW-10 could not say that the three
\nAppellants were in Delhi, or that they had been seen by them. PW-10 deposed that the
\ndeceased had engaged Mariamma a few days before he was assaulted and killed. In these
\ncircumstances, the Appellant’s argument about the Trial Court’s finding regarding their
\nhaving absconded from Delhi assumes significance. Beyond establishing that Mariamma was
\nemployed by the deceased shortly before his death, and that she vanished from the scene a
\ncouple of days previous to the incident, the prosecution has not led any evidence to show that
\nthe Appellants, particularly Veeran and Murugan were living in the jhuggi cluster (where
\nMariyamma lived) and that they fled from there, around the time she did, or at the same time.
\nThe prosecution had no doubt relied on the testimonies of PW-6 and PW-9; however, they
\nturned hostile. In the circumstances, the inference drawn by the Trial Court, was based purely
\non the assumption of the said accused having vanished from the scene.\n<\/p>\n
18.    Now, this court is conscious of the fact that Earabhadrappa (supra) is to the effect
\nthat Section 114 illustration (a) can be pressed home under certain circumstances, and the
\ntime lag between the incident and the recovery from the accused is short or long, depending
\non the facts of the case. At the same time, what has to be remembered is that the said decision
\nwas also rendered in a case involving circumstantial evidence, where each link to the
\ncircumstances, as well as the link itself, has to be proved beyond reasonable doubt. In this
\ncase, beyond proving that the articles recovered from Murugan and Veeran belonged to the
\ndeceased (since PW-7 and PW-8, his sons had described it in their statements) the
\nprosecution has not established even remotely the presence of those accused. In this state of
\nfacts, the other vital links in the chain pointing to the certainty of the accused’s guilt, and
\nruling out every hypothesis of their innocence are missing. (That is the standard applicable<\/p>\n
Crl.A. Nos.16, 107, 187\/1998                                                            Page 8
\n for cases involving circumstantial evidence; Ref. Hanumant Govind Nargundkar & Anr. v.
\nState of Madhya Pradesh, AIR<\/a> 1952 SC 343; Sharad Birdhichand Sarda v. State of
\nMaharashtra,<\/a> (1984) 4 SCC 116; and Ashish Batham v. State of Madhya Pradesh,<\/a> 2002 (7)
\nSCC 317). Having regard to these facts this court is of the opinion that the conviction of the
\nAppellants Murugan and Veeran, for the offence under Section 302\/34 IPC, is not warranted.
\nEqually, there is no proof that they were involved in commission of the offence punishable
\nunder Section 380. Their possession of the stolen property, however, was established during
\nthe trial. In the circumstances, their conviction has to be under Section 411, IPC, since they
\nhave offered no explanation whatsoever regarding the possession of such property.\n<\/p>\n
19.      So far as Karuppan is concerned, in addition to the recovery of an Omax wrist watch,
\nthe damaging circumstance is the footprint. The opinion of the expert PW-14 here becomes
\ncrucial. The witness, in his report, mentions the features and physical characteristics of the
\ntwo specimens, given to him, on comparison (i.e. the specimen footprints of Karuppan and
\nthe magnified photograph of the bloodstained foot print, recovered from the spot). However,
\nthis expert curiously, does not mention the distinctive or unique print patterns discerned from
\nthe two footprints. He however, states, in the opinion that the specimen contains
\n         “a scar or wound mark which is also visible in chance foot print photograph at
\n         the same relative position, the difference shown with green dotted line is due to
\n         photography as Camera was not placed at right angle while taking photograph.”\n<\/p>\n
In this context, it would be relevant to notice the observations of the Supreme Court on expert
\nevidence, in its judgment reported as Mahmood v. State of U.P.,<\/a> (1976) 1 SCC 542, where it
\nwas said that:\n<\/p>\n
             “Lastly, it may be observed that Inspector Daryao Singh, PW 15, has not
\n         given any reasons in support of his opinion. Nor has it been shown that he has
\n         acquired special skill, knowledge and experience in the science of
\n         identification of fingerprints. It would be highly unsafe to convict one on a
\n         capital charge without any independent corroboration, solely on the bald and
\n         dogmatic opinion of such a person, even if such opinion is assumed to be
\n         admissible under Section 45 Evidence Act.”\n<\/p><\/blockquote>\n
In a more recent decision, Roop Singh v. State of Punjab,(2008) 11 SCC 79, the Court,
\nspeaking about the value of expert evidence, held that:\n<\/p>\n
          “8. On completion of the investigation, charge-sheet was filed and since the
\n      accused persons abjured guilt, they faced trial. The trial court, as noted above,
\n      directed conviction and imposed sentence. According to the trial court the case
\n      rested on circumstantial evidence and four factors weighed with the trial court to
\n      record conviction. They were: (a) finding of the left footprint of the appellant on<\/p>\n
Crl.A. Nos.16, 107, 187\/1998                                                                Page 9
\n       the spot of occurrence, (b) fingerprint on the bottle of liquor which was found
\n      near the place of occurrence matched with the right index finger of the appellant,\n<\/p><\/blockquote>\n
      (c) there was extra-judicial confession before PWs 2 and 4, and (d) evidence of
\n      Wazir Singh (PW 3) having seen all the three accused persons together.\n<\/p><\/blockquote>\n
          9. The High Court did not accept the conclusions of the trial court relating to
\n      the relevance of the evidence of PWs 2 and 3. The High Court found that the same
\n      was not credible and cogent. However, relying on the other two circumstances,
\n      the High Court upheld the conviction of the appellant while directing acquittal of
\n      the co-accused persons. The High Court noted that the chain of the circumstances
\n      was not complete so far as PWs 2 and 3 are concerned, but it is complete so far
\n      as the present appellant is concerned.\n<\/p><\/blockquote>\n
      xxxxxxxxxxxxxxxxxxxxxx                           xxxxxxxxxxxxxxxxxxx<\/p>\n<\/blockquote>\n
          13. As rightly contended by the learned counsel for the appellant that the two
\n      circumstances highlighted by the High Court while upholding the conviction of
\n      the appellant do not present a complete chain of circumstances which ruled out
\n      the possibility of any other person being the assailant and\/or           unerringly
\n      points to the appellant-accused as being guilty of the charged offences. There was
\n      no evidence led by the prosecution to show that the prints in question came into
\n      existence at the time the alleged incident took place.”\n<\/p><\/blockquote>\n
20.      It would therefore, be clear that expert opinion has to be unambiguous, and inspire
\nconfidence in the court. Apart from the lack of certain crucial details about the unique
\nfeatures in the two footprints, there is another significant aspect which the court has to
\ncarefully consider on this aspect. It is that concededly negatives of the photographs (of the
\nfootprints) were not deposited in the malkhana, till after the arrest of the Appellant
\nKaruppan, and after specimen footprint samples were obtained from him. This, in this court’s
\nopinion is a serious infirmity in the prosecution case, because in a circumstantial evidence
\nbased case – such as the present one, – where the incident was not witnessed by anyone, and
\nwhere there is no “last seen” evidence, the court has to be doubly sure that there is no missing
\nlink in the chain (of circumstances) which has not been proved beyond reasonable doubt. The
\nprosecution was unable to furnish any explanation why the negatives of the photographs of
\nthe footprints were deposited later, much after Karuppan’s arrest, and admittedly after his
\nspecimen footprint had been taken.\n<\/p>\n
21.      The approach of the Trial Court, discernable in the last part of its judgment, was to
\ndraw inferences based on the disclosure statements made by various accused, and the
\nrecoveries (of stolen articles) made by the police, pursuant to their search, or discovery
\nstatement. While that approach is unexceptionable in relation to the offence punishable under
\nSection 414, there had to be something more to link the recoveries – even of articles<\/p>\n
Crl.A. Nos.16, 107, 187\/1998                                                                Page 10
\n admittedly belonging to the deceased- with the accused, especially since this is a
\ncircumstantial evidence based prosecution. It would be apt, at this stage, to remember that
\nSection 106 of the Evidence Act comes into play after the necessary ingredients for the
\noffence an accused is charged with, are proved beyond reasonable doubt. On this score, the
\nSupreme Court had remarked, in P.N. Krishna Lal v. Govt. of Kerala, 1995 Supp (2) SCC
\n187 that:\n<\/p>\n
       “It is thus settled law even under general criminal jurisprudence that Sections
\n       105 and 106 of the Evidence Act place a part of the burden of proof on the
\n       accused to prove facts which are within his knowledge. When the prosecution
\n       establishes the ingredients of the offence charged, the burden shifts on to the
\n       accused to prove certain facts within his knowledge or exceptions to which he
\n       is entitled to. Based upon the language in the statute the burden of proof
\n       varies. However, the test of proof of preponderance of probabilities is the
\n       extended criminal jurisprudence and the burden of proof is not as heavy as on
\n       the prosecution. Once the accused succeeds in showing, by preponderance of
\n       probabilities that there is reasonable doubt in his favour, the burden shifts
\n       again on to the prosecution to prove the case against the accused beyond
\n       reasonable doubt, if the accused has to be convicted. From this conceptual
\n       criminal jurisprudence, question emerges whether sub-section (5) placing the
\n       burden on the accused of the facts stated therein would offend Articles 20(3),
\n       21 and 14 of the Constitution.”\n<\/p><\/blockquote>\n
It is also an established proposition of law that mere recovery of stolen or other articles,
\nalleged to be linked with the incident, without any evidence of their link with the accused, is
\nnot sufficient for the court to convict them (Ref Sanwat Khan v. State of Rajasthan, AIR<\/a>
\n1956 SC 54; Kagen Bera v State of WB AIR 1994 SC 1511; Mohd. Aman v State of
\nRajasthan 1997 (10) SCC 44). In Sanwat Khan, the Supreme Court held that:\n<\/p>\n
               “Where, however, the only evidence against an accused person is the
\n               recovery of stolen property and although the circumstances may
\n               indicate that the theft and the murder must have been committed at the
\n               same time, it is not safe to draw the inference that the person in
\n               possession of the stolen property was the murderer. Suspicion cannot
\n               take the place of proof.”\n<\/p><\/blockquote>\n
22.    In view of the above discussion this court is of the opinion that the only circumstance
\nwhich could have distinguished the case of Karuppan from the other appellants was the
\nfootprint at the spot, or place where the incident occurred. In view of the unreliability of the
\nexpert evidence on that aspect, and other circumstances surrounding it, the court is of opinion
\nthat the Trial Court erred in accepting the expert opinion uncritically; it had to be discarded.
\nSuch being the case, the only incriminating piece of evidence against him (Karuppan) was the<\/p>\n
Crl.A. Nos.16, 107, 187\/1998                                                             Page 11
\n recovery of a stolen article. Here too, the conviction had to be under Section 411, IPC.\n<\/p>\n
23.    For the foregoing reasons, the Appeals have to succeed partly. All the appellants have
\nundergone imprisonment for more than seven years. In view of the findings recorded in the
\nprevious portions of this judgment, their convictions are substituted to one under Section 411,
\nIPC. They have already undergone more than the period of imprisonment prescribed. The
\nsurety and bail bonds furnished by them are accordingly discharged. These Appeals, are
\naccordingly allowed.\n<\/p>\n
                                                             S. RAVINDRA BHAT
\n                                                                      (JUDGE)<\/p>\n
                                                                      G.P.MITTAL
\n                                                                         (JUDGE)
\nMay 26, 2011<\/p>\n
Crl.A. Nos.16, 107, 187\/1998                                                           Page 12\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court T. Murugan vs State on 26 May, 2011 Author: S.Ravindra Bhat * IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON: 18.05.2011 PRONOUNCED ON: 26.05.2011 + CRIMINAL APPEAL NOS.16\/1998, 107\/1998 & 187\/1998 CRL.A. 16\/1998 T. MURUGAN ….. Appellant CRL.A. 107\/1998 VEERAN ….. Appellant CRL.A. 187\/1998 KARUPPAN ….. Appellant versus STATE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-211575","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nT. 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