Research › Search › Judgment

Madras High Court · body

2026 DAILYLAW 53456 (MAD)

Thanu Selvam v. State of Tamil Nadu

2026-06-10

K K Ramakrishnan, N Anand Venkatesh

body2026
JUDGMENT : K.K. RAMAKRISHNAN, J. 1. The sole accused in S.C. No.279 of 2019 on the file of the learned III Additional District and Sessions Judge, Tirunelveli, has preferred the present appeal challenging the judgment dated 05.07.2023, whereby he was convicted for the offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo one month simple imprisonment. 2. Brief facts of the case: 2.1. The deceased, Ayyapan, was the younger brother of the accused. Since the accused was suffering from health issues, he remained unmarried. However, the deceased entered into a love marriage with P.W.1, and they were subsequently blessed with a child. According to the prosecution, the villagers used to tease the accused for remaining unmarried and allegedly referred him as a barren. This, coupled with the fact that the deceased continued to reside in the family house, created resentment and animosity in the mind of the accused towards his younger brother. 2.2. While so, on 25.09.2017 at about 3.15 p.m., the accused allegedly attacked the deceased with a billhook in the verandah of Vinayagar Temple situated on East Street, Ilayanayinarkulam Vadakkuur Village. The occurrence was witnessed by P.Ws.1 and 2 and other witnesses. On seeing them, the accused fled away from the scene of occurrence. The deceased succumbed to the injuries sustained in the attack. 2.3. Thereafter, P.W.1 lodged a complaint before P.W.17. On receipt of the complaint, P.W.17 registered a case and prepared the First Information Report, which was forwarded to P.W.18, the Investigating Officer. Upon receipt of the FIR, P.W.18 proceeded to the place of occurrence, prepared the Observation Mahazar and Rough Sketch, examined witnesses, and conducted inquest over the dead body in the presence of Panchayatdars. Thereafter, the body was sent for post-mortem examination. 2.4. P.W.16, the Doctor, conducted the post-mortem examination on 26.09.2017 at about 12.15 p.m. and issued the Post-Mortem Certificate. During the course of investigation, P.W.18 arrested the accused. Pursuant to the voluntary confession said to have been given by the accused, the weapon of offence, namely the billhook, and other material objects were recovered. The accused was thereafter remanded to judicial custody. 2.5. The Investigating Officer continued the investigation by examining the remaining witnesses and forwarding the material objects for chemical, serological and forensic examination. Pursuant to the voluntary confession said to have been given by the accused, the weapon of offence, namely the billhook, and other material objects were recovered. The accused was thereafter remanded to judicial custody. 2.5. The Investigating Officer continued the investigation by examining the remaining witnesses and forwarding the material objects for chemical, serological and forensic examination. After obtaining the reports from the Forensic Science Laboratory and the final opinion of the post- mortem doctor, P.W.18 laid the final report before the learned Judicial Magistrate, Valliyoor. 2.6. The learned Judicial Magistrate took cognizance of the case in P.R.C. No.144 of 2017. After furnishing copies of the documents to the accused under Section 207 Cr.P.C., the case was committed to the Court of Session under Section 209 Cr.P.C., since the offence was exclusively triable by the Court of Session. Subsequently, the case was made over to the learned III Additional District and Sessions Judge, Tirunelveli, and was taken on file as S.C. No.279 of 2019. The learned trial Judge, after securing the presence of the accused, framed the necessary charge. When questioned, the accused denied the charge and claimed to be tried. 2.7. In order to substantiate the charges, the prosecution examined P.Ws.1 to 18, marked Exs.P1 to P25 and produced M.Os.1 to 12. Upon completion of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses. The accused denied the same as false. No witness was examined nor any document was marked on the side of the defence. 3. Upon consideration of the oral and documentary evidence available on record, the learned trial Judge found the accused guilty of the offence under Section 302 IPC and, by the impugned judgment dated 05.07.2023, convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo simple imprisonment. Aggrieved by the said conviction and sentence, the present appeal has been filed. 4. Submission of the learned counsel appearing on behalf of the appellant: 4.1. Assailing the conviction and sentence imposed by the learned trial Judge, the learned counsel appearing for the appellant/accused submitted that the entire prosecution case rests upon the testimony of P.Ws. 1 and 2, who are projected as eyewitnesses to the occurrence. 4. Submission of the learned counsel appearing on behalf of the appellant: 4.1. Assailing the conviction and sentence imposed by the learned trial Judge, the learned counsel appearing for the appellant/accused submitted that the entire prosecution case rests upon the testimony of P.Ws. 1 and 2, who are projected as eyewitnesses to the occurrence. According to the learned counsel, the prosecution has failed to establish beyond reasonable doubt the very presence of P.Ws.1 and 2 at the scene of occurrence. Various circumstances emerging from the prosecution evidence itself render their presence highly doubtful and improbable. However, the learned trial Judge, without properly appreciating these infirmities, erroneously accepted their testimony and based the conviction thereon. 4.2. The learned counsel further contended that there was an unexplained delay both in the registration of the FIR and in its reaching the jurisdictional Court. Though the FIR is stated to have been registered at about 4.30 p.m. on the date of occurrence, it reached the Court only at about 9.00 p.m. According to the learned counsel, no satisfactory explanation has been offered by the prosecution for the said delay. Even the police constable entrusted with the duty of carrying the FIR to the Court has deposed that no explanation was sought from him regarding the delay. Therefore, the delay assumes significance and lends support to the defence plea of false implication. 4.3. The learned counsel also attacked the prosecution case regarding the arrest of the accused and recovery of the weapon of offence. According to him, the evidence on record indicates that the accused was already in police custody even before the registration of the FIR. Therefore, the alleged arrest, confession and consequential recovery of material objects are artificial and cannot be accepted as genuine. 4.4. The learned counsel further submitted that, according to the prosecution, the deceased along with P.Ws.1 and 2 had gone to the village to visit the newly-born child of the sister of the accused and the deceased. However, no evidence whatsoever has been adduced to establish that child was in fact born. Significantly, the sister was not examined before the Court. Therefore, the very reason assigned by the prosecution for the presence of the deceased and P.Ws.1 and 2 at the place of occurrence remains unsubstantiated. 4.5. The learned counsel also challenged the motive projected by the prosecution. Significantly, the sister was not examined before the Court. Therefore, the very reason assigned by the prosecution for the presence of the deceased and P.Ws.1 and 2 at the place of occurrence remains unsubstantiated. 4.5. The learned counsel also challenged the motive projected by the prosecution. According to the prosecution, the accused was suffering from ill-health, remained unmarried and was mocked by the villagers, who allegedly referred him as a barren, which led to animosity against the deceased. However, there is no acceptable evidence to establish either the alleged illness or the motive attributed to the accused. Therefore, the prosecution has failed to prove the motive in the manner known to law. 4.6. The learned counsel further pointed out that the conduct of P.Ws.1 and 2 was wholly unnatural. Though they claim to have witnessed the attack, they neither attempted to rescue the deceased nor made any effort to immediately take him to the hospital. According to the learned counsel, such conduct is inconsistent with the normal human conduct behaviour and creates serious doubt regarding their presence at the scene of occurrence. In all, the prosecution has failed to establish the guilt of the accused beyond reasonable doubt and, therefore, the appellant is entitled to the benefit of doubt. 5. Submission of the learned Additional Public Prosecutor: 5.1. Per contra, the learned Additional Public Prosecutor supported the judgment of conviction and sentence passed by the learned trial Judge. He submitted that P.Ws.1 and 2 have spoken clearly and consistently about the occurrence and nothing substantial has been elicited in their cross-examination to discredit their testimony. Their evidence stands fully corroborated by the medical evidence as well as the other surrounding circumstances. 5.2. The learned Additional Public Prosecutor further submitted that the prosecution has satisfactorily established the arrest of the accused and the recovery of the weapon of offence. Merely because some of the witnesses have turned hostile, the otherwise reliable and cogent testimony of P.Ws.1 and 2 cannot be discarded. 5.3. With regard to the delay in the FIR reaching the Court, the learned Additional Public Prosecutor submitted that the same has been properly explained. The learned trial Judge has rightly taken note of the fact that the jurisdictional Judicial Magistrate was not available and, therefore, the FIR had to be forwarded to the Judicial Magistrate, Nanguneri. 5.3. With regard to the delay in the FIR reaching the Court, the learned Additional Public Prosecutor submitted that the same has been properly explained. The learned trial Judge has rightly taken note of the fact that the jurisdictional Judicial Magistrate was not available and, therefore, the FIR had to be forwarded to the Judicial Magistrate, Nanguneri. Consequently, the FIR, though registered promptly at about 4.30 p.m., reached the Court at about 9.00 p.m. and no adverse inference can be drawn from the said circumstance. 5.4. The learned Additional Public Prosecutor further contended that the non-examination of the sister of the accused and the deceased is not fatal to the prosecution case, especially when the testimony of P.Ws.1 and 2 inspires confidence and is supported by the medical evidence. According to him, the learned trial Judge has meticulously analysed the entire oral and documentary evidence and rightly concluded that it was the accused who committed the offence. Therefore, no interference is warranted with the well-reasoned judgment of conviction and sentence passed by the trial Court, and the appeal deserves to be dismissed. 6. This Court has carefully considered the rival submissions advanced on either side and perused the entire materials available on record, including the oral and documentary evidence. 7. Discussion: 7.1. The prosecution case is that the appellant, owing to certain health issues, remained unmarried, whereas the deceased, who was his younger brother, entered into love marriage with P.W.1 and was blessed with a child. According to the prosecution, the villagers used to tease the appellant for remaining unmarried and referred him as a barren person. On account of such humiliation, the appellant allegedly developed animosity towards the deceased. It is further the case of the prosecution that frequent quarrels arose between the brothers, compelling the deceased to leave the village and reside along with P.W.1 in another village. 7.2. According to the prosecution, on 25.09.2017, the deceased, along with P.Ws.1 and 2, visited the village of the appellant to see the newly-born child of the sister of both the appellant and the deceased. It is stated that while they were in the house, a wordy altercation erupted between the appellant and the deceased. Thereafter, owing to a power failure in the village, the deceased proceeded to the verandah of Vinayagar Temple to sleep. It is stated that while they were in the house, a wordy altercation erupted between the appellant and the deceased. Thereafter, owing to a power failure in the village, the deceased proceeded to the verandah of Vinayagar Temple to sleep. At about 3.30 a.m., P.Ws.1 and 2 allegedly heard the cry of the deceased that he was being cut. On rushing to the place of occurrence, they allegedly witnessed the appellant attacking the deceased with an aruval. On seeing them, the appellant fled away from the scene. The deceased succumbed to the injuries and P.W.1 lodged the complaint under Ex.P1. 7.3. At the outset, this Court finds that the motive projected by the prosecution is not free from doubt. The prosecution case proceeds on the footing that the appellant remained unmarried due to health issues and therefore developed resentment against the deceased, who was married and leading a family life. However, the evidence available on record discloses that the appellant was subjected to a potency test and was found capable of having normal marital life. Thus, the very foundation of the motive projected by the prosecution does not stand established through acceptable evidence. Though motive loses significance where there is reliable direct evidence, in a case where the prosecution principally relies upon interested eyewitnesses, failure to establish the alleged motive assumes importance. 7.4. Another circumstance which creates a serious doubt in the prosecution case relates to the very presence of P.Ws.1 and 2 in the village at the relevant point of time. The prosecution would contend that they accompanied the deceased to visit the newly-born child of the sister of the appellant and the deceased. Strangely, no evidence has been adduced to prove that such a child was in fact born. More importantly, the sister was not examined by the prosecution. The reason assigned by the prosecution for the visit of the deceased and P.Ws.1 and 2 to the village, therefore, remains unsubstantiated. This omission assumes significance because, admittedly, the deceased had been residing elsewhere. The prosecution has given a reason that the presence of the deceased and P.Ws.1 and 2 in the village was to see the newly-born child. Once such foundational fact remains unproved, the very presence of P.Ws.1 and 2 at the scene of occurrence becomes doubtful. 7.5. The conduct attributed to P.Ws.1 and 2 also does not inspire confidence. The prosecution has given a reason that the presence of the deceased and P.Ws.1 and 2 in the village was to see the newly-born child. Once such foundational fact remains unproved, the very presence of P.Ws.1 and 2 at the scene of occurrence becomes doubtful. 7.5. The conduct attributed to P.Ws.1 and 2 also does not inspire confidence. According to them, they witnessed the appellant inflicting fatal cut injuries upon the deceased and thereafter fled from the place of occurrence. However, neither of them made any attempt to ascertain whether the deceased was alive nor did they take any steps to secure immediate medical assistance. P.W.2 has categorically admitted that he did not even verify the condition of the deceased. Such conduct appears unnatural and inconsistent with the normal human conduct and this conduct casts a cloud of doubt over their claim of having witnessed the occurrence. 7.6. Further, the prosecution has not examined certain material and independent witnesses, namely Madathi and Esakkiammal, who were stated to be available in the vicinity. Equally significant is the fact that the father of the deceased and the appellant did not support the prosecution version regarding the presence of P.Ws.1 and 2. P.W.3 even denied the alleged marriage between P.W.1 and the deceased, while P.W.4 was also not categorical regarding the same. These circumstances further weaken the prosecution version regarding the presence of P.W.1 at the relevant time. 7.7. This Court also finds force in the contention regarding the delay in the FIR reaching the Court. Though delay by itself may not always be fatal, its significance depends upon the facts of each case. In the present case, where the presence of the eyewitnesses itself is under serious doubt, the delay assumes importance. According to the prosecution, the complaint was lodged at about 4.30 p.m. and the FIR was immediately registered. However, the FIR reached the Court only at about 9.00 p.m. The evidence regarding its transmission is not free from contradictions. P.W.17 deposed that the FIR was entrusted to P.W.10 to be delivered and he went in a motorcycle. However, P.W.10 stated that he travelled by bus to Valliyoor and thereafter proceeded to Nanguneri upon learning that the Judicial Magistrate was not available. These contradictions assume relevance in view of the defence plea that the FIR was brought into existence subsequently and that the appellant was falsely implicated. 7.8. However, P.W.10 stated that he travelled by bus to Valliyoor and thereafter proceeded to Nanguneri upon learning that the Judicial Magistrate was not available. These contradictions assume relevance in view of the defence plea that the FIR was brought into existence subsequently and that the appellant was falsely implicated. 7.8. The defence version gains some support from the evidence of P.Ws.1 and 2 themselves, who have stated that the appellant was already present in the police station before the complaint was lodged. If that version is accepted, the subsequent arrest, confession and recovery projected by the prosecution become highly doubtful. The prosecution has also failed to satisfactorily explain these inconsistencies relating to the arrest and recovery. The evidence of the Investigating Officer regarding the arrest and recovery does not inspire confidence in the backdrop of the admissions made by P.Ws.1 and 2. Consequently, the alleged recovery of the weapon of offence cannot be treated as a circumstance conclusively connecting the appellant with the crime. 7.9. The evidence on record further indicates that the deceased was habituated to consuming alcohol and had quarrels earlier with many persons. Though such circumstance by itself cannot exonerate the appellant, it certainly gives room for the possibility of alternative hypotheses, particularly when the prosecution evidence suffers from serious infirmities. Criminal jurisprudence mandates that suspicion, however strong, cannot take the place of proof. The prosecution is required to establish the guilt of the accused beyond reasonable doubt. In the present case, the doubtful motive, the failure to establish the reason for the presence of P.Ws.1 and 2, the unnatural conduct of PWS 1 and 2, the non-examination of material witnesses, the contradictions regarding the transmission of the FIR, and the doubtful circumstances surrounding the arrest and recovery cumulatively create a reasonable doubt regarding the prosecution case. 7.10. In such circumstances, this Court is of the considered view that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt. The appellant is therefore entitled to the benefit of doubt. 8. Conclusion: 8.1. Accordingly, the Criminal Appeal is allowed. The conviction and sentence imposed upon the appellant under Section 302 of IPC by the learned III Additional District and Sessions Judge, Tirunelveli, in S.C. No. 279 of 2019, by judgment dated 05.07.2023, is set aside. 8.2. The appellant is acquitted of all the charges levelled against him. 8.3. 8. Conclusion: 8.1. Accordingly, the Criminal Appeal is allowed. The conviction and sentence imposed upon the appellant under Section 302 of IPC by the learned III Additional District and Sessions Judge, Tirunelveli, in S.C. No. 279 of 2019, by judgment dated 05.07.2023, is set aside. 8.2. The appellant is acquitted of all the charges levelled against him. 8.3. The fine amount, if any paid, shall be refunded. The bail bond, if any, shall stand cancelled. 8.4. The appellant shall be released forthwith unless his custody is required in connection with any other case.