Holding

The prosecution failed to establish the charge beyond reasonable doubt, and the convictions under Section 302 r/w Section 34 IPC were set aside.

Summary

The appellants Ashraf and Afras were convicted for murder under Section 302 read with Section 34 of the IPC based primarily on the testimony of PW1, who claimed to have seen the accused stabbing the victim. The Supreme Court noted serious contradictions between the statements of PW4 (police constable), PW17 (investigating officer), and documentary evidence that described the body as unidentified, raising doubts about the prosecution's version. An unexplained 15‑hour delay between the lodging of the FIR and the receipt of the special report further undermined the reliability of the evidence. The Court held that these inconsistencies created reasonable doubt and that the prosecution failed to prove the charge beyond reasonable doubt. Consequently, the convictions were set aside and the appellants were acquitted.

Issues considered

Whether the testimony of PW1 is reliable enough to sustain a conviction under Section 302 read with Section 34 of the IPC.
Whether contradictions between witness statements and documentary evidence create reasonable doubt.
Whether the unexplained delay in the special report affects the prosecution's case.
Whether the mode of investigation (identified vs unidentified body) impacts the credibility of the police version.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 313
Indian Penal Code, 1860s. 302, s. 34

Subjects

murderIPC Section 302IPC Section 34witness credibilitydelay in evidenceidentificationacquittalcriminal appeal

Judgment

- [2008] 16 S.C.R. 560

A N.H. MUHAMMED AFRAS
v.
STATE OF KERALA
(Criminal Appeal No. 1234 of 2006)

NOVEMBER 25, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM +
SHARMA, JJ.]

Penal Code, 1860 - s.302 rlw s.34 - Conviction of
C accused, by courts below - Held: On facts, there· was marked
contradiction between statement of witnesses and documents
- Also there was unexplained delay between the time the FIR
was lodged and the time special report reached the Court -
Prosecution failed to establish the accusations ,..... Conviction
o set aside.
Investigation - Mode of - When unidentified body is
brought to the hospital and when a known person's body is
brought - Held: Mode of investigation is different in the two
situations.
E
According to the prosecution, the victim was stabbed
to death by three accused. PW1 allegedly witnessed the
incident in the headlight of his scooter. Two of the
accused were convicted by the trial court under s.302 r/
F w s.34 IPC. The appeals filed by the convicts were
dismissed by the High Court.
In the instant appeal, the appellants challenged their
conviction contending that the evidence of PW1 was not
G acceptable and that there was unexplained delay of 15
hours between the time the FIR w~s lodged and the time
the special report reached the Court. -

Allowing the appeals, the Court

H 560
N.H. MUHAMMED AFRAS v. STATE OF KERALA 561

HELD: 1.1. There are sever~I factors which corrode A
the credibility of the prosec"tion v.ersion. Firstly, the
combined effect of the .~vidence of PW 4, (police
constable) Ext.C1 and the e.vidence of .P.W17
(Investigating Offi!=~r) and PWs.1 and 3 is that there ,is
marked contradiction b.etween the statements .of the B 1

witnesses and the documents. If in Ext. C1 it was stated
that an unidentified body was brought to the hospital, it
is not explained as to how and why PW 4 did not tell the
doctor that the identity was known. The modes of
investigation of the police would be in different directions c
if an unidentified body is brought and when a known ·
person's body is brought. It is strange that PW 4 who is
supposed to have known the name of the deceased from
PWs 1 and 3 chose not to tell the name of the deceased
to the Doctor. Further PW 17's statement is full of 0
contradictions. Initially he denied to have received
Exh.C1, but later on he accepted to have received the 1

> same. Even thereafter he did not offer any explanation as
to how and why it was stated in the Doctor's intimation ·
that an unidentified body was brought. This could have E
been clarified had the doctor been examined. For reasons
known to the prosecution, he was not examined as a
witness. [Para 5) [565-B-F]
1.2. Though the High Court noted that there was no
dispute that the FIR was lodged at 10.45 PM, that is F
factually incorrect. In fact from the very beginning the
accused persons have been taking the stand that the FIR
was not lodged at 10.45 PM as claimed, otherwise special
report would not have reached the Court which is·
situated at a distance of 250 yards after about 15 hours. G
No explanation has been offered as to why this delay had
occurred. Had any explanation been offered by the
prosecution the Court could have considered
acceptability or otherwise of the explanation. That has not
been done. Though ignorance of PW1- about the scooter H
562 SUPREME COURT REPORTS [2008] 16 S.C.R.

· A number, model and other relevant factors may not in all
·cases· ·be suspicious circumstance,. but iri·the present
·case this· assumes·' importance.· Hence, the inevitable
conclusion is that prosecution has faiied-to establish the
accusations, and appellants are' entitled tcvacquittal.
'B [Paras 5' and 6] ·[56S-F-H; 566-A~B] . ' ' ' .' '

· CRIMINAL APPELLATE JURISDICTION : Criminal Appeal f
No. 1234- of 2006 ...
0

;. ' '

_From the Judgment and Order dated 4.4.2006 of the. High
C Cpurt of Kerala at Ernakulam in Crl. A No. 413 of 2006.

M. Karpaga Vinayagam, K.P. Kylasanatha Pillay, Ch. Leela
SarVeswar, A Venayagam Balan and G. Ramakrishna Pra·s_ad
_for the Appellant. .· ·· ' ·· · · ..
D . R. Sathish and George K. Jose for the Respondent.
The J_udgment of the Court was delivered by

DR. ARIJIT PASAYAT, J.' 1.'Challenge in these appeals
E is to the judgm_ent of a Division Bench of the Kerala High ·court
dispo-sing of two separate appeals by a common order. The
two appeals were filed by the present appella~ts who fa.ced trial
for commission of offence punishable under Section 302 read
with Section 34 of'the Indian Penal Code, 1860 (iri short the
F 'IPC'): They were found guilty and convicted-by learned
Sessions Judge Kasaragod.

. 2 .. Background facts in a nutshell are as follows: ,
. Babu (PW 1) on 3.9.1996 at about 9.30 pm (;losedhis
G BaRery shop:arid proceeded towards his house in his scooter.
When he reached near B.Ed Centre, Nellikkunnu, he saw a
person. lyillg on. the roa~ a,n·d three persons w~re standing near *~
him and among the-three'per~9.ns, two persons, namely Ashraf
(A1) & Afras (A2)', 'stabbe9 the person ly!ng o·n Jhe road with
H knife. He saw .the incident with the help of the' H~a·d t.ighf 6f
.
' N.H. MUHAMMED AFRAS v. STATE OF KERALA ·563
[DR ARIJIT PASAYAT, J.]
his scooter. He was able to identify that the persons were Ashraf A
(Al) & Afras (A2). When they saw PW 1, they·ran away from
.. the place of occurrence . Immediately he went bthe shop of
Ganghadharan, PW3, aJocal councillor and informed this to him.
Both of them came to the scene of occurrence. PW3 was able
to identify the person lying and told PW1 that he was one B
JayachaQdran known to him. Since. the police picket was
t posted near the place of occurrence, as there were frequent
~
.• communal clashes, PW3 went to the police picket post and
informed them of the incident and then PW4 the polic.e officer
and others came to the scene of incident and took the injured c
to the Kasargod TallJk Hospital along with PW3. The·Ooctor at
the hospital examined the injured and declared him .dead;
Thereafter, PW1 went to the Kasargod Police Station and
lodged the complaint Ex.Pl. A case was registered by Inspector
of Police (PW17) as Crime No.606 of 1996 for offence under
D
Section 302 read with Section 34 IPC at 10.45 pm on 3.9.1996
, against two known (Al & A2) and one unknown person, On
'I . 4.9.1996, PW17 conducted inquest and· prepared inquest
report (Ex.P13). On 4.9.1996 doctor (PW15) conducted post
mortem and issued postmortem certificate Ex.P9. On
12.9.1996 A1 & A2 were arrested by PW 17. M.O. 1 knife was E
recovered from A 1. After completion of investigation charge
" was filed on 7.4.1997 for the offence under Section 302
sheet
read with Section 34 IPC against both the accused. On behalf
of the prosecution PWs 1 to 17 were examined Ex.P 1 to P16
were marked. The accused were questioned under Section F
313 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C:').
They denied the allegations. On.their behalf DW1, the SHO was
examined ana Ex.01 and Ex.04 were marked. Cl Court Exhibit
was also ·marked.
G
After completion of investigation, charge sheet was filed.
~
.... As the accused persons pleaded innocence, trial was held. As
noted above, the prosecution based its version primarily rested
on the evidence of Babu-PW1. The appellants highlighted
before the trial court that the evidence of PW1 is not believable. H
~-

,-

564 SUPREME COURT REPORTS [2008] 16 S.C.R. ~

l

A It is highly improbable that he would identify two persons in the r- •·'
light of the scooter with whom he was not acquainted. If the
}----
names of the accused persons were known to the witnesses, .
more particularly, the police constable who is supposed to have
accompanied the deceased, he would have certainly not stated .'
~

B that the deceased ·had suffered injuries at the hands of }-
unidentified persons. There was considerable unexplained
delay in dispatch of the special report. The distance from the i
)=
police station to the Court is hardly 250 yards but the report t:
was received after more than 24 hours after the FIR was
c purportedly lodged. The trial court referred to all the aspects to
hold that they were all of no substance. In appeal the stand was
reiterated but the High Court by the impugned judgment rejected
the same.

3. In support ofthe appeal learned counsel for the appellant k
D submitted that the fate of the case depends only on the •
acceptability of PW1 's evidence. It is stated that according to t-.
the prosecution, the earliest document is Ex. P1. The complaint .. ,___
r-
is stated to have been given by PW 1. As per Exh. P1
Jayachandran was stabbed to death by Ashraf and another
E man. In his statement under Section 161 Cr.P.C. which was
referred to bring out the contradictions, it was stated that two
persons were standing near the person who was lying on the
road and were stabbing him and they were A 1 & A2. He
admitted to have stated earlier that he had actually seen two
F persons. In his evidence in court he stated that he had seen
-t
three persons· assaulting the person lying on the road and it was
A 1 who stabbed the victim and A2 who beat with stick. The trial
court disbelieved PW 1's evidence with reference to the role
of A2 beating the deceased and the witness with the stick. PW
G 17 the investigating Officer initially denied to have seen the
intimation ofthe doctor (Ex. C1), but later on admitted that he
had received it. He also accepted that in the said Exh. C1 it _,.. .:.....

was clearly stated that -at 10 PM an unidentified body was
produced by the police. In view of this position, statement of
PWs. 1&3 that they had informed PW4 about the identity of the
H

).
N.H. MUHAMMED AFRAS v. STATE OF KERALA 565
[DR. ARIJIT PASAYAT, J.]
deceased cannot be said to be true. A.dded to that there has A
been unexplained delay of considerable time gap between the
time when the FIR was supposedly lodged and the time it
reached the court at a short distance of 250 yards.

4. Learned counsel for the State on the other hand B
,._ supported the judgment of the High Court.

5. There are several factors which, as rightly contented by
learned counsel for the appellant, corrode the credibility of the
prosecution version. Firstly, the combined effect of the evidence
of PW 4, Exh.C1 and the evidence of PW17 and PWs. 1&3 is c
that there is marked contradiction between the statements of
the witnesses and the documents. If in Exh. C1 it was stated
that an unidentified body was brought to the hospital, it is not
explained as to how and why PW 4 the police constable did
not tell the doctor that the identity was known. The modes of D
investigation of the police would be in different directions if an
unidentified body is brought and when a known person's body
*
is brought. It is strange that PW 4 who is supposed to have
known the name of the deceased from PWs 1&3 chose not to
tell the name of the deceased to the Doctor. Further PW 17's E
statement is full of contradictions. Initially he denied to have
received Exh.C1, but later on he accepted to have received the
same. Even thereafter he did not offer any explanation as to
~
how and why it was stated in the Doctor's intimation that an
~
.unidentified body was brought. This could have been clarified F
had the doctor being examined. For reasons known to the
prosecution, he was not examined as a witness. Though the
High Court noted that there was no dispute that the FIR was
lodged at 10.45 PM, that is factually incorrect. In fact from the
very beginning the accused persons have been taking the stand
G
...... that the FIR was not lodged at 10.45 PM as claimed, otherwise
it would not have reached the Court which is situated at a
distance of 250 yards after about 15 hours. No explanation has
been offered as to why this delay had occurred. Had any
explanation been offered by the prosecution the Court could
H
566 SUPREME COURT REPORTS [2008] 16 S.C.R.

A have considered acceptability or otherwise of the explanation~
That.has not been done. Though ignorance of PW1 about the
scooter number, model and othe.r relevant factors may not in
all cases be suspicious circumstances, .but in the present case
this assumes' importance.
B
. 6. Above being the position, the inevitable conclusion is
that prosecution has failed to establish the accusations, and.
appellants are entitled to acquittal which we. direct. The
appellants be released forthwith from custody unless required
C . to be in custody in any other case. The appeal is allowed ..

8.8.B. Appeals allowed.
t

,_
r-

'
~-