[Cites 7, Cited by 0]
Madras High Court
Rathinaraj vs State Through on 21 January, 2026
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.A(MD)No.522 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 06.01.2026
PRONOUNCED ON : 21.01.2026
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)No.522 of 2022
and
Crl.M.P(MD)No.2332 of 2024
Rathinaraj ... Appellant/Sole Accused
Vs.
State through,
The Inspector of Police,
Vilathikulam Police Station,
Thoothukudi District.
(In Crime No.79 of 2020). ... Respondent/Complainant
PRAYER:- Criminal Appeal is filed under Section 374 of Cr.P.C to
call for the entire records connected to the Judgment in S.C.No.235
of 2020 dated 28.04.2022 on the file of the II Additional District and
Sessions Court, Thoothukudi and set aside the conviction and
sentence imposed against the appellant.
1/20
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Crl.A(MD)No.522 of 2022
For Appellant : Mr.R.Manikaraj
for Mr.R.Alagumani
For Respondent : Mr.R.Meenakshi Sundaram
Additional Public Prosecutor
JUDGMENT
(Judgment of the Court was delivered by
G.K.ILANTHIRAIYAN, J.)
This appeal is directed as against the Judgment passed in
S.C.No.235 of 2020 dated 28.04.2022 on the file of the II Additional
District and Sessions Court, Thoothukudi.
CASE OF THE PROSECTION:
2.The case of the prosecution is that the appellant (the
accused herein) and the De-facto Complainant/P.W.1 are brothers.
On 22.02.2020, at about 09:00 a.m., the appellant had allegedly
taken the children of P.W.1 to the well for taking bath and for
teaching them swimming, but the children did not return home that
day. Allegedly, the appellant had pushed the two children into the
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well that belongs to one Vidyasekar, making them drown to death.
Thereafter, P.W.1 had searched for his children and subsequently
lodged a complaint before the respondent for which an F.I.R was
registered in Crime No.79 of 2020. Later the dead bodies of the two
children were found and recovered from the well. The Charge sheet
was filed in S.C.No.235 of 2020 before the learned Additional
District and Sessions Judge, Thoothukudi District.
3.To bring the charges to home, the prosecution examined
P.W.1 to P.W.27 and marked Ex.P.1 to Ex.P.31 and Material Objects
M.O.1 to M.O.7. On the side of the accused, no witnesses were
examined and no documents were marked.
4.On perusal of the oral and documentary evidence, the
Trial Court found the appellant guilty for the offence punishable
under Section 302 of IPC for two counts and sentenced him to
undergo life imprisonment (2 counts) along with fine of Rs.200/-
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and in default of the same, to undergo three months simple
imprisonment. Aggrieved by the same, the present appeal has been
filed.
SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR
THE APPELLANT:
5.The learned counsel for the appellant submitted various
grounds to make his case before this Court. It was submitted that the
prosecution failed to establish the motive for the alleged occurrence
to hold the appellant guilty and that the Trial Court had convicted
the appellant only on the basis of circumstantial evidences. It was
pointed out that none of the witnesses who were examined by the
prosecution had whispered about the actual motive of the appellant
to do the alleged offence. It was stated that no eye witness was
examined by the prosecution who witnessed the direct involvement
of the appellant in this case despite the possible presence of number
of people around the place of occurrence. Further, prosecution
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witnesses such as P.W.4, P.W.5 and P.W.10 have also turned hostile
by not supporting the case of the prosecution.
6.P.W.1 is the father of the deceased children, P.W.2 is the
first wife of P.W.1 and the mother of one of the deceased children
and P.W.3 is second wife of P.W.1 and sister of P.W.2 and the mother
of another deceased child. Even they did not directly see the alleged
occurrence and P.W.2 and P.W.3 have only seen the appellant taking
the children away.
7.It was further stated that P.W.9 who resides in the same
village has deposed that he saw the appellant taking the deceased
children towards the well while he was heading out to work but the
said statement cannot be legitimate as the occurrence took place
during the COVID-19 pandemic and all workplaces would have
been shut down due to the lockdown. It was also pointed out that the
statements of the witnesses under Section 161(3) of Cr.P.C did not
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reach the learned Judicial Magistrate right away and there was an
undue delay of 4 months and the reason for delay was not properly
explained by the respondent.
8.He submitted that P.W.17 is the fireman who recovered
the two dead bodies of the deceased children. He has clearly stated
in his cross examination that at the time of recovery both the bodies
had no clothes. This will mean that the children would have
voluntarily entered the well for taking bath. There are contradictions
in the timings stated by P.W.17 and P.W.1. P.W.1 had stated that he
went to the police station after 08.30 p.m., on the day of occurrence
for lodging the complaint, but P.W.17 had already reached the place
of occurrence at about 8.25 p.m., in search of the bodies. Therefore,
he submitted that the prosecution has failed to prove the case beyond
reasonable doubt and prays for this Court to set aside the sentence
imposed by the Trial Court.
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SUBMISSIONS MADE BY THE LEARNED ADDITIONAL
PUBLIC PROSECUTOR:
9. Per contra, the learned Additional Public Prosecutor
appearing for the respondent submits that the appellant was the one
who caused the death of deceased children by making them drown to
death and the minor contradictions are not fatal to the case of the
prosecution. The case of prosecution is based on a complete chain of
highly incriminating circumstances which irrefutably point towards
the guilt of the appellant and after scrutinizing the entire oral and
documentary evidence on record, the Trial Court rightly convicted
the appellant, and it does not warrant any interference of this Court.
10. He further stated that the delay in recording the 161
statements of the witnesses will not deplete the strength of the
prosecution case if the reason for the delay is stated by the
investigation officer. In this regard he relied upon the judgement of
this Court in the case of D. Sudhakar & Ors v. The State of Tamil
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Nadu reported in CDJ 2014 MHC 1123, the relevant paragraph of
the said judgement is extracted hereunder:
“23. The learned Senior Counsel for the
appellants submitted that the statements of the
witnesses had reached the Court only on 27.12.2010
and therefore, the evidence of these witnesses
become suspect. We are unable to countenance this
argument, because mere delay by the police in not
sending the 161 statement to the Court cannot lead
to any inference that the witnesses are not
trustworthy. In fact, in Raman and Yadav vs.
Prabhunath Jha [2004 MLJ Crl. 284 SC] even while
dealing with the delay in recording the 161 statement
of witnesses, the Supreme Court has said that unless
the Investigating Officer is categorically asked as to
why there was a delay in examination of the
witnesses, the defence cannot gain any advantage
therefrom. When that is the legal position, even with
regard to the delay in recording the statement of
witnesses, mere delay in sending the 161 statements
to the Court cannot ipso facto make the evidence of
the eye witnesses suspect. In any event the complaint
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and FIR given by the injured eyewitness, P.W.1,
contained the entire prosecution version and it had
reached the Court at 22.40 hrs on 26.07.2010
without delay.”
11. Heard the learned counsel for the appellant and the learned
Public Prosecutor appearing for the respondent and also perused the
materials available on record.
DECISION AND CONCLUSION:
12. The specific case of the prosecution is that the appellant
and the de-facto complainant/P.W.1 are brothers. On 22.02.2020, at
about 10:00 a.m., the appellant had allegedly taken the children of
P.W.1 to the well for taking bath and for teaching them swimming,
but the children did not return home that day. Allegedly, the
appellant had pushed the two children into the well that belongs to
one Vidyasekar, making them drown to death. Thereafter, P.W.1 had
searched for his children and subsequently lodged a complaint
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before the Respondent for which an F.I.R was registered in Crime
No.: 79/2020. Later the dead bodies of the two children were found
and recovered from the well.
13. To move forward, this Court is inclined to form the
following issues in furtherance of deciding the case on hand:
“i. Whether the prosecution proved the motive of
the appellant to incriminate him in the said offence?
ii.Whether the evidences submitted by the
prosecution irrefutably points towards the guilt of the
appellant?”
14. On perusal of the evidences, it is seen that none of the
prosecution witnesses have seen the appellant murdering the
deceased children or pushing them into the well or even taking them
into the well. Further, P.W.1 to P.W.3 have neither whispered
anything about the motive of the appellant nor any previous
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incidents that could have led to this unfortunate incident. Evidence
as to motive would, no doubt, go a long way in cases wholly
dependent on circumstantial evidence. Such evidence would form
one of the links in the chain of circumstantial evidence in such a
case. In the case on hand, the entire case of the prosecution is based
only on circumstantial evidence.
15. There has been an extra judicial confession to the
V.A.O after the alleged occurrence that the appellant and P.W.3 were
in an illicit relationship but this statement was not proved during the
course of trial. It is an accepted principal of law that an extra judicial
confession cannot be used as sole evidence to convict an accused
unless it is well corroborated with other strong evidences before the
Court of Law. The same is held by the Hon’ble Supreme Court in the
Case of Kalinga @ Kushal v. State of Karnataka (2024 INSC 124)
and the relevant parts of the judgement are extracted hereunder:
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“So far as an extra judicial confession is
concerned, it is considered as a weak type of
evidence and is generally used as a corroborative
link to lend credibility to the other evidence on
record.”
16. Further, on perusal of the evidence of P.W.9, he has
deposed that he saw the appellant and the deceased children together
while he was heading out to work. As rightly pointed out by the
learned counsel for the appellant, it unbelievable that a person has
gone to work during the lockdown amidst the COVID-19 pandemic.
The chief examination of P.W.9 is as follows:
“ehd; mad; nghk;ikahGuk;
fhydpnjUtpy; FbapUe;J tUfpNwd;.
ehd; ];tl P ; filapy; ifahshf Ntiy
ghu;j;J tUfpNwd;. m.rh.1 Kjy; 3I njupAk;.
mtu;fsJ Foe;ijfis njupAk;. ,t;tof;fpy;
,we;JNghd rpWtu;fs; rPNkhd; my;Nghd;];
kw;Wk; vl;tpd; N[hrg; MfpNahu;fis njupAk;.
rhl;rp fhspak;khis njupAk;. 22 Mk; Njjp
khu;r; khjk; 2020 Mk; tUlk; fhiyapy; Rkhu;
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9> 9.30 kzpatpy; ,t;tof;fpy; ,we;JNghd 2
rpWtu;fSk;> M[u; vjpupAld; mtu;fs;
tPl;bypUe;J njw;Nf cs;s vq;fs; Cu;
rj;jpuj;J Kjyhsp vd;W nrhy;Yk; egupd;
Njhl;lj;jpy; cs;s fpzw;Wf;F Fspf;f
Nghdhu;fs;. mij ehd; Ntiyf;F
NghFk;NghJ ghu;j;Njd;. gpwF Ntiyf;F
Ngha;tpl;L jpUk;gp te;jTld;> Nkw;gb
rpWtu;fis M[u;vjpup fpzw;wpy; js;sp
tpl;ljhf $l;lkhf Ngrpf;nfhz;lhu;fs;.
md;W ,uT fpzw;Wf;
Fs;spypUe;J ,isatdhd vl;tpd; N[hrg;ig
gau;ru;tP];f;fhuu;fs; kPll; hu;fs;. kw;nwhU
igadhd rPNkhd; my;Nghd;i] tpbaw;fhyk;
fpzw;wpypUe;J kPll
; hu;fs;. mjd;gpwF
M[u;vjpupia ifJ nra;jjhf
Nfs;tpg;gl;Nld;. ,J rk;ge;jkhf Ma;thsh;
vd;id tprhhpj;jhh;.”
17. In this regard, Section 106 of the Indian Evidence Act,
1872 clearly provides that when a fact lies especially within the
knowledge of a person, the burden of proving that fact rests upon
him. Accordingly, P.W.9 should have made an explanation of the
scene clearly and the explanation so furnished must be reasonable,
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probable, and satisfactory in the opinion of the Court. In this present
case, the statement of P.W.9 is nothing but vague and the prosecution
also has miserably failed prove it by corroborating it with more
credible evidences.
18. It is also a settled principle of law that the conviction
cannot be based only on the fact that the appellant was last seen
together with the deceased. In “Arjun Marik v. State of
Bihar” [1994 Supp (2) SCC 372], 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.”
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19. Further, it is important to elaborate more on the credibility
of the last seen theory evidences as the Trial Court had convicted the
appellant predominantly based on the same. 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. The prosecution
has definitely failed in this regard as the recovery of bodies has been
made much time after P.W.9 last saw the appellant with the deceased.
Therefore, this Court cannot entirely rule out the possibility that the
children could have gone on their own inside the well for taking bath
but drowned to death due to lack of assistance and swimming skills
as the bodies were recovered without clothes as stated by P.W.17. It
cannot be assumed that the appellant who was trying to kill the
children would have removed and thrown the clothes away before
pushing them inside.
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20. It is also crucial to note that, on perusal of the F.I.R/Ex.
P22, it is revealed that the complaint was received by the respondent
at about 08:30 p.m but P.W.17 had reached the place of occurrence at
08:25 p.m. This particular contradiction further adds up to the
weakness of the case of the prosecution. Further, on perusal of the
evidence of P.W.22/Investigation Officer, it is revealed that the there
was almost 6 months delay in submitting the 161 statements of the
witnesses to the learned Judicial Magistrate. This delay in our view
is also fatal to the case of the prosecution as there has been no
reasoned explanation by the IO in this regard and hence, Judgment
relied by the learned Additional Public Prosecutor is not applicable
to the case on hand.
21.Therefore, the prosecution has failed to convince this Court
beyond reasonable doubts as to why someone kill his own brother’s
sons.
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22. When the conviction is to be based on circumstantial
evidence solely, then there should not be any snap in the chain of
circumstances. If there is a snap in the chain, the accused is entitled
to the benefit of doubt. If some of the circumstances in the chain can
be explained by any other reasonable hypothesis, then also the
accused is entitled to the benefit of doubt. But in assessing the
evidence, imaginary possibilities have no place. In criminal
jurisprudence, the burden is always on the prosecution to prove its
case beyond reasonable doubt. When two views are possible and the
one favourable to the accused is equally plausible, the benefit of
doubt must necessarily go to the accused. In the present case, the
prosecution has failed to discharge its burden convincingly, and the
Trial Court had also failed to properly appreciate the infirmities in
the prosecution case. Therefore, the conviction and sentence
awarded by the Trial Court in respect of all the charges against the
appellant cannot be sustained and are liable to be set aside.
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23. In view of the above, the conviction and sentence
passed in S.C.No. 235 of 2020 dated 28.04.2022 on the file of the
Learned II Additional District and Sessions Judge,
Ramanathapuram, is hereby set aside. The appellant is acquitted of
the charges under Section 302 of IPC. The appellant/accused is
directed to be set at liberty forthwith, unless his custody is otherwise
required in connection with any other case. The fine amount, if any
paid, shall be refunded to the appellant forthwith. The bail bond, if
any executed, shall stand cancelled. The appellant shall be set at
liberty forthwith, if he is no longer required in connection with any
other case.
24. In the result, this Criminal Appeal stands allowed.
Consequently, connected Miscellaneous Petition is closed.
[G.K.I.J.,] & [R.P.J.,]
21.01.2026
NCC :Yes/No
Index :Yes/No
ps
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To
1.The II Additional District and Sessions Court,
Thoothukudi.
2.The Inspector of Police,
Vilathikulam Police Station,
Thoothukudi District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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G.K. ILANTHIRAIYAN, J.
AND
R. POORNIMA, J.
ps
Pre-Delivery Judgment made in
21.01.2026
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