Madras High Court
R.Nanda @ Muthukumar vs The State Rep By Its on 18 June, 2025
Author: M.S.Ramesh
Bench: M.S.Ramesh
Crl.A. No.837 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 19.03.2025
PRONOUNCED ON 18.06.2025
CORAM
THE HONOURABLE MR.JUSTICE M.S.RAMESH
and
THE HONOURABLE MR.JUSTICE N.SENTHILKUMAR
Criminal Appeal No.837 of 2019
R.Nanda @ Muthukumar .. Appellant
Vs.
The State rep by its
The Inspector of Police
Palligonda Police Station
Vellore District
(Crime No.131 of 2018) .. Respondent
Prayer : Criminal Appeal filed under Section 374(2) of the Criminal Procedure
Code against the judgment of Additional District and Sessions Judge (FTC)
Vellore District in S.C. No.97 of 2019 dated 11.11.2019 and to set aside the
same.
For Appellant : Ms.N.Premalatha (Legal Aid Counsel)
For Respondent : Mr.S.Raja Kumar
Additional Public Prosecutor
JUDGMENT
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N.SENTHILKUMAR, J.
Challenging the judgment of conviction and sentence passed by the
learned Additional district and Sessions Judge (FTC), Vellore District dated
11.11.2019 made in S.C. No.97 of 2019, the sole accused has preferred this
appeal.
2. The learned Additional district and Sessions Judge (FTC), Vellore
District in S.C. No.97 of 2019, has convicted the appellant and sentenced him
as follows:-
Offence Sentence
Rigorous imprisonment for 10
years and a fine of Rs.1,000/-, in
Section 449 IPC
default to undergo rigorous impris-
onment for six months
Imprisonment for life and a fine of
Section 302 IPC Rs.1,000/-, in default to undergo
six months rigorous imprisonment
Rigorous imprisonment for 10
years and a fine of Rs.1,000/-, in
Section 392 IPC
default to undergo six months rig-
orous imprisonment.
All the sentences are ordered to run concurrently.
3. On 28.05.2018, at about 5.00 p.m, a complaint was given by PW1,
Srinivasan stating that his father was found dead near motor pumpset in their
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land at 2.40 p.m. As per the complaint, the complainant received a call from his
sister Jayanthi/PW2 around 2.00 p.m, who informed him that their father was
murdered. The respondent police registered an FIR in Crime No.131 of 2018
under Section 302 IPC. Charges were framed under Sections 499, 302 and 392
IPC by the learned Additional District and Sessions Judge (FTC), Vellore
District in S.C. No.97 of 2019.
4. The prosecution produced as many as 22 witnesses, who were
examined as PW1 to PW22 and marked 43 documents as Ex.P1 to Ex.P43 and
nine material objects were produced as MO.1 to MO.9. On the side of the
defence, no witnesses were examined nor documents produced to substantiate
their case.
5.1. PW1 is the son of the deceased. PW2 is the daughter of the deceased
and PW3 is the wife of the deceased. PW6 is another son of the deceased. PW7
is the brother of the deceased. According to the prosecution, on 28.05.2018,
around 2.00 p.m, the accused with a criminal intention to commit robbery, had
caused the death of the deceased by causing injury in his skull using a heavy
stone and took away Rs.1,000/- which was in the pocket of the deceased and
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had also taken away Nokia cellphone of the deceased. To prove the case of the
prosecution, the prosecution had recovered the said amount of Rs.1,000/-
(Rs.500/- Note – 2 Nos) and the stolen cellphone which were marked as MO3
and MO5. The said material objects were recovered pursuant to the confession
statement given by the accused.
5.2. The body of the deceased was identified by PWs.1, 2, 3 and 6 to 8.
The complaint was given by PW1, who had seen the dead body and the
complaint was marked as Ex.P1 and thereafter, an FIR was registered which
was marked as Ex.P33. The Inspector of Police, who had conducted the
preliminary investigation, was examined as PW20. He had recorded the
statement of PWs.1 to 3 and thereafter, PW21 and PW22 had conducted further
investigation and examined the other witnesses.
5.3. PW20 recovered the body of the deceased in the presence of PWs.1
to 3 and sent the same to Government Hospital for conducting autopsy. PW19,
who conducted the post-mortem of the deceased, gave the post-mortem
certificate marked as Ex.P34. The viscera report was marked as Ex.P17 and
Ex.P18 to P21 are the biological and serology reports.
5.4. The statements of the witnesses, namely PWs.1, 2, 6, 7, 10, 12 and
13 were recorded by the learned Judicial Magistrate, which were marked as
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Ex.P22 to Ex.P29. To prove the recording of 164 statement, PW16, Judicial
Magistrate was examined.
6. Ms.N.Premalatha, the learned counsel appearing for the appellant
would contend that the appellant was convicted only based on the confession
statement, which led to the recovery of Rs.1,000/- which was marked as MO5
series and cellphone, MO3 along with the blood stained lungi, trouser and
baniyan which were produced as MO7 to MO9. The learned counsel contended
that the prosecution failed to prove last seen theory through the statements of
PW10 and the recovery from the accused. Therefore, there is no clinching
evidence produced to prove that the appellant has committed the murder of the
deceased.
7. The learned counsel contended that even in the chief examination of
PW10, the prosecution had not established that the deceased was seen along
with the accused. Therefore, in the absence of last seen alive theory, the
prosecution had miserably failed to prove that the accused had committed the
offence.
8. Per contra, the learned Additional Public Prosecutor appearing for the
prosecution, would contend that the evidence of PW1, who identified the
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deceased lying dead in their own land, has been corroborated by the evidence of
PWs.2, 3, 6, 7 and 8. The accused was arrested by the respondent police. From
the confession of the accused, MO2, cement mortar piece was recovered and
MO3, cellphone and MO5 series Rs.1,000/- (Rs.500/- notes x 2 Nos) and an
irregular stone weighing about 7 Kg with blood stain used for committing the
murder on the deceased by the accused, were also recovered.
9. Admittedly, though the prosecution has examined 22 witnesses, the
entire case rests on the evidence of PW10, who is the fulcrum of the
prosecution case to establish the guilt of the accused. On a plain reading of the
chief examination of PW10, he has not stated that the accused was seen along
with the deceased before the commission of the offence, or thereafter. The
evidence of PW10 is only that he has seen the accused and the deceased at
different intervals. The said evidence cannot be taken into consideration, as last
seen theory.
10. With regard to recovery of MOs.2 to 6, which were alleged to have
been recovered on the basis of the confession given by the accused along with
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MOs.7 to 9, it is not in dispute that the said recoveries are admissible in the eye
of law as per Section 27 of the Indian Evidence Act. However, except the
recovery based on the confession of the accused, there is no clinching evidence
to implicate the accused for the commission of the offence.
11. As per the prosecution, cement mortar piece with blood stain (MO1)
and cement mortar piece without blood stain (MO2) were recovered from the
place of occurrence under Ex.P38, seizure mahazar in the presence of PW5 and
one Kalavani, who is the Village Assistant. It is to be noted that the said Village
Assistant was not examined. The material objects marked as MO3 (cellphone),
MO5 (Rs.500 note x 2 Nos) and MO6, irregular stone weighing about 7 kg with
blood stain were recovered under Exs.P41, P40 and P42 respectively. PW13
and one Parthiban who is the friend of PW13 have signed as witnesses to all the
three recovery mahazars. However, the prosecution had chosen not to examine
the said Parthiban.
12. It is settled law that in the case of circumstantial evidence, several
circumstances should point towards the guilt of the accused without any break
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in the chain of circumstances pointing out the guilt as against the accused.
13. As the prosecution had not even produced a single witness to
establish the last seen theory, it is unsafe to convict the appellant only based on
the recoveries made pursuant to the extra judicial confession, which is a weak
piece of evidence. In the absence of any corroborating evidence, ocular witness
and the exhibits marked therein, it cannot be said that the prosecution had
proved its case. The evidence of PWs.1, 2, 6, 7, 10, 12 and 13 would only
reveal that all the witnesses have seen the dead body, there is not even a single
witness, who had seen the deceased and the accused together. That apart, the
above witnesses are none other than son, daughter, wife and brother of the
deceased.
14. It is relevant to rely upon the judgment of the Hon'ble Supreme Court
in State of Madhya Pradesh vs. Balveer Singh in Criminal Appeal No.1669 of
2012 dated 24.02.2025, in which the Hon’ble Apex Court, has held that unless
and until the guilt is pointed out as against the accused in the case of
circumstantial evidence, it is not safe to convict the appellant. In the said case,
the Hon'ble Supreme Court has held as follows:
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"61. Although there can be no straight jacket formula
for appreciation of circumstantial evidence, yet to convict an
accused on the basis of circumstantial evidence, the Court must
follow certain tests which are broadly as follows: -
(i) Circumstances from which an inference of guilt is
sought to be drawn must be cogently and firmly established;
(ii) Those circumstances must be of a definite tendency
unerringly pointing towards guilt of the accused and must be
conclusive in nature;
(iii) The circumstances, if taken cumulatively, should
form a chain so complete that there is no escape from the
conclusion that within all human probability the crime was
committed by the accused and none else; and
(iv) The circumstantial evidence in order to sustain
conviction must be complete and incapable of explanation of
any other hypothesis than that of the guilt of the accused but
should be inconsistent with his innocence. In other words, the
circumstances should exclude every possible hypothesis except
the one to be proved. [See: Sharad Birdhichand Sarda v. State
of Maharashtra reported in (1984) 4 SCC 116]
63. It is settled principle of law that an accused can be
punished if he is found guilty even in cases of circumstantial
evidence provided, the prosecution is able to prove beyond
reasonable doubt the complete chain of events and
circumstances which definitely points towards the involvement
or guilt of the accused. The accused will not be entitled to
acquittal merely because there is no eye witness in the case. It
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is also equally true that an accused can be convicted on the
basis of circumstantial evidence subject to satisfaction of the
expected principles in that regard.
64. Thus, in view of the above, the court must consider a
case of circumstantial evidence in light of the aforesaid settled
legal propositions. In a case of circumstantial evidence, the
judgment remains essentially inferential. The inference is
drawn from the established facts as the circumstances lead to
particular inferences. The Court has to draw an inference with
respect to whether the chain of circumstances is complete, and
when the circumstances therein are collectively considered, the
same must lead only to the irresistible conclusion that the
accused alone is the perpetrator of the crime in question. All
the circumstances so established must be of a conclusive
nature, and consistent only with the hypothesis of the guilt of
the accused.
15. As stated supra, the prosecution had miserably failed to prove the
case that the appellant has committed the crime in the manner known to law. In
the absence of any cogent and convincing material for the case of circumstantial
evidence, we are inclined to allow the appeal.
16. Accordingly, this appeal is allowed. The judgment of conviction and
sentence passed by the learned Additional district and Sessions Judge (FTC),
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Vellore District dated 11.11.2019 made in S.C. No.97 of 2019, is set aside. The
appellant shall be set at liberty, if his presence is not wanted in any other case.
The fine amount, if any, paid by the appellant herein, shall be returned to him
forthwith.
17. We appreciate the legal aid counsel for her sincere efforts and
assistance rendered to this court in disposing this criminal appeal. We hereby
direct the Tamil Nadu State Legal Services Authority to pay a sum of
Rs.10,000/- to Ms.N.Premalatha, Advocate towards the final hearing fees.
[M.S.R., J.] [N.S., J.]
18.06.2025
Asr
Index : Yes
Neutral citation : Yes
To
1.The Additional District and Sessions Judge (FTC),
Vellore District
2.The Inspector of Police
Palligonda Police Station
Vellore District
(Crime No.131 of 2018)
3.The Superintendent of Prisons,
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Central Prison, Vellore
4.The Public Prosecutor, High Court, Madras
Copy to:
Tamil Nadu State Legal Services
Authority
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M.S.RAMESH, J.
and
N.SENTHILKUMAR, J.
Asr
Dated : 18.06.2025
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