Circumstantial evidence and last seen alive theory are crucial in establishing guilt for murder when supported by credible witness testimony, despite minor inconsistencies.

JUDGMENT :

N.SENTHILKUMAR, J.

Challenging the conviction passed by the Learned Additional District & Sessions Court, Chengalpattu in S.C.No.148 of 2012 dated 30.08.2019, the present appeal has been filed by the appellants 1 and 2.

2. The learned Additional District & Sessions Court, Chengalpattu in S.C.No.148 of 2012, has convicted the appellants and sentenced them as follows:-

3. The case of the prosecution is that the deceased and the accused persons had participated in a puberty function, a day prior to the date of occurrence i.e., 05.05.2011. The appellants picked up a wordy quarrel with the deceased in the function. At about 3.30AM on the next morning, the appellants and four other persons knocked the doors of the deceased, took him along with them and committed murder of the deceased.

4. Originally, a case was registered in Crime No.865 of 2011 for the offence under Section 302 IPC as against A1, A2 and others. Before the Trial Court, the prosecution had examined PW1 to PW16, marked Exs.P1 to P25 and M.O.1 to M.O.19. The Trial Court had acquitted A3 to A9 for the offence under Sections 147 and 302 IPC as the prosecution failed to prove the case against them beyond reasonable doubt. The Trial Court had acquitted A1 & A2, the appellants herein for offence under sec.147 IPC and convicted them for offence under Sec.302 IPC and sentenced to undergo life imprisonment.

5. Learned counsel appearing for the appellants disputed the presence of PW2, the wife of the deceased, PW3, the sister and PW1, the mother of the deceased in the house of the deceased. Learned counsel further submitted that PW4 and PW5 who had spoken about the motive behind the occurrence, turned hostile and therefore, motive for committing the crime was not established by the prosecution.

6. Learned counsel for the appellants contended that the contradiction in the statements of PW1 to PW3 would clearly show that PW1 and PW3 did not stay at the house of the deceased after the puberty function. The next contention of the learned counsel is that there is no clarity with regard to the identification of the body of the deceased. PW13, who stood as recovery witness had turned hostile. In the absence of any recovery from the accused, the case of the prosecution is not established and the chain of events does not point out the guilt as against accused.

7. Learned counsel for the appellants submitted that the post mortem report marked as Ex.P5 would show that, there was 100ml of undigested food material in the stomach of the deceased and the time of death was 10 to 13 hours prior to the post mortem as per Ex.P5.

8. Learned counsel for the appellants relied upon the judgment in the case of Naresh Kumar vs. State of Delhi reported in 2024 SCC OnLine SC 1641. The relevant portion is extracted hereunder:

“24. It is evident from the afore-extracted paragraph from the judgment of the Trial Court that the said conclusion that appellant had shared the common intention to commit murder of the deceased Arun Kumar was based only on the aforesaid two incriminating circumstances which were not put to the appellant while being questioned under Section 313 , Cr. P.C. When the very charge framed against him, as referred as above, would reveal that there was no charge of commission of an offence under Section 300, IPC, punishable under Section 302 , IPC, simplicitor against the appellant whereas the said charge thereunder with the aid of Section 34, IPC. In such circumstances, when the finding of common intention was based on the twin incriminating circumst