(Prayer:- Criminal Appeal is filed under Section 415(2) of BNSS, to call for the records relating to the judgment dated 03.06.2025 made in S.C.No.99 of 2022, on the file of the II Additional District and Sessions Judge, Thoothukudi and set aside the conviction and sentence imposed against the appellants and allow the above appeal by acquitting appellants.

Criminal Appeal is filed under Section 415(2) of BNSS, to call for the records relating to the judgment dated 03.06.2025 made in S.C.No.99 of 2022, on the file of the II Additional District and Sessions Judge, Thoothukudi and set aside the conviction and sentence imposed against the appellant and allow the above appeal by acquitting appellant.

Criminal Appeal is filed under Section 415(2) of BNSS, to call for the records relating to the judgment dated 03.06.2025 made in S.C.No.99 of 2022, on the file of the II Additional District and Sessions Judge, Thoothukudi and set aside the conviction and sentence imposed against the appellant and allow the above appeal by acquitting appellant.)

Common Judgment

G.K. Ilanthiraiyan, J.

1. These appeals are directed as against the Judgment passed in S.C.No.99 of 2022, dated 03.06.2025, on the file of the II Additional District and Sessions Judge, Thoothukudi, thereby, convicting the accused for the offences punishable under Sections 148 and 302 of IPC.

2. The case of the prosecution is that the deceased was a habit of consuming liquor during night hours and sleeping in his boat halted in Threspuram seashore. The accused along with child-in-conflict with law were also in the habit of consuming liquor in the same seashore and hence, the deceased had objected to their act of leaving the broken pieces of glass liquor bottles there, which caused resentment in the minds of the accused. Therefore, on 30.08.2020 at about 08.00 p.m., the accused assembled at the back side of Thoothukudi Threspuram Madhavanair colony paid toilet and conspired together to do away with the life of the deceased. In pursuant to the conspiracy, on 31.08.2020 at about 09.30 p.m., all the accused came along with the child-in-conflict with law to consume liquor at the Threspuram seashore and when they were proceeding near Sekar tea shop at about 9.45 p.m., the deceased Kalimuthu questioned them about consuming of liquor at seashore, the accused were outraged and abused the deceased with filthy language and with an intention to do away with the life of the deceased, assaulted him with wooden reapers forcibly, thereafter, they dragged him to the sea and surrounded him. When the deceased attempted to come out from the sea, they pushed him into the sea and caused death.

3. Based on the complaint, FIR was registered by the Inspector of Police, North Police Station, Thoothukudi in Cr.No.761 of 2020 initially for an offence punishable under Section 174 Cr.P.C., and subsequently it was altered into Sections 174 Cr.P.C., 120(B), 147, 148, 294(b) and 302 of IPC. After completion of investigation, a final report was filed and the same has been taken cognizance by the trial Court.

4. In order to bring the charges to home, the prosecution had examined P.W.1 to P.W.28 and marked Ex.P.1 to Ex.P.35. On the side of the accused, no witnesses were examined and no documents were produced before the trial Court. The prosecution has produced Material Objects in M.O.1 to M.O.17.

5. On perusal of oral and documentary evidence, the trial Court found the accused guilty for the offences punishable under Sections 148 and 302 of IPC. They were sentenced to undergo Life Imprisonment and were imposed a fine of Rs.5,000/- each, in default, to undergo six months Simple Imprisonment for an offence punishable under Section 302 of IPC. Further, they were sentenced to undergo three years Rigorous Imprisonment and were imposed a fine of Rs.1,000/- each, in default, to undergo one month simple imprisonment. Aggrieved by the same, the appellants have preferred these appeals.

6. The learned counsel for the appellants submit that except the close relatives of the deceased, the prosecution had failed to examine any other independent witnesses to bring the charges to home. The testimonies of witnesses P.Ws. 1 to 5, are self-contradictory and they did not support the case of the prosecution. Though, the prosecution had failed to prove the arrest and recovery of material objects, the trial Court mechanically convicted the accused. According to the case of the prosecution, P.Ws.6 to 11 are the eye witnesses to the occurrence, however, P.Ws.6 & 7 turned hostile and they have not supported the case of the prosecution. Therefore, absolutely, there is no evidence on the side of the prosecution to connect the accused to the alleged occurrence. The statement of witnesses regarding material objects were recorded only on 01.10.2020 and only thereafter, they were identified and recovery was made. There is a significant lapse of time and it raises reasonable suspicion on fixing of the accused. Therefore, the entire conviction and sentence imposed on the accused cannot be sustained and it is liable to be set aside.

7. Per contra, the learned Additional Public Prosecutor appearing for the respondent would submit that the prosecution categorically proved the arrest and recovery of the material objects from the accused. Their confession statement also led to recovery of the material objects. The injuries sustained by the deceased also corroborate with the medical evidence and hence, the prosecution proved the charge beyond any reasonable doubt. Therefore, the trial Court rightly convicted the accused and it does not warrant any interference of this Court.

8. Heard the learned counsel appearing on either side and perused the materials available on record.

9. The prosecution mainly relied upon the witnesses P.Ws.6 to 11 as eye witnesses to the occurrence. However, P.Ws.6 & 7 turned hostile and they have not supported the case of the prosecution. P.W.8 deposed that on 31.08.2020 he had gone to the scene of occurrence in search of a goat. At that juncture, the deceased was there under the influence of Alcohol and was singing a song and at that time, one Murugeshwari came there. The deceased asked the said Murugeshwari where she was going. She told that she had not found the goat and she searched for the goat. At the same time, the accused were consuming liquor along with a child and the deceased warned them not to have any alcohol in that place. Immediately, the accused scolded the deceased with filthy language and attacked him with wooden reaper. The another eye witness P.W.9 deposed the very same verbatim of P.W.8. The said Murugeswari was examined as P.W.10, but she did not support the case of the prosecution. She turned hostile. P.W.11 is an eye witness, but he turned hostile and he did not support the case of the prosecution. The evidence of P.Ws.7 & 8 revealed that though they had seen the occurrence, they did not whisper about the alleged occurrence to anybody. Their statements were recorded only on 01.10.2020 ie., after a period of 30 days. In fact, all the accused were arrested on 27.09.2020 pursuant to the very same occurrence. There is absolutely no piece of evidence placed by the prosecution to state that on whose information, the investigating officer fixed the accused in this case. It clearly shows that only after fixing the accused even as early as on 27.09.2020, the statement of P.W.8 and P.W.11 were recorded by the respondent to strengthen their case, even though, P.Ws.10 and 11 turned hostile and they did not support the case of the prosecution. Though P.Ws.8 & 9 supported the case of the prosecution, their evidence cannot be considered for the simple reason that their statements were recorded only on 01.10.2020. The relevant portion of the cross-examination of P.W.8 is as follows:-

               

                

                 

10. Thus, it is clear that their statements were recorded only on 01.10.2020. It is also corroborated by the Investigating Officer, who deposed as P.W.28. The Investigating Officer deposed that only on the ground of suspicion, the accused were arrested on 27.09.2020 and 28.09.2020 respectively. In view of the evidence of P.W.28, it is clear that the prosecution cooked up the case. In order to strengthen their case, the prosecution had examined P.Ws.8 to 11. The prosecution has failed to prove the recovery of the material objects from the accused. That apart, the statement of all the witnesses were sent to the Court only along with charge sheet on 31.12.2020. In fact, the said charge-sheet was filed before the jurisdictional Magistrate Court only on 21.04.2021. Absolutely, there is no explanation on the side of the prosecution for the inordinate delay in recording the statements of the witnesses and also sending their statements to the Court. Therefore, the prosecution miserably failed to prove any one of the charges as against the accused and the entire conviction and sentence cannot be sustained and it is liable to set aside.

11. In view of the above, the conviction and sentence imposed on the appellants in S.C.No.99 of 2022, dated 03.06.2025, on the file of the II Additional District and Sessions Judge, Thoothukudi cannot be sustained and are liable to be set aside.

12. In the result, these Criminal Appeal is allowed and the judgment made in S.C.No.99 of 2022, dated 03.06.2025, on the file of the II Additional District and Sessions Judge, Thoothukudi, is hereby set aside and the appellants are acquitted of all the charges. The bail bond, if any, executed by the appellants shall stand cancelled. The fine amount, if any paid, shall be refunded to the appellants. The appellants shall be set at liberty forthwith, if they are no longer required in connection with any other case. Consequently, connected miscellaneous petition is closed.