(Prayer: Criminal Appeal is filed under Section 372 of the Criminal Procedure Code, 1973, to call for the records and set aside the Judgment of acquittal dated 20.06.2022 made in S.C.No.21 of 2020 on the file of the Additional District and Sessions Court, Periyakulam in Crime No.115 of 2019 on the file of the first respondent police and convict the respondents 2 and 3/accused for the charge of murder under Section 302 of I.P.C.)

G.K. Ilanthiraiyan, J.

1. This appeal is directed as against the Judgment passed in in S.C.No.21 of 2020 dated 20.06.2022 on the file of the Additional District and Sessions Court, Periyakulam, thereby acquitting the respondents 2 and 3 for the offences punishable under Section 302 of I.P.C.

2. The case of the prosecution is that on 08.07.2019 at about 07.00 p.m., the second accused developed an illegal intimacy with the wife of the first accused. On account of the same, the deceased used to insult the wife of the first accused by referring to her illegal intimacy with the second accused whenever she came for fetching water from the common water lane. Therefore, there was previous enmity between the accused and the deceased. Hence both the accused decided to do away with the life of the deceased.

3. While being so, on 08.07.2019 at about 07.00 p.m., the second accused had picked up the deceased in his motorcycle and took him along with liquor and snacks, to the scene of crime, which is belonging to one Jeganathan. While they were consuming liquor, the first accused pushed the deceased, causing him to fall down. Thereafter, the first accused placed a stone on the head of the deceased and the second accused placed a stone on his chest. After causing the injuries, they fled away from the scene of occurrence. The deceased died on the spot due to the injuries sustained by him. Based on the complaint, the first respondent registered an F.I.R in Crime No.115 of 2019 for the offence punishable under Section 302 of I.P.C. After completion of investigation, the respondent filed a final report and the same has been taken cognizance by the Trial Court.

4. In order to bring the charges to home, the prosecution examined P.W.1 to P.W.21 and marked Exs.P1 to P14. The prosecution had produced Materials Objects M.O.1 to M.O.13 and the Court documents were marked as Ex.C.1 and Ex.C.2. On the side of the accused, no witnesses were examined and no documents were produced before the Trial Court.

5. On perusal of oral and documentary evidence, the Trial Court found both the accused not guilty for the offence punishable under Section 302 of I.P.C and acquitted them. Aggrieved by the same, the defacto complainant as appellant has preferred the present appeal.

6. The learned counsel appearing for the appellant submitted that the Trial Court completely overlooked the evidence of P.W.6, P.W.12 and P.W.13. They had seen the accused while they were bringing the deceased to the scene of crime. They categorically deposed that the accused picked up the deceased along with liquor and snacks. The accused had a motive to do away with the life of the deceased for the reason that he used to insult the wife of the first accused. Thereafter, the dead body of the deceased was found at the place of occurrence. Therefore, the accused are liable to be punished by applying the principles of the “last seen theory”, which is sufficient to connect the accused in the absence of any other links in the chain of circumstantial evidence. Further, the confession statements of the accused led to the recovery of material objects. Hence, the confession statements of the accused cannot be ignored and they are liable to be punished and convicted for the offence under Section 302 of IPC.

7. P.W.6 categorically deposed that he had seen the first accused who brought the deceased on his motorcycle while P.W.6 was talking to one Loganathan at his workshop. Though the said Loganathan turned hostile, the evidence of P.W.6 was corroborated by P.W.12 and P.W.13. P.W.12 also stated that he had seen the first accused who brought the deceased to the scene of crime on his motorcycle at about 06.45 p.m., on 08.07.2019. The same was further corroborated by P.W.13, who had also seen the accused along with the deceased in his motorcycle. P.W.1 to P.W.3 categorically deposed about the motive for the accused to do away with the life of the deceased. Therefore, the prosecution proved the charges against the accused, however, the Trial Court failed to convict them.

8. Per contra, the learned counsels appearing for the respondents 2 and 3 submitted that the prosecution failed to prove the motive for the accused to do away with the life of the deceased. Though P.W.6, P.W.12 and P.W.13 claimed to have seen the accused along with the deceased, the prosecution failed to link the chain of circumstances against the accused. The dead body of the deceased was found only on the next day ie., on 09.07.2019. Further, according to the prosecution, the material objects were recovered only on 11.07.2019. Further, the arrest and recovery were not proved by the prosecution in the manner known to law. Therefore, the Trial Court rightly acquitted the accused and the same does not warrant any interference of this Court.

9. The learned Additional Public Prosecutor appearing for the first respondent also supported the case of the appellant and sought for conviction of the respondents 2 and 3 herein for the reason that the Trial Court failed to properly appreciate the evidence of P.W.6, P.W.12 and P.W.13, who had spoken about the accused being last seen along with the deceased.

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

11. The prosecution projected the motive for the occurrence to be the alleged illegal intimacy between the wife of the first accused and the second accused, which was criticized and condemned by the deceased. Therefore, according to the prosecution, the first and second accused decided to do away with the life of the deceased. This version appears improbable. When the second accused was allegedly having illegal intimacy with the wife of the first accused, it is difficult to believe that both the accused 1 and 2 would have jointly intended to do away with the life of the person who merely criticized their illegal relationship. It is unnatural that a person having illegal intimacy with another man's wife would join hands with the husband to murder a person who criticized such relationship.

12. The son of the deceased had deposed as P.W.1. He deposed that the deceased was a drunkard and used to return home very late in the evening and sometimes only on the next day, depending upon his consumption of alcohol. On the date of the alleged occurrence ie., on 08.07.2019, the deceased did not return home. On the next day, P.W.1 enquired about his whereabouts and came to know that the dead body of the deceased was lying at the scene of crime. After seeing the body, he lodged the complaint which was marked as Ex.P.1. He further deposed that only thereafter he came to know about the alleged illegal intimacy between the wife of the first accused and second accused and that the deceased had condemned the same, thereby giving rise to a motive for the accused to do away with the life of the deceased. However, it is clear from his evidence that P.W.1 had no prior knowledge of such illegal intimacy between the wife of the first accused and second accused. He categorically admitted that he did not even whisper about the illegal intimacy between the wife of the first accused and second accused in his complaint. Further, he deposed that there was no previous enmity between the accused and his father.

13. The wife of the deceased had deposed as PW2. She deposed that only three days after the date of occurrence she came to know that her husband had been murdered by the accused. She also did not even whisper about the illegal intimacy between the wife of the first accused and the second accused nor stated that her husband had condemned or criticized the same.

14. The son-in-law of the deceased had deposed as P.W.3. He corroborated the evidence of P.W.2 and he did not even whisper about the motive on the part of the accused to do away with the life of the deceased.

15. Therefore, the prosecution miserably failed to prove the motive behind the crime allegedly committed by the accused. None of the witnesses spoke about the illegal intimacy between the wife of the first accused and second accused. P.W.6, who is an independent witness, deposed that he had seen the first accused picking up the deceased in his motorcycle on 08.07.2019 at about 07.00 p.m. Thereafter, he came to know that the deceased was murdered and that his body was lying in the scene of crime. He further deposed that while he was talking with one Loganathan, who owned a workshop, he had seen the first accused along with the deceased. The said Loganathan was examined as P.W.11, however, he turned hostile and did not support the case of the prosecution. Another independent witness, P.W.12, deposed that he had seen the first accused along with the deceased in his motorcycle on the date of occurrence at about 06.45 p.m. He further deposed that after sometime, he had also seen the second accused bringing snacks, water bottle and glass to consume liquor. Thereafter, both the accused returned back on the same way and he did not see the deceased thereafter. All this evidence is not helpful to the case of the prosecution for the simple reason that they failed to prove the complete chain of circumstances against the accused. Even assuming that the accused and the deceased went to the scene of crime, there is no chain of evidence to connect the accused in the case of murder of the deceased. Mainly, the prosecution failed to prove the motive behind the crime to do away with the life of the deceased. There was a long gap of about 12 hours between the time when the deceased was allegedly last seen with the accused and the time when the dead body was found. According to P.W6, P.W12 and P.W.13, the accused were last seen with the deceased between 06.45 p.m and 07.00 p.m on 08.07.2019. In order to apply the “last seen theory”, there must be a complete and unbroken chain of evidence connecting the accused with the crime, which is absent in the present case.

16. The Hon’ble Supreme Court in the case “State of Goa Vs. Pandurang Mohite, AIR 2009 SC 1066” and a plethora of other judgements has stated that the time gap between last seen alive and the recovery of dead body must be so small that the possibility of any person other than the accused being the author of the crime becomes impossible.

17. In this regard, it is relevant to rely upon the Judgment of the Hon'ble Supreme Court of India in the case of “Arjun Marik v. State of Bihar” [1994 Supp (2) SCC 372], wherein the Hon’ble Supreme Court of India held as follows:

               “31. ….Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.”

18. Further the prosecution failed to prove the story of illegal intimacy between the wife of the first accused and second accused. The case rests entirely on circumstantial evidence. In order to establish such a case, the prosecution must prove each circumstance and connect the chain of evidence conclusively.

19. In the present case, the prosecution failed to establish motive or enmity with the deceased which forced them to do away with the life of the deceased. Therefore, the Trial Court rightly acquitted the respondents 2 and 3 and this Court finds no infirmity or illegality in the order passed by the Trial Court and the same does not warrant any interference of this Court.

20. Accordingly, this Criminal Appeal fails and is dismissed.