(Prayers: Criminal Appeal is filed under Section 374 (2) of Criminal Procedure Code, to call for the records and to set aside the conviction and sentence dated 19.09.2022 passed by the learned Additional District and Sessions Judge/Presiding Officer Special Court for EC and NDPSAct Cases, Pudukkottai in S.C.No.29 of 2015 and acquit the appellants.

Criminal Appeal is filed under Section 374 (2) of Criminal Procedure Code, to call for the records and to set aside the conviction and sentence dated 19.09.2022 passed by the learned Additional District and Sessions Judge/Presiding Officer Special Court for EC and NDPS Act Cases, Pudukkottai in S.C.No.29 of 2015 and acquit the appellant.

Criminal Appeal is filed under Section 374 (2) of Criminal Procedure Code, to call for the records and to set aside the conviction and sentence dated 19.09.2022 passed by the learned Additional District and Sessions Judge/Presiding Officer Special Court for EC and NDPS Act Cases, Pudukkottai in S.C.No.29 of 2015 and acquit the appellants.

Criminal Appeal is filed under Section 372 of Criminal Procedure Code, to call for the records and set aside the judgment passed in Sessions Case No.29 of 2015, dated 19.09.2022, on the file of the Additional District and Sessions Judge / Presiding Officer Special for E.C. And NDPS Act Cases, Pudukkottai.)

Common Judgment:

G.K. Ilanthiraiyan, J.

1. Crl.A(MD)Nos.627, 705 and 713 of 2022 are directed as against the Judgment passed in S.C.No.29 of 2015 by the Additional District and Sessions Judge (Special Court for E.C and NDPS Act Cases), Pudukkottai, thereby, convicting the appellants/accused Nos.1,2 and 10 to 12 for the offence punishable under Sections 120(b) and 302of IPC and sentenced the accused Nos.1 & 2 to undergo imprisonment for life and imposing a fine of Rs.5,000/- each, in default, to undergo three months Simple Imprisonment for an offence under Section 120(b)of IPC and further sentenced the accused No.1 to undergo imprisonment for life and imposing a fine of Rs.5,000/- each, in default, to undergo three months simple imprisonment for an offence under Section 302 of IPC. Accused Nos.10 to 12 are found guilty for the offence under Section302 IPC sentencing them to undergo imprisonment for life and to pay a fine of Rs.5,000/- each, in default to undergo three months simple imprisonment.

2. The case of the prosecution is that the accused Nos.1,3,4,5 &6 belong to the same community. The accused No.2 belongs to Scheduled Caste community and the accused Nos.7 to 9 belong to Udaiyar community. The accused Nos.1 to 9 are residing at Ganapathipuram, Pudukkottai District. The accused Nos.10 & 11 are hailing from Trichy. Accused No.12 is hailing from Thanjavur. Accused Nos.10 to 12 became friends when they were in prison. They had acquainted with the first accused through the friend of the first accused. The deceased is the own brother of the complainant and he was the President of the District All India Congress Committee and he was also elected as Panchayat President of Ganapathipuram during the year 1996,2001. When Panchayat Election was held during the period of 1996, oneThavasi, who belongs to Kallar Community contested in the election against Anantha Raj but the said Thavasi lost the election. When Panchayat Election was held during the year of 2001, one Annadurai contested with the support of Kallar Community people against Anantha Raj but the said Annadurai lost in the election. Therefore, an enmity arose between the accused No.4, who is the younger brother of the Thavasi, accused No.9 Markandeyan, who is the relation of the Annadurai with deceased Anantha Raj. During the year 2006, the post of Panchayat President was allotted to the Scheduled Caste Community Women. Therefore, the wife of the elder brother of the second accused contested in the said election and she was elected as a President. Therefore, the second accused carried out the contract works in the name  of the deceased and the contract bill amount came in the name of the deceased. Therefore, there was an enmity between the deceased and the second accused with regards to the payment of contract bills and other financial transactions. During the year 2011, for the very same Ganapathipuram Panchayat, another person contested in the election as against the second accused's brother's wife. The deceased extended his support to the said person. The first accused and their parties extended their support to the second accused's brother's wife. However, the wife of the brother of the second accused lost in the election and the person, who was supported by the deceased was elected as the Panchayat President. Therefore, enmity arose between the deceased and the accused parties. That apart, during Pongal festival of the year 2012, there was a dispute between the second accused and the deceased with regard to the celebration of Pongal. Thereafter, there was a panchayat held, in which, the first accused gave the deceased life threats. Accused Nos.7 to 9 also developed enmity as against the deceased to support the accused Nos.1 to6. While being so, the accused Nos.1 to 9 conspired together to do away with the life of the deceased. At that juncture, one prisoner at Central Prison, Trichy, who is the friend of the first accused, promised to give asum of Rs.3,00,000/- to the accused No.10 to do away with the life of the deceased. Therefore, the accused Nos.11 & 12, being the friends of the accused No.10 joined together and planned to do away with the life of the deceased. In order to execute the conspiracy, on 03.11.2012 while the deceased was going on the Eastern side of the Thanjavur to Pudukkottai Road near a Dry Fish Factory at about 12.00 p.m., in his two-wheeler, the accused Nos.1 & 2 and the accused Nos.10 to 12followed him by in their respective motorcycles. When the deceased slowed down his two-wheeler to attend a phone call, the first accused assaulted the deceased with a knife and as such, the deceased fell down. He further cut the throat of the deceased and the second accused assaulted the deceased on his head with a sickle. The accused No.10 assaulted the deceased on his chest with a sickle. The accused No.12assaulted the deceased on his backside of the right shoulder with a sickle. The Accused No.11 had beaten the deceased on his left shoulder and chest with a wooden stick, thereby, the deceased sustained grievous injuries and died on the spot.

3. On the complaint, the respondent police registered the FIRin Cr.No.76 of 2012 for the offences punishable under Section 302 of IPC. After completion of investigation, the respondent filed a final report and the same has been taken cognizance by the trial Court in S.C.No.29of 2015, on the file of the Additional District and Sessions Judge/Presiding Officer Special Court for E.C and NDPS Act Cases, Pudukkottai.

4. On the side of the prosecution, in order to bring the charges to home, they had examined P.W.1 to P.W.41 and Exs.P1 to P38 were marked. On the side of the appellant, no one was examined and no document was produced before the Trial Court. The prosecution has produced Material Objects in M.O.1 to M.O.9.

5. On perusal of the oral and documentary evidence, the Trial Court found the accused Nos.1 & 2 guilty of the offence punishable under Section 120(b) and 302 of IPC and accused Nos.10 to 12 guilty of the offence punishable under Section 302 of IPC and sentenced him as stated above in Paragraph No.1. The Trial Court acquitted the accusedNos.3 to 9. Aggrieved by the said conviction and sentence imposed onthe accused Nos.1,2 & 10 to 12 as well as the acquittal of accused Nos.3to 9, these present appeals have been filed.

6. The learned Senior counsel and the other counsels on record on behalf of all the appellants in Crl.A(MD)No.627, 705 and 713 of 2022 submitted that the alleged occurrence took place on 03.11.2012 at about10.00 a.m., to 12.00 p.m. There is no eye witness in this case. The prosecution case is only based on circumstantial evidences and the Trial Court applying the last seen theory convicted the accused Nos.1, 2 & 10to 12. When the other accused persons, viz., the accused Nos.3 to 9,standing in the same footing, were acquitted by the trial Court, on the ground of disparity, the order of conviction and sentence passed against the appellants/accused Nos.1,2 & 10 to 12 cannot be sustained and it is liable to be set aside. All the material witnesses turned hostile and there was absolutely no material to connect the accused Nos.1,2 & 10 to 12 to convict them. No one have spoken about the conspiracy between the accused. The prosecution has also failed to examine any independent witness to prove the charges. The Trial Court, based on the previous enmity and the evidence of the witnesses, who had seen the accused before the occurrence, mechanically convicted the accused Nos.1,2 & 10to 12. There is no chain links while applying the last seen theory to convict the appellants. Though the prosecution merely relied upon the election motive to do away with the life of the deceased, no one had spoken about the motive behind the crime. Initially, the complaint was lodged only as against the first accused and no other names were mentioned in the complaint. The first Investigating Officer, after completion of investigation, filed a final report as against the accusedNos.1 to 9 on 12.02.2013. Only on the basis of the confession statement made by the accused Nos.10 to 12, that too, in another case, which was registered against them, they were roped in this case as accused Nos.10to 12. According to them, one of the friends of the accused No.1 was in prison and he fixed the accused Nos.10 to 12 to do away with the life of the deceased. However, these allegations were not proved by the prosecution by any of the witnesses. After recording the confession statement, the second investigating officer filed another final report on 25.05.2013, thereby, impleaded the accused Nos.10 to 12.

7. The prosecution merely projected the witnesses of P.Ws.9,15& 20, who had seen the accused Nos.1 & 2, 10 to 12 while they followed the deceased. According to them, the accused Nos.1 to 9 were very much present at the time of burial of the deceased. However, they did not even whisper about the occurrence before anybody. Their statements were recorded only after 20 days from the date of occurrence. Their statements reached the Court only after 8 months. There is absolutely no explanation by the prosecution for the delay in recording the statement and sending those documents to the Court. It shows that all the accused persons were fixed after thought connecting the same election dispute with the deceased. Therefore, the prosecution miserably failed to prove any of the charges and even then, the Trial Court mechanically convicted them.

8. Per contra, the learned Additional Public Prosecutor appearing for the respondent would submit that P.W.9 had categorically deposed that the first accused and the second accused were proceedings towards the deceased's two-wheeler on 03.11.2012 at about 11.00 p.m. He had seen the accused Nos.1 & 2 lastly. It is also corroborated by the evidence of P.W.15. He had spoken that the first accused and the second accused proceeded on the western side on 03.11.2012 and the second accused got down from the bike of the first accused. Therefore, the prosecution proved the last seen theory by examining the witnesses P.Ws.9,15 and 20. It is one of the probable circumstances in the murder case. Further, the prosecution had examined P.W.1 and P.W.25 to prove the motive behind the crime as against the accused Nos.1 & 2. Both had clearly spoken about the motive to do away with the life of the deceased due to election motive. It was clearly established by the prosecution. The prosecution examined P.W.12, who had spoken about the confession statement of the accused Nos.10 to 12 and it lead to recovery of properties. Therefore, the prosecution proved the motive behind the crime and also the last seen theory. After recording the confession statement of accused Nos.10 to 12, the Trial Court rightly convicted the accused Nos.1, 2 & 10 to 12. Therefore, it does not require any interference of this Court.

9. The learned counsel appearing for the appellant in Crl.A(MD)No.376 of 2023 submits that when the trial Court found the accused Nos.1 & 2, 10 to 12 guilty, then accused Nos.3 to 9 are also liable to be punished. The same witnesses had clearly spoken about the motive and conspiracy of accused Nos.3 to 9 with the other accused persons. Even then, the Trial Court without any reason, acquitted the accused Nos.3 to 9 herein. Therefore, he prayed to extend the conviction imposed on the accused Nos.1,2 to 10 to 12 to accused Nos.3 to 9 as well.

10. Heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State.

11. It is a case that is completely based on circumstantial evidence. The trial Court, based on the last seen theory and the motive, convicted the accused Nos.1,2 & 10 to 12.

12. The point for consideration in these appeals are that:-

                  i) whether the prosecution proved the motive and last seen theory in the case to convict the accused Nos.1, 2 & 10 to 12.

                  ii) Whether the trial Court is correct in acquitting the accusedNos.3 to 9 when they were also standing in the same footing as accusedNos.1,2 &10 to 12 on the basis of the very same evidence.

13. There is no eye witness to the alleged occurrence. The prosecution mainly projected the case as such the accused Nos.1 to 9 had motive because of their previous enmity to do away with the life of the deceased. Therefore, they conspired together and engaged one of the friends of the first accused, while he was in prison along with accusedNos.10 to 12, to do away with the life of the deceased. The first accused assured to give a sum of Rs.3,00,000/- to the friend of the first accused  and as such he engaged accused Nos.10 to 12. Therefore, this Court has to see whether this conspiracy theory proved by the prosecution or not.

14. The prosecution mainly projected the motive to be asfollows: accused Nos.1, 3 to 6 belong to the same community and accused No.2 belongs to SC community. Accused Nos.7 to 9 belong toother community. All were connected through election dispute between themselves and the deceased, during the panchayat election for the period from 1996, 2001, 2006 and 2011. Though the deceased was elected as President of Ganapathipuram Panchayat, subsequently, the said post was allotted to Schedule Caste Women. The wife of the brother of the second accused contested the election for the post of President of Ganapathipuram Panchayat and got elected during the period of 2006.However, during the period 2011, the person, who was supported by the deceased was elected as Panchayat President under Scheduled Caste Women category. However, the occurrence took place only on 03.11.2012. There is no connectivity to prove the motive for the accusedNos.1 to 9. Therefore, the prosecution miserably failed to prove motive behind the crime. Further, though the prosecution projected that during Pongal festival of the year 2012, there was a dispute between the second accused and the deceased in respect of Pongal celebrations. But the occurrence took place only on 03.11.2012, that is after a period of more than 10 months from the alleged pongal dispute. Therefore, the motive was not proved by the prosecution. This Court is of the knowledge that the absence of motive will not automatically become aground for acquittal when there exists strong circumstantial evidence. But when the prosecution case is based only on circumstantial evidences, the chain of such evidences shall be so complete and be linked together for the case to stand strong even without the establishment of the motive behind the crime. The same was also held by the Hon'ble Supreme Court in the case of Subash Aggarwal vs. the State of NCT of Delhi reported in 2025 INSC 449.

15. Further, even assuming that there was a motive behind the crime, whether the prosecution proved the last seen theory or not has to be examined.

16. The prosecution had examined the witnesses P.Ws.9,15and 20 in order to prove the last seen theory. P.W.9 deposed that while hewas standing in the Aathanakottai E.B. office bus stop to go to Perungalure on 03.11.2012 at about 11.00 p.m., along with one Parameshwaran, they had seen the accused Nos.1 & 2 in their bike while proceeding in the Pudukkottai to Thanjavur main road from south side to north side. From the said place at about 15 kms, the first accused stopped his bike and dropped the second accused. Thereafter, P.W.9 heard that the deceased was murdered. It is not at all possible for P.W.9to have seen the first accused drop the second accused from his bike at the distance of 15 kms from where he was standing. In fact, he did not see the deceased along with accused. He also admitted in his cross examination that he did not inform about the same to anybody.

17. The prosecution examined one Parameshwaran as P.W.10, however, he turned hostile and he did not support the evidence of P.W.9.In order to prove the last seen theory, the prosecution had examined P.W.15. He had spoken about the motive as well as the last seen theory. When he was standing near Pownraj Tea shop on 03.11.2012 at about7.30 a.m., he had seen the accused Nos.1 & 2 proceed in a two-wheeler. Thereafter, he heard that the deceased was murdered. He also admitted that the distance between the tea shop and the place of occurrence is about 10 kms. Further, he was examined only after 20 days from the date of occurrence. In fact, he is also residing very close to the deceased's house. He had knowledge about the occurrence and the police enquired him. Even then, he did not whisper about of the presence of the accused Nos.1 & 2 to anybody. But the complaint was lodged on the very same date of occurrence alleging that the first accused murdered the deceased. When no one whispered about any overt act of accused Nos.1 & 2 and their presence, this Court is unaware as to P.W.1 lodged the complaint by stating the name of the first accused. In fact, FIR was registered only against the first accused and others. It is also unbelievable that P.W.1 had knowledge of the names of the other accused when no person mentioned the name of the other accused. Therefore, the evidence of P.W.15 also did not support the case of the prosecution to prove the last seen theory.

18. P.W.20 also had spoken about the last seen theory. He had seen the accused Nos.1 and 2 on 03.11.2012 at about 10.00 a.m. Further he had stated that the deceased was proceeding on his bike at about 10.00a.m., and immediately, accused Nos.1 & 2 also followed him in a motorcycle. P.W.10 is none other than the own brother-in-law of the deceased. Further, he also deposed that the distance between the place in which he had seen accused Nos.1 and 2 and the scene of crime is about12 kms. Therefore, all the witnesses had deposed that the distance between the place in which they had seen accused Nos.1 & 2 and the scene of the crime is about 10 to 15 kms. Therefore, their witness cannot be taken into consideration as they had seen the accused soon before the occurrence. Therefore, the prosecution miserably failed to prove the last seen theory to connect the accused Nos.1 & 2 with the occurrence, infact, they did not even see the accused Nos.1 & 2 along with deceased. Itis also curious to state here that P.Ws.9, 15, 20, who were projected as the last seen evidences did not see the accused Nos.10 to 12. Even assuming that the accused Nos.1 & 2 were lastly seen by P.Ws.9,15 & 20with the deceased, they did not see accused Nos.10 to 12 and as such, the  prosecution failed to prove the last seen theory with respect to accusedNos.10 to 12. No one had spoken about their presence. Accused Nos. 10to 12 were implicated only after recording their confession statement in another case. According to the prosecution, on the basis of their confession statement, there was recovery of properties. P.W.12 had spoken about the recovery. Therefore, no recovery was made from the accused Nos.1 & 2. Only after recording the confession statement of accused Nos.10 to 12, the prosecution had recovered materials for which,P.W.12 had stood as a witness. Even according to P.W.12, the material objects were recovered only from the accused Nos. 10 to 12 and those materials are not connected to accused Nos.1 & 2. Therefore, P.W.12was set up by the prosecution in order to implicate the accused Nos.10 to12. They were implicated as accused as if one of the friends of accusedNo.1, while he was in prison, had instructed them to do away with the life of the deceased. Therefore, he engaged the accused Nos.10 to 12 and murdered the deceased. The person, who engaged the accused Nos.10 to12 is not known and he was not shown as an accused. It is fatal to the case of the prosecution.

19. Further, the Investigating Officer completed the investigation and filed the final report as early as on 12.02.2013 as against the accused Nos.1 to 9 alleging that the accused Nos.1 to 9conspired together took away the life of the deceased. After recording the confession statement of the accused Nos.10 to 12 in the other case, the second Investigating Officer impleaded them as an accused and filed another charge-sheet on 25.05.2013, as if one of the friends of the first accused engaged accused Nos.10 to 12 to do away with the life of the deceased, that too, while they were in prison jointly. The second investigating officer had deposed as P.W.37, who recorded the confession statement of the accused Nos.10 to 12. He deposed that the accused Nos.10 to 12 were arrested and remanded to judicial custody in pursuant to the registration of the FIR in Cr.No.90 of 2013, on the file of the Kumbakonam East Police Station. While being so, their confession statements were recorded as if they murdered the deceased in this case. However, all the three accused persons were acquitted in S.C.No.41 of2018, on the file of the Assistant Sessions Court, Kumbakonam. Therefore, the case in which confession statement was recorded from the accused Nos.10 to 12 ended in acquittal in S.C.No.41 of 2018. Thus, it isclear that there is no explanation for the delay in recording the statement of the persons, who were projected as lastly seen evidences. Their statements were recorded only after 20 days from the date of occurrence and their statements were sent to the Court only after eight months. Infact, all the accused Nos.1 to 9 were very much present during the burial of the deceased. The same last seen witnesses were also present during burial of the deceased and even then, they did not whisper the alleged occurrence to anybody. Further, the charge itself is only against the first and second accused under Section 120(b) of IPC. Initially, as per the first charge-sheet dated 12.02.2013, there were only 9 accused in which, accused Nos.1 & 2 attacked the deceased and all the accused persons conspired together to do away with the life of the deceased. After recording the confession statement of the accused Nos.10 to 12, the entire story of the prosecution changed and it was projected as one of the friends of the accused No.1 engaged the accused Nos.10 to 12 to do away with the life of the deceased while they were in jail together and thereby, they had murdered the deceased. In over all circumstances, the prosecution miserably failed to prove any of the charges as against all the accused person. Unfortunately, the trial Court in order to convict the accused Nos.1 & 2 had taken the last seen theory of P.Ws.9, 15 & 20. Inorder to  convict the accused Nos.10 to 12, the trial Court had taken their confession statement and recovery from another case. The prosecution cannot blow hot and air in the same breath. If the first limb of the case of the prosecution is taken into consideration, the accused Nos.10 to 12cannot be convicted. If the second limb of the case of the prosecution is taken into consideration, accused Nos.1 & 2 cannot be convicted.

20. As per the second limb of the prosecution, the accusedNos.1 to 9 conspired together and instructed one of the friends of the first accused to engage other accused to do away with the life of the deceased. When it being so, the Trial Court ought not to have acquitted the accused Nos.3 to 9 herein. However, the Trial Court convicted the accused Nos.1 & 2 without any material. When the trial Court disbelieved the evidence against the accused Nos.3 to 9, it is also applicable to the accused Nos.1 & 2 and there cannot be any disparity in this regard.

21. Therefore, the entire conviction and sentence imposed on the accused Nos.1,2 & 10 to 12 cannot be sustained and it is liable to beset aside.

22. In view of the above, the conviction and sentence imposed on the accused Nos.1,2 & 10 to 12 in S.C.No.29 of 2015, dated19.09.2022, on the file of the Additional District and Sessions Judge(Special Court for E.C and NDPS Act Cases), Pudukottai, cannot be sustained and are liable to be set aside.

23. In the result, this Criminal Appeals in Crl.A(MD)Nos.627,705 and 713 of 2022 are allowed and the Judgment made in S.C.No.29 of2015, dated 19.09.2022, on the file of the Additional District and Sessions Judge (Special Court for E.C and NDPS Act Cases), Pudukottai, is hereby set aside. The accused Nos.1,2 & 10 to 12 are acquitted of all the charges. The bail bond, if any, executed by the accused Nos.1,2 & 10 to 12 shall stand cancelled. The fine amount, if any paid, shall be refunded to the accused Nos.1,2 & 10 to 12. The accused Nos.1,2 & 10to 12 shall be set at liberty forthwith, if they are no longer required in connection with any other case.

24. In view of the above, the appeal as against the acquittal of the accused Nos.3 to 9 in Crl.A(MD)No.376 of 2023 fails and it is dismissed.