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582 MADRAS WEEKLY NOTES (CRIMINAL) 2023 (3) MWN (Cr.)

2023 (3) MWN (Cr.) 582 (DB)

IN THE HIGH COURT OF MADRAS
M. Sundar & R. Sakthivel, JJ.
Crl.A. No.30 of 2021
25.9.2023
Anjalai …..Appellant
Vs.
State by the Inspector of Police, Vadalur Police Station, Cuddalore District [Crime
No.241/2016] …..Respondent
Appeal against Conviction
Murder — Circumstantial evidence as projected by prosecution, if, established beyond
reasonable doubt — Sustainability of Conviction.

INDIAN PENAL CODE, 1860 (45 of 1860), Section 302 — Charge

under — If, proved beyond reasonable doubt — Prosecution case
resting on Circumstantial evidence — Live in relationship between
Accused and deceased and living without marriage as per Prosecution
case — That, deceased entered into relationship with another woman/Y
and stopped visiting Accused’s house — Accused quarreled with Y and
deceased in turn quarreled with Accused — Provoked by act of
deceased, Accused allegedly killed deceased with Knife while he was
sleeping — Living together : PWs.3 & 4/Brother & Sister of deceased,
though deposed that deceased had relationship with Accused, failed to
prove that both lived under one roof without marriage — Last seen
together : House Owner/LW3 examined : Statement under Section
161(3) though recorded on 23.6.2016, sent to Court only in August 2016
: Creates doubt as to whether IO/PW10 examined LW3 : Moreover
LW3 died even prior to commencement of trial : Evidence of PW2 in
this regard only after thought and does not inspire confidence of Court :
Last seen together on night of 22.6.2016 and Accused leaving house on
next day morning, not established — PW5/ Councillor visiting Accused’s
house and seeing dead body of deceased : Evidence of PW5 having seen
dead body in Accused’s house though corroborated by PWs.1, 2 & 10,
no corroboration to evidence that he had seen Accused and deceased
fighting with each other two days prior to occurrence — PW10/IO
visiting scene of occurrence and collecting MOs 1 to 8 : PW10 though
visited scene of occurrence and conducted Inquest, failed to prove
occurrence happened inside Accused’s house — Arrest, Confession &
Recovery : Accused allegedly arrested on 23.6.2016 at 3.30 p.m. gave
Confession in presence of PW7 : PW7, examined to prove Confession and
Disclosure Statement, not supported case of prosecution : Moreover,
PW1 stated in evidence that he saw Accused in Police Station on 23.6.2016
at 8 a.m. : Arrest as alleged belied : MO9/Knife not subjected to Chemical

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analysis to connect same to crime : Arrest, confession and seizure,
therefore, doubtful — Burden on Accused to prove fact especially within
her knowledge under Section 6, Evidence Act : Onus of proof shifts to
Accused only when Prosecution proved its case beyond reasonable doubt :
In instant case, Prosecution failed to establish circumstances projected
beyond reasonable doubt : Onus of proof cannot shift to Accused —
Motive: Relationship of deceased with Y said to be motive : PWs.3 & 4
though examined to prove motive, their evidence failed to establish same :
Motive, not proved — Held, prosecution failed to establish chain of
circumstances and prove case beyond reasonable doubt — Conviction
liable to be set aside. (Paras 9 to 11)
EVIDENCE ACT, 1872 (1 of 1872), Section 106 — Fact especially within
knowledge of Accused — Onus of proof — Shifts to Accused only when
involvement of Accused proved beyond reasonable doubt — In instant
case, Last Seen Theory, Arrest and Recovery not proved by prosecution
— Onus of prove not shifted to Accused — Failure of Accused to enter
Witness box and prove her defence of no consequence. [Para 9(viii)]
CASES REFERRED
Ambalal v. Union of India, AIR 1961 SC 264............................................................................ 9
Govindha Reddy v. State of Mysore, AIR 1960 SC 29 .............................................................. 7
Shaik Mastan Vali v. State of Andhra Pradesh, 2007 (9) SCC 342 ........................................... 8
State of Punjab v. Kewal Krishnan, 2023 SCC Online SC 746.............................................. 4, 9
R. Bharath Kumar, Advocate for Appellant.
A. Gokulakrishnan, Additional Public Prosecutor for Respondent.
Finding — Cr. Appeal allowed.
Prayer : Criminal Appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973, praying to
set aside the Conviction and Sentence imposed in the Judgment, dated 17.12.2020 passed in Sessions
Case No.378 of 2018, on the file of the I Additional District and Sessions Judge, Cuddalore.
Judgment Reserved on 30.8.2023 and Pronounced on 25.9.2023
JUDGMENT
R. Sakthivel, J.
1. This Criminal Appeal is preferred by the Appellant/Sole Accused in S.C.
No.378 of 2018 on the file of I Additional District and Sessions Judge,
Cuddalore, assailing the Judgment passed by the learned Sessions Judge on
17.12.2020 in which she was convicted and sentenced to Undergo
Imprisonment for Life and Fine of `2,000, in default, to undergo six months’
Simple Imprisonment for the offence under Section 302 of ‘the Indian Penal
Code (45 of 1860)’ [hereinafter referred to as ‘I.P.C.’ for the sake of brevity].
2. The case of the Prosecution, in brief, is as follows:
(i) The deceased Gunasekaran and the Appellant/Accused were living
together as Husband and Wife without marriage in Kurinjipadi, Vadalur

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and Periyakurichi in rental houses. In the meantime, the deceased entered

into a relationship with a woman YY (name masked for the sake of
privacy) and did not visit the Appellant/Accused house regularly for the
past six months prior to the occurrence. The Appellant/Accused was
residing in a house at Muthu Reddy Street, Vadalur, as a Tenant under
one Tmt. Kaliyammal (LW3). As the Appellant/Accused quarreled with
YY, the deceased Gunasekaran in turn quarreled with the
Appellant/Accused and assaulted her. On 22.6.2016 at 10.00 p.m.,
deceased Gunasekaran came to the house of the Appellant/Accused,
quarreled and assaulted the Appellant/Accused. This Act of the deceased
provoked the Appellant/ Accused to do away the life of the deceased
Gunasekaran. On 23.6.2016 at about 1.00 a.m., when the deceased was
sleeping in the house of the Appellant/Accused, the Appellant/Accused
with an intention to murder him, has made two cut injuries on his neck
and chest by Knife knowing well that her acts would likely cause his
death. Hence, the Charge under Section 302 of I.P.C., against the
Appellant/Accused;
(ii) The learned Sessions Judge framed Charge against the Appellant/
Accused under Section 302 of I.P.C. and questioned her under Section
228(2) of ‘the Code of Criminal Procedure, 1973’ [hereinafter ‘Cr.P.C.’
for the sake of brevity, convenience and clarity]. Since the Appellant/
Accused denied the charges and pleaded not guilty, trial was ordered;
(iii) With a view to prove the case, Prosecution examined ten Witnesses
as PW1 to PW10 and Ex.P1 to Ex.P14 Documents and MO1 to MO9
were marked;
(iv) After hearing both sides, the learned Sessions Judge came to the
conclusion that the Prosecution has proved the charge under Section 302
of I.P.C., against the Appellant/Accused. Therefore, the learned Sessions
Judge convicted and sentenced the Appellant/Accused to undergo
Imprisonment for Life and also imposed a Fine of `2,000, in default of
payment of Fine, to undergo Simple Imprisonment for six months; and
(v) Feeling aggrieved with the conviction and sentence passed by the
learned I Additional District and Sessions Judge, Cuddalore, the
Appellant/Accused preferred this Criminal Appeal.
3. The points that arise for consideration in this Appeal are as follows:
(i) Whether the Prosecution has proved the charge under Section 302,
I.P.C., against the Appellant/Accused beyond reasonable doubt ?
(ii) Is there any reason to interfere with the Trial Court Judgment ?
Discussion and decision for Point Nos.(i) & (ii):
4. Learned Counsel for the Appellant/Accused has argued that the
Appellant/Accused has not committed any offence as alleged; that the
learned Sessions Judge has not considered the evidence properly; that the

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deceased might have been killed by some other person; that the Appellant/
Accused, in fact went to the Police Station and informed the occurrence; that
the Investigating Officer without conducting proper Enquiry and without
hearing the Appellant/Accused has registered FIR against the Appellant/
Accused; that the PW5 is Stock Witness of the Police and his evidence
cannot be relied upon; that the learned Sessions Judge has believed the
evidence of PW5 and came to the conclusion that the Appellant has
committed the offence; that the Prosecution has not proved the statement of
Late Kaliyammal (LW3), who is the important Witness in this case. He
further argued that in and around the alleged place of occurrence, many
residential houses are there but the Investigating Officer has not examined
any person residing in the locality, which creates doubt over the Prosecution
case. Learned Counsel further argued that in this case, there are no Eye-
witnesses and Prosecution case is rested solely on the Circumstantial
evidences and the alleged circumstances have not been clearly established by
the Prosecution. He further argued that the investigation had not been
conducted properly and finger print had not been collected from the scene of
occurrence and from the MO1. The sum and substance of the submission of
learned Counsel is that the investigation is a defective one which caused
prejudice to the Accused. Accordingly, he has prayed to allow the Appeal
and interfere with the Judgment of learned Sessions Judge and acquit the
Accused. In support of his argument, learned Counsel has relied on a case
law in State of Punjab v. Kewal Krishnan, 2023 SCC Online SC 746.
5. Learned Additional Public Prosecutor for the Respondent/State has
submitted that the occurrence took place at 1.00 a.m. (mid night) on
23.6.2016 in the house of the Appellant/Accused. The Appellant/Accused
and the deceased were living under one roof without marriage. Further,
Prosecution has established that the deceased died due to cut injury caused to
him by examining the Post-Mortem Doctor; that the dead body of the
deceased was recovered from the Appellant/Accused house. Further the
Prosecution has proved the arrest and recovery of MO9, based on the
Disclosure Statement of the Appellant/Accused. Hence, Prosecution has
proved its case and further submitted that in view of Section 106 of the
Indian Evidence Act, 1872 (1 of 1872) the onus of proof has shifted to the
Appellant/Accused to explain the circumstances. But the Appellant/Accused
has not explained her case. Hence, the Prosecution has proved the case
beyond reasonable doubt. The learned Sessions Judge after examining all the
facts and circumstances has come to the conclusion that the Appellant/
Accused committed the offence under Section 302, I.P.C., and there is no
warrant to interfere with. Accordingly, he has prayed to dismiss the Appeal.
6. This Court has considered both side arguments and perused the entire
evidence available on record.

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7. In this case there is no Eyewitness. This case is solely rested on

circumstantial evidence. Before going into the merits of this case, this Court
wants to state the legal position relating to a case arising out of
circumstantial evidence. Hon’ble Supreme Court in Govindha Reddy v.
State of Mysore, AIR 1960 SC 29, held as follows:
“5. The mode of evaluating Circumstantial evidence has been stated by this
Court in Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR 1952
SC 343, and it is as follows:
“It is well to remember that in cases where the evidence is of a Circumstantial
nature, the circumstances from which the conclusion of guilt is to be drawn
should, in the first instance, be fully established, and all the facts so established
should be consistent only with the hypothesis of the guilt of the Accused.
Again, the circumstances should be of a conclusive nature and tendency and
they should be such as to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for a conclusion consistent with the
innocence of the Accused and it must be such as to show that within all human
probability the act must have been done by the Accused.”
8. The Hon’ble Supreme Court in Shaik Mastan Vali v. State of Andhra
Pradesh, 2007 (9) SCC 342, has held as follows:
“16. A reference may be made to a later decision in Sharad Birdhichand Sarda v.
State of Maharashtra. Therein, while dealing with Circumstantial evidence, it
has been held that the onus is on the prosecution to prove that the chain is
complete and the infirmity or lacuna in the prosecution cannot be cured by a
false defence or plea. The conditions precedent in the words of this Court, before
conviction could be based on Circumstantial evidence, must be fully established.
They are; (SCC p. 185, Para 153)
“(1) The circumstances from, which the conclusion of guilt is to be drawn
should be fully established. The circumstances concerned must or should and
not may be established;
(2) The facts so established should be consistent only with the hypothesis of
the guilt of the Accused, that is to say, they should not be explainable on any
other hypothesis except that the Accused is guilty;
(3) The circumstances should be of a conclusive nature and tendency;
(4) They should exclude every possible hypothesis except the one to be proved; and
(5) There must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been
done by the Accused.”
This Court approaches this case in the light of the above legal principles.
9. The Prosecution has relied upon the following circumstances to
connect the Appellant/Accused with the Crime:
Circumstance (i) : Whether the Appellant/Accused and the deceased were
living in a relationship out of marriage ?

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(a) According to the Prosecution case, the Appellant/Accused and the
deceased Gunesekaran were living under one roof without marriage. The
Prosecution with a view to prove the said fact has examined Thiru.
Sivakumar (PW3) and Tmt. Shanthi (PW4), who are brother and sister of
the deceased. They deposed that the deceased had relationship with the
Appellant/Accused. Prosecution did not examine any more Witness to
prove the said fact. As stated supra, the evidence of PW3 & PW4 did not
establish the fact that the Appellant/Accused and the deceased had
relationship out of marriage. Hence, the said circumstance has not been
established by the Prosecution.
Circumstances (ii) & (iii) : Whether the Appellant/Accused and the
deceased were last seen together on the night of 22.6.2016 at 10.00 p.m. by
the house owner Tmt. Kaliyammal (LW3) (Landlady) and whether the
Appellant/Accused left the house on 23.6.2016 at 5.30 a.m. and the same
was seen by Tmt. Kaliyammal (LW3) ?
(a) The Investigating Officer (PW10) examined Tmt. Kaliyammal (LW3)
who is the Owner of the house where the Appellant/Accused was
residing. PW10 recorded Tmt. Kaliyammal (LW3) statement under
Section 161(3) of the Cr.P.C., on 23.6.2016. On the same date he
recorded the statement of Thiru. Radhakrishnan (PW1), Thiru. Sivakumar
(PW3) and Thiru. Vijayaraghavan (PW5). PW10 sent the said Witness
statement to the Jurisdiction Magistrate on 23.6.2016 itself but the
statement of Tmt. Kaliyammal (LW3) was sent to the Jurisdictional
Magistrate in the month of August 2016 only, which creates suspicion as
to whether PW10 examined Tmt. Kaliyammal (LW3) under Section
161(3), Cr.P.C., on 23.6.2016. It is to be noted that Tmt. Kaliyammal
(LW3) died on 14.11.2018 before the commencement of the trial.
Prosecution has not proved the statement of Tmt. Kaliyammal (LW3) as
per the law. Prosecution did not examine any person to prove that the
deceased and the Appellant/Accused were last seen together on 22.6.2016
in the Appellant/Accused house. PW10 has not spoken a single word
about the death of Tmt. Kaliyammal (LW3) and her statement recorded
by him under Section 161(3) of Cr.P.C. Admittedly, in and around the
Appellant/Accused house 20 houses are situated. PW10 did not examine
any person except Tmt. Kaliyammal (LW3). The Village Assistant Thiru.
Karmegham was examined as PW2. He deposed that Tmt. Kaliyammal
(LW3) told him that the Appellant/Accused and the deceased were living
as Husband and Wife in her house as Tenant and there was a quarrel
between the Appellant/Accused and the deceased on 22.6.2016 at 10.00
p.m. i.e. the night before the incident. But the aforesaid statement made in
the Court was not made by him while giving Statement under Section
161(3) of Cr.PC. PW2 evidence in this regard is an improvement and an
after thought and it does not inspire confidence of this Court. Hence, this
Court is of the view that Circumstances No.(ii) & (iii) are not established
by the Prosecution.

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Circumstance (iv): Whether Thiru. Vijayaraghavan (PW5) went to the

Appellant/Accused house and saw the dead body of the deceased ?
(a) This Court has perused the deposition of PW5 carefully. PW5 is a
Retired Employee of Neyveli Lignite Corporation (N.L.C.) and
Councillor for 12th ward of Vadalur Town Panchayat at the time of
occurrence. His deposition was recorded on 3.7.2019. He deposed that
Muthu Reddy Street comes under Ward No.12. As a Councillor, he used
to visit his ward to hear the grievance of his ward people. Three years
before the date of this deposition, he went to Muthu Reddy Street for
hearing grievances of his Ward people. At that time Appellant/Accused
was quarreling with a person. He enquired them and found that the
Appellant/Accused name is Anjalai and the person with whom the
Appellant/Accused quarreled was Gunasekaran (deceased) and both of
them are living together without marriage. Two days thereafter, the
Appellant/Accused and the deceased were quarreling in front of
Appellant/Accused house as if the deceased has contact with another
woman. He and house Owner Tmt. Kaliyammal (LW3) pacified the
Appellant/Accused and the deceased Gunasekaran. Next day early
morning i.e. on 23.6.2016, when he visited Muthu Reddy Street, the
house of the Appellant/Accused was kept open, when he went inside the
house, he found deceased Gunasekaran in a pool of blood with cut injury
on his neck. He called Tmt. Kaliyammal (LW3) and informed the
incident. Tmt. Kaliyammal (LW3) and other persons, who were living in
the street came and saw the deceased body;
(b) He informed the incident to Thiru Karmegham (PW2) Village
Assistant over phone. PW2 came to the spot and in turn he informed to
the Village Administrative Officer, Thiru. Radhakrishnan (PW1).
Thereafter PW1 filed Ex.P1-Complaint. PW5 further deposed that
Appellant/Accused had been living in Muthu Reddy Street for two
months before the incident; that there are 20 residential houses around the
scene of occurrence; that he did not see the Appellant/Accused on the
date of incident; that the Inspector of Police (PW10) came to the scene of
occurrence and started investigation. PW10 sent the body for Post-
Mortem. Though denied that the Appellant/Accused side put a suggestion
to PW5 that Appellant/Accused did not commit the offence and the
Appellant/Accused and the deceased used to get along well, cannot be
ignored;
(c) This Court has carefully considered the evidence of PW5. The
evidence of PW5 is that he went to the Appellant/Accused house and saw
the dead body of the deceased on 23.6.2016 and the same is being
corroborated by PW1, PW2 & PW10 evidence. To that extent the
evidence of PW5 is believable. The other portion of the evidence is that
the Appellant/Accused and the deceased were fighting each other two
days before the occurrence and that PW5 and Tmt. Kaliyammal (LW3)
pacified them, etc., have not been corroborated by any other Witnesses.

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(DB) (R. Sakthivel, J.)
Investigating Officer did not examine any person, who is residing in and
around the area. No explanation was given by the Investigating Officer in
this regard. Hence, this Court comes to the conclusion that PW5 saw the
dead body of the deceased on early morning of 23.6.2016 at Appellant/
Accused house.
Circumstance (v) : Did the Investigating Officer (PW10) visit the alleged
scene of occurrence on 23.6.2016 at 9.30 a.m. and collect MO1 to MO8
from the alleged scene of occurrence ?
(a) Investigating Officer (PW10) visited the alleged scene of occurrence
on 23.6.2016 at 9.30 a.m. and started investigation, seized the dead body,
collected MO1 to MO8 and conducted Inquest on the dead body. The said
fact has been corroborated by Thiru. Sundhar (PW6). It is to be noted that
the alleged Panchayatars, who signed the Inquest Report have not been
examined in this case. No explanation was offered by the Investigating
Officer in this regard. The dead body was sent for Post-Mortem. The
Post-Mortem Doctor was examined as PW8 and his report was marked as
Ex.P6. As per Ex.P6, the deceased died due to shock and Hemorrhage
consequent upon injury to Neck structures. The Prosecution has
established that the deceased died due to Homicidal violence. It is
apposite to state here that the blood stained materials or any marks found
in and around the scene of occurrence are relevant and admissible under
Section 7 of the Indian Evidence Act, 1872. But in this case, the
Investigating Officer did not send the blood stained material objects to
the Forensic Science Laboratory for Chemical Analysis. To be stated, the
knife allegedly used in this Crime was also not subjected to Chemical
Analysis. Since, this case is solely rested on Circumstantial evidence, the
Investigating Officer ought to have sent the blood stained Material
Objects for Chemical Analysis to confirm the place of occurrence and to
connect the weapon with the Crime. Hence, this Court comes to the
conclusion that the Investigating Officer visited the alleged scene of
occurrence on 23.6.2016 and collected MO1 to MO8 from the alleged
scene of occurrence but the Investigating Officer miserably failed to
prove that the occurrence happened inside the Appellant/Accused house.
It is to be noted, the defense of the Appellant/Accused is that the
deceased might have been killed by some other person.
Circumstances (vi) & (vii) : Arrest, Confession and Recovery:
(a) According to the Prosecution, the Appellant/Accused was arrested on
23.6.2016 at 3.30 p.m. near Vadalur Sathya Gnana Sabha and she gave
confession in the presence of Witness Thiru. Tamil Selvan (PW7) and
Thiru. Sivakumar. Prosecution examined PW7 to prove the Confession
and Disclosure Statement of the Appellant/Accused. PW7 did not support
the case of the Prosecution. He deposed that he saw the Accused present
in the Police Station when he went to Police Station for some other work
and he signed the document in the Police Station. The Prosecution cross

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examined the said Witness under Section 154 of the Indian Evidence Act,
1872. Despite cross-examination, the Prosecution did not get any amount
of evidence in its favour. Another Witness-Thiru. Sivakumar was not
examined by the Prosecution and no explanation was offered in this
regard. It is apposite to mention that, PW1 in his evidence clearly stated
that on 23.6.2016 at about 8.00 a.m. when he came to Police Station for
filing Complaint (Ex.P1), the Appellant/Accused was present in the
Police Station. PW1 is an official Witness. There is no reason to reject the
evidence of PW1. Hence, the Prosecution theory that the Appellant/
Accused was arrested on 23.6.2016 at 3.30 p.m. is belied. Moreover, the
case of the Prosecution is that the Investigating Officer seized the blood
stained MO9-Knife. But MO9 was not subjected to Chemical Analysis to
connect the knife with the Crime. This aspect has been specifically put in
the form of question to the Investigating Officer. Investigating Officer did
not offer any explanation in this regard. Hence, this Court comes to the
conclusion that arrest of the Accused, Disclosure Statement and the
seizure of MO9 are doubtful.
Circumstance (viii) : Section 106 of Indian Evidence Act, 1872:
(a) The learned Additional Public Prosecutor submitted that the
Appellant/Accused did not enter in to the Witness Box and prove her
defense. Further, he submitted that the learned Sessions Judge has
correctly applied the provisions of law. This Court has carefully
considered the submission made by the learned Additional Public
Prosecutor. In general, the Prosecution has to prove the involvement of an
Accused beyond all reasonable doubt. If the Prosecution proved its case
beyond reasonable doubt, then only the onus of proof will shift to the
Accused side. Hon’ble Apex Court in Ambalal v. Union of India, AIR
1961 SC 264, in Paragraph 9 held as follows:
“9. .....Under that Section, when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him. This Court in Shambu Nath
Mehra v. State of Ajmer after considering the earlier Privy Council decisions on the
interpretation of Section 106 of the Evidence Act, observed at p. 204 thus:
“The Section cannot be used to undermine the well established rule of law that,
save in a very exceptional class of case, the burden is on the Prosecution and never
shifts.”
If Section 106 of the Evidence Act is applied, then, by analogy, the
fundamental Principles of Criminal Jurisprudence must equally be
invoked. If so, it follows that the onus to prove the case against the
Appellant is on the Customs Authorities and they failed to discharge that
burden in respect of Items 1 to 5. The order of confiscation relating to
Items 1 to 5 is set aside.
Further, the Hon’ble Supreme Court in the case in State of Punjab v.
Kewal Krishan, 2023 SCC Online SC 746, in Paragraph 22 held as
follows:

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“22. .....The argument that the Accused has failed to discharge his burden under
Section 106 of the Evidence Act and, therefore, his conviction was justified is
misconceived. Section 106 of the Evidence Act does not absolve the prosecution
of discharging its primary burden of proving the prosecution case beyond
reasonable doubt. It is only when the prosecution has led evidence which, if
believed, will sustain a conviction, or which makes out a prima facie case, the
question arises of considering facts of which the burden of proof would lie upon
the Accused. (See: Shivaji Chintappa Patil v. State of Maharashtra, 2021 (5)
SCC 626)....”
(b) In this case, as stated supra, the last seen theory of Prosecution has not
been proved. Further, the chain of circumstances has not been proved.
Admittedly, 20 houses are there in and around the scene of occurrence.
Investigating Officer has not examined any person, who was living in the
locality except Tmt. Kaliyammal (LW3). As stated supra, Tmt.
Kaliyammal (LW3) died before commencement of trial and could not be
examined. Her statement was not proved as per law. The arrest and
recovery of MO9 is also not proved. In these circumstances, this Court is
of the view that the Prosecution has not established the said circumstance
beyond reasonable doubt and the onus of proof has not shifted to the
accused. Hence, this Court does not accept the argument advanced by the
learned Additional Public Prosecutor in this regard.
Circumstance (ix) : Motive
(a) In a Criminal case, motive is irrelevant if the Eyewitnesses are
available. If a case is rested upon Circumstantial Evidence, motive is also
an additional link of the chain. In this case, the Prosecution has stated that
the deceased had a relationship with YY and that is the motive for the
Crime. With a view to prove the motive, the Prosecution examined PW3
and PW4. Their evidence does not establish the alleged motive. Hence,
the alleged motive for the Crime has not been proved by the Prosecution.
10. As discussed above, the Prosecution has not established the chain of
circumstances and proved the case beyond reasonable doubt. The conclusion
of the learned Sessions Judge is incorrect and to be interfered with. The
points are answered accordingly in favour of the Appellant/Accused and
against the Prosecution.
11. Resultantly, the Criminal Appeal is allowed and the Judgment, dated
17.12.2020 passed in S.C. No.378 of 2018 by the learned I Additional
District and Sessions Judge, Cuddalore is hereby set aside. The Appellant/
Accused is acquitted from the charge under Section 302, I.P.C., and the Bail
Bond if any, executed by her shall stand discharged. The Fine amount if any
paid by the Appellant/Accused shall be refunded to her.
 

Madras Weekly Notes (Criminal) / December 2023 83