2026:MHC:1790Crl. A(MD)Nos.973, 1094 of 2023 and 642 of 2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON : 29.04.2026

PRONOUNCED ON : 01.06.2026

CORAM:

THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

AND

THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

Crl. A(MD)Nos.973, 1094 of 2023 and 642 of 2024

Crl.A.(MD) No.973 of 2023

Muthukumar : Appellant(s)/

A3

Vs.

The Inspector of Police,

Thaadikombu Police Station,

Dindigul District.

Crime No. 264 of 2012. : Respondent(s)

PRAYER: Criminal Appeal is filed under Section 372 of the Code of

Criminal Procedure, to call for records and set aside the conviction and

sentences imposed by the learned Additional District and Sessions Judge,

Dindigul, Dindigul District and set aside the judgment dated 09.10.2023

in S.C.No.83 of 2018 by acquitting the appellant.

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For Appellant : Ms. P. Kritika Kamal

For Respondent : Mr.A.Thiruvadi Kumar

Additional Public Prosecutor

Crl.A.(MD) No.1094 of 2023

1.Selvaraj

2.Selvapandi : Appellant(s)/

Accused Nos.1 & 2

Vs.

The Inspector of Police,

Thaadikombu Police Station,

Dindigul District.

Crime No. 264 of 2012. : Respondent(s)

PRAYER: Criminal Appeal is filed under Section 372 of the Code of

Criminal Procedure, to call for records and set aside the conviction and

sentences imposed by the learned Additional District and Sessions Judge,

Dindigul, Dindigul District and set aside the judgment dated 09.10.2023

in S.C.No.83 of 2018 by acquitting the appellants.

For Appellant : Mr.Gopala Krishna Laxmana Raju

Senior Advocate for

Mr.S.G.L.Rishwanth

For Respondent : Mr.A.Thiruvadi Kumar

Additional Public Prosecutor

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Crl. A(MD)Nos.973, 1094 of 2023 and 642 of 2024

Crl.A.(MD) No.642 of 2024

Thoongan @ Urathevar : Appellant(s)/

A4

Vs.

The State

Rep. by The Inspector of Police,

Thaadikombu Police Station,

Dindigul District.

Crime No. 264 of 2012. : Respondent(s)

PRAYER: Criminal Appeal is filed under Section 372 of the Code of

Criminal Procedure, to call for records and set aside the conviction and

sentences imposed by the learned Additional District and Sessions Judge,

Dindigul, Dindigul District and set aside the judgment dated 09.10.2023

in S.C.No.83 of 2018 by acquitting the appellant.

For Appellant : Mr.A.Arunprasad

for Mr.M.Suresh

For Respondent : Mr.A.Thiruvadi Kumar

Additional Public Prosecutor

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Crl. A(MD)Nos.973, 1094 of 2023 and 642 of 2024

COMMON JUDGMENT

(Judgment of the Court was

delivered by N.ANAND VENKATESH , J.)

These criminal appeals have been filed in the following manner:

Rank Appeal

A3 Crl.A.(MD) No.973 of 2023

A1 and A2 Crl.A.(MD) No.1094 of 2023

A4 Crl.A.(MD) No.642 of 2024

2. These appeals have been filed against the judgment of the

Additional District and Sessions Judge, Dindigul, made in S.C. No. 83 of

2018 dated 09.10.2023, wherein the appellants were convicted and

sentenced in the following manner:

Rank Charge Sentence

A1, A2, A4 Sec. 302 IPC (2

counts)

Life imprisonment for

each count and fine of

Rs.10,000/- for each

count, in default to

undergo 3 months

simple imprisonment.

A1, A2, A3, A4 Sec. 148 IPC 3 years rigorous

imprisonment

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Crl. A(MD)Nos.973, 1094 of 2023 and 642 of 2024

A3 Sec. 302 IPC Life imprisonment and

fine of Rs.10,000/-, in

default to undergo 3

months simple

imprisonment.

The above sentences were directed to run concurrently.

3. The case of the prosecution is that A1 is the husband of A5 and

brother of PW1. A2 is the son and A6 and A7 are the daughters of PW1.

A3 is A1’s sister’s son and A4 is the relative and uncle of the deceased

Periyasamy (D2). The deceased Kannan (D1), who is the son of PW1 and

PW2, was married to A7 and one of those days, when he went to the

house of A1, he saw A1 and A7 in a compromising position. Hence, he

quarrelled with A1 and A7. Hence, a panchayat was held and it is stated

that a customary divorce was effected between D1 and A7. In this

panchayat, D2 is said to have supported D1 and his parents and therefore,

the accused persons developed enmity against both D1 and D2. After the

customary divorce, A7 was married to another person and D1 had gone

to Chennai for work.

4. D1 had come to his native place to attend a family function. On

17.05.2012, when he was at his home, D2 called him over phone and

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hence D1 left to Thadikombu at about 4 p.m. on 18.05.2012. Around 4.40

p.m., PW1 received a phone call to the effect that A1 and A4 were

chasing D1 at Thadikombu Road. Immediately, PW1 and PW2 left in a

two-wheeler to Thadikombu and on enquiry they were informed that the

incident was taking place at Dindigul Road. Immediately, PW1 and PW2

went to the place near the scene of crime and they saw D1 and D2 talking

to another person near the TASMAC shop on the main road. A share auto

came to that place and A5 to A7 got down from the auto and threw chilli

powder on D1 and D2. Immediately, A1 to A4 along with another

accused (child in conflict) got down from the same auto and A2 attacked

D1 on his neck with aruval. A1 stabbed D1 on his left chest with knife.

A4 attacked D1 on his shoulder and hand with aruval. A3 stabbed D1

with knife on his ribs. D2 was attacked by A1 with a knife on his

abdomen. A2 attacked with aruval on his chest and A4 attacked D2 with

aruval on the back of his head, left hand and right hand. All the accused

persons ran away from the place of occurrence. Immediately, intimation

was given for 108 ambulance and D2 was taken in an ambulance to

Government Hospital, Dindigul. D1 was taken in a separate ambulance

and he was declared brought dead.

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5. PW1 gave a complaint (Ex.P1) at Thadikombu Police Station on

18.05.2012 at about 11 p.m. and PW15 registered the FIR (Ex.P17) in

Crime No.264 of 2012 for offences under Sections 147, 148, 307 and 302

of IPC. The express FIR was sent to Court on 19.05.2012 and it was

received at 6 a.m.

6. PW9, who was the duty doctor at Dindigul Government

Hospital, had received D2, who was brought by his brother, at about 9.15

p.m. on 18.05.2012 and PW9 prepared Ex.P12 accident register. The

original accident register was marked as Ex.C1. The doctor is said to

have informed the police about the condition of D2 and immediately

steps were taken for recording the dying declaration.

7. PW14, the Judicial Magistrate No.V, Madurai, proceeded to the

hospital and recorded the dying declaration of D2 at 12.30 midnight.

PW13, who is a doctor, was present and she gave the certificate to the

effect that D2 was conscious and in a fit state of mind to give the

statement. The dying declaration was recorded and it was marked as

Ex.P16. In the dying declaration, D2 is said to have narrated the incident

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and given the names of the accused persons who were involved in the

crime.

8. PW16, who is the Investigation Officer, took up the

investigation and he went to the scene of occurrence at about 1.00 a.m.

on 19.05.2012 and prepared the observation mahazar (Ex.P2) and rough

sketch (Ex.P18) in the presence of witnesses PW7 and another person.

MO1 to MO4 were seized under Athatchi (Ex.P3). He later went to the

mortuary and conducted the inquest on the body of D1 in the presence of

panchayathars and prepared the inquest report (Ex.P19). The body of D1

was sent for autopsy and the postmortem was conducted by PW10, who

issued the postmortem certificate for D1, which was marked as Ex.P13.

The following injuries were noted in the postmortem certificate:

“Extemal Injuries:

1. Cut injury scalp Rt Parietal region, extending up to the

Occipital Bone 9cm x 5cm exposing the Skull.

2. Cut Injury Neck, Deep cut of Lower Part of Rt. Side Neck

15 cm x 5cm, cutting the neck muscles and Greater Arteries

and Veins supplying the Brain (Carotids) up to the depth of

Cervical Vertebrae.

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3. Cut injury over the posterolateral part of Rt. Shoulder of

size 3cmx3cmx1cm/

4. Cut injury Rt.Shoulder 7cmx3cm cutting the

Acromioclavicular joint and exposing it.

5. Or injury of the Rt.mid forearm (Extensor Surface)

9cmx3cm exposing the bone and muscles

6. Cut injury below Rt. Wrist (Flexor Surface) 1cm above the

wrist line, 5cmx2cm exposing the deeper tendons.

7. Deep cut injury 11cmx2cm of the Rt.Palm, wound extends

from base of the thumb, index finger towards the medial

border of palm.

8. Stab injury over the medial border of Rt. Scapula at 5th rib

level 4cmx1cm., on probing the wound extends to the

thomxic cavity.

9. Stab Injury over the nape of neck 3cmx1cm.

10. Stab Injury in the Lt. Supraclavicular area 1 cm above

clavicle 4cmx2cmx2cm.

11. Two Stab Injuries below the Lt.Clavicle (Mid clavicular

line) 3cmx2cmx2cm.

12. Stab Injury over the Lt. Axilla of 4cmx2cm, size on the

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anterior axillary fold.

13. Cut Injury over Lt. outer forearm (Extensor Surface)

13cmx2cm, exposing deeper bone and soft tissue.

14. Deep Cut Injury in the Lt. Palm corresponding to the

horizontal palmar crease 10cmx2cm, cutting all the deeper

tendons of 2 to 5 fingers.

15. Stab Injury over LtLoin (L3 level) 4cmx2cmx3cm.

Internal Injuries:

Chest Cavity: 1x 0.5cm Exit wound in the 5th Rt. Intercostal

space with blood clot 150ml in the Rt. Chest Cavity

(Corresponding to wound No.8)

Heart chambers Rt Full, Lt.Empty. Lung & Liver. Spleen,

Kidneys-Pale

Hyoid Bone Intact

Stomach contains 150ml rice.

Skull In-tact, on opening, Brain and Meninges Normal.

OPINION: The deceased would appear to have died of shock

and haemorrhage due to multiple injuries sustained, and death

could fiave occurred 16 to 18 hours prior to autopsy.”

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9. The final opinion was given to the effect that the deceased (D1)

would appear to have died of shock and haemorrhage due to multiple

injuries sustained.

10. PW16 received the blood-stained dresses of D1 (MO5 to MO7)

and it was sent to the Court under Form 91 (Ex.P20).

11. A6 was arrested on 19.05.2012 at about 4 p.m. A1, A2 and A4

were arrested on 22.05.2012 at about 9 a.m. in the presence of PW7 and

another witness and based on the admissible portion of their confession,

blood-stained clothes and weapons were recovered, (MO8 to MO15)

under recovery mahazar Exs. P5, P7 and P9. The same was sent to the

court under Form 91 (Exs.P21 to P23).

12. PW16 received information about the demise of D2 on

24.05.2012. Therefore, alteration report was prepared and it was sent to

the Court by altering the sections to Sections 147, 148 and 302 of IPC.

The inquest was conducted on the body of D2 and inquest report Ex.P25

was prepared in the presence of panchayathars. The body was sent for

autopsy and the postmortem was conducted by PW12, who gave the

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postmortem certificate marked as Ex.P15, in which the following injuries

were noted:

“The following ante mortem injuries are noted on the body:

1. Surgically sutured injury 20cm x 1cm x cavity deep. noted

from xiphisternum to 18cm above pubic symphysis.

On dissection: Sutured wound 4cm x 4cm noted on the

anterior wall of stomach. Sutured wound 2cm x 1cm noted on

the post wall of stomach. Peritoneal rent found closed with

sutures.

2. Stab injury 4cm x 1cm x muscle deep noted on left side of

chest 7cm above left nipple, 7cm away from midline and

13cm to the right of left axilla.

3. Stab injury 2cm x 1cm x muscle deep noted on 6cm below

wound No-2.

4. Cut injury on left hand, severing left hand at the level of

wrist.

5. Stab injury 3cm x 1cm x muscle deep noted on outer aspect

of right arm.

6. Cut injury on palm of right hand 7cm x 1cm x bone deep,

cutting the underlying tissues, nerves vessels and underlying

bones.

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7. Cut injury 10cm x 2cm x muscle deep extending from left

cheek to left temporal region.

8. Cut injury 18cm x 2cm x muscle deep noted on the inner

aspect of right forearm extending from 5cm below right

elbow to right wrist.

9. Drainage wound (treatment wound) lcm x 1cm x cavity

deep noted on right and left outer aspect of abdomen.

10. Inter costal drainage wound (treatment wound) 1cm x

1cm x cavity deep noted on the outer aspect of left side of

chest.

11. Healed scar 15cm x 10cm noted on the right side of

buttocks to scarum.

Note: All the margins of all injuries are one end of stab injury

regular is pointed and the other end blunted.

OTHER FINDINGS:

Peritoneal cavity described; Pleural cavities empty;

Pericardium contains 15ml of straw colour fluid; Heart - right

side fluid blood, left side empty; Coronaries - patent; Lungs -

cut section congested; Larynx & trachea normal; Hyoid bone

intact; Stomach - described, contains 100ml of brown colour

fluid, nil specific smell, mucosa - normal; Liver, Spleen &

kidneys - cut section congested; Small intestine - contains

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20ml of bile stained fluid, nil specific smell, mucosa -

normal; Bladder empty; Brain surface vessels and cut section

congested.

OPINION:

"THE DECEASED WOULD APPEAR TO HAVE DIED OF

STAB INJURY ABDOMEN AND ITS CORRESPONDING

INTERNAL INJURIES AND THE CUMULATIVE OFFECT

OF ALL OTHER INJURIES”

13. A final opinion was given to the effect that D2 would appear to

have died of stab injury in the abdomen and its corresponding internal

injuries and the cumulative effect of all other injuries.

14. PW16 arrested A3 and A5 on 25.05.2012 at about 11 a.m. and

their confession was recorded in the presence of PW7 and another

witness and based on the admissible portion of the confession, a knife

(MO16) was recovered under Athatchi Ex.P11. The same was sent to

Court under Form 91 marked as Ex.P26.

15. The Investigation Officer recorded the statements of all the

witnesses under Section 161(3) of Cr.P.C. and received the Biology

Report (Ex.P28), Serology Report (Ex.P29) and all other reports. On

completion of investigation, the charge sheet was filed before the

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Judicial Magistrate No.II, Dindigul, which was taken on file in PRC No.4

of 2013 as against seven accused persons. After furnishing copies under

Section 207 of Cr.P.C., the case was committed under Section 209 of

Cr.P.C. and it was made over to the Additional District and Sessions

Court, Dindigul, and it was taken on file as S.C. No.83 of 2018.

16. The trial court framed the following charges against the

accused persons:

Rank Charges framed

A1 and A2

Sections 148 and 302 IPC (2

counts)

A3 Sections 148 and 302 IPC (1 count)

A4 Section 147 and 302 IPC (2 counts)

A5, A6 and A7

Sections 147, 302 IPC r/w 34 of

IPC

17. The prosecution examined PW1 to PW16 and marked Exhibits

P1 to P29 besides MO1 to MO16. Two Court documents were also

marked as Exhibits C1 and C2.

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18. The incriminating evidence and circumstances were put to the

accused persons when they were questioned under Section 313(1)(b) of

Cr.P.C. and they denied the same as false.

19. The accused persons did not examine any witnesses nor did

they mark any document.

20. The trial Court, on considering the facts and circumstances of

the case and on appreciation of oral and documentary evidence, came to

the conclusion that the prosecution has proved the case beyond

reasonable doubts as against A1 to A4 and accordingly, convicted and

sentenced them in the manner stated supra. A5 to A7 were acquitted from

all charges. Aggrieved by the same, these criminal appeals have been

filed before this Court.

21. The main submissions that were put forth on the side of the

accused persons are:

●PW1 and PW2, who are the parents of D1, were examined as eye

witnesses by the prosecution and that both of them could not have

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seen the occurrence and their evidence is entirely not reliable and

they are planted witnesses who did not really see the incident.

● PW1 and PW2 are interested witnesses and they are not wholly

reliable and in the absence of any corroboration, their evidence

cannot be acted upon.

●The so-called dying declaration given by D2 cannot be acted upon

since there is absolutely no evidence as to who informed the

Judicial Magistrate to record the dying declaration and even the

Investigation Officer became aware about the recording of dying

declaration only after a couple of days after he took up

investigation. Curiously, the statement of D2 was not even

recorded by the Investigation Officer even though D2 died nearly

five days after the incident.

●If the dying declaration of D2 is to be acted upon, it has to be acted

upon wholly and if the benefit of doubt has been given to A5 to

A7, whose names were also mentioned in the dying declaration,

the same must equally apply to the other accused persons also. In

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short, the dying declaration cannot be dissected and acted upon for

some accused persons while leaving out the rest.

●Murugesan and Rathinavel are important witnesses in this case.

Their presence has been spoken to by PW1 and even in the inquest

report their names were found and in the complaint also the name

of Murugesan is present. However, PW16 did not even record their

statements under Section 161(3) of Cr.P.C. Hence, non-

examination of vital witnesses in this case must result in drawing

adverse inference against the prosecution.

●There is no scrap of evidence to establish where D1 was taken in

the ambulance after the incident and which doctor had examined

D1 and what entries were made in the accident register. This

crucial evidence was intentionally concealed by the prosecution

since it would have brought out the real truth.

●The driver of the share auto in which the accused persons are said

to have come to the scene of crime was not examined and the share

auto was not even seized during the course of investigation.

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Similarly, none of the ambulance drivers were examined on the

side of the prosecution and thus, there are wide gaps in the case of

the prosecution which remain unanswered by the Investigation

Officer.

22. Per contra, the learned Additional Public Prosecutor submitted

that the incident had taken place in the year 2012 and naturally there will

be some discrepancies in their evidence and therefore their evidence will

have to be considered as a whole. They have spoken about the incident in

clear terms and it is clearly corroborated by the dying declaration given

by D2. The complaint has been given at the earliest point of time and the

FIR has also reached the Court at the earliest. This is a case of double

murder and just because there are lapses on the side of the Investigation

Officer, the entire case cannot be thrown out. The trial Court has

appreciated the oral and documentary evidence in a proper perspective

and has come to the right conclusion that the prosecution has proved the

case beyond reasonable doubts as against the appellants and therefore the

said judgment does not require interference of this Court.

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23. This Court has carefully considered the submissions made on

either side and materials available on record.

24. The entire case of the prosecution hinges upon the eyewitness

account of PW1 and PW2 and the dying declaration of D2. This Court

will first deal with the eyewitness account of PW1 and PW2 and see if

the same can be acted upon as was done by the trial court.

25. PW1 is the mother of D1 and PW2 is the father of D1. It must

be kept in mind that the alleged incident had taken place at Thadikombu

and PW1 and PW2 are the residents of Vedasandur which is nearly 10 to

15 kilometres from Thadikombu. Both of them speak about the motive

behind the crime on the alleged illegal intimacy between A1 and A7.

26. PW1 has stated in the evidence that D1 left the house at about

4 p.m. to Thadikombu after receiving the phone call from D2. Thereafter,

at about 4.40 p.m., PW1 is said to have received a phone call to the effect

that A1 and A4 were chasing D1. Immediately, PW1 and PW2 came to

Thadikombu Bus Stand and and enquired and they were told the place

where D1 was chased by A1 and A4. When they went to that place, from

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a distance PW1 claims to have seen A5 to A7 get down from a share auto

and had thrown chilli powder at D1 and D2. Thereafter, the other accused

persons get down from the same share auto and indiscriminately attacked

D1 and D2 with aruval and knife. In the cross-examination, PW1 states

that the phone call was received at about 7.40 p.m., and thereafter, PW1

and PW2 went to Thadikombu Bus Stand in a two-wheeler. This vehicle

was parked in a path going towards Dindigul on the left hand side of the

main road. From there, PW1 claims to have seen the incident along with

PW2.

27. PW2, who is the father of D1, comes up with a different

version to the effect that PW1 and PW2 asked D1 to come back home

after they reached Thadikombu and he asked them to wait and thereafter

the incident took place. Therefore, the place from which PW1 and PW2

are alleged to have seen this incident is in complete variance.

28. PW1 says that she saw the incident from a distance. PW2

specifically states that they called D1 and asked him to come back home

and he asked them to wait and thereafter the incident had taken place. In

such an event, there is a complete contradiction between the versions

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given by PW1 and PW2. As such, no phone call records were collected

during the course of investigation and the person who had informed PW1

and PW2 about D1 being chased by A1 and A4, has not been examined

as a witness. PW1 and PW2 had gone all the way from Vedasandur to

Thadikombu and unless the prosecution is able to establish as to who

informed PW1 and PW2, the very presence of PW1 and PW2 in the

scene of crime will become highly doubtful.

29. PW1 gave the complaint (Ex.P1) and in the said complaint, it is

stated that D1 and D2 went in a two-wheeler to Thadikombu on

18.05.2012 in the morning and about 3 p.m., D1 has been chased by the

accused persons and this information reached PW1 and PW2 through

known persons in the locality and this version in the complaint goes

against the version given by PW1 while deposing before the Court.

Therefore, there is a very serious doubt as to how PW1 and PW2

received the intimation before the incident had taken place, since they

were nearly 10 to 15 kilometres away from Thadikombu.

30. A careful reading of Exhibit P12, which is the accident register

given for D2, shows that it was recorded at 3.15 p.m. on 18.05.2012.

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However, the original accident register which was marked as Exhibit C1

shows alteration in the time as if the incident took place at 8.30 p.m. If

the incident had taken place at 3.15 p.m., then the presence of PW1 and

PW2 in the scene of crime becomes impossible since they have reached

the scene of crime only around 11.40 p.m. to 11.45 p.m. There is not even

an explanation given as to why there is discrepancy between Exhibit P12

and Exhibit C1 and why alterations and corrections have been made in

Exhibit C1 with respect to the timing.

31. PW9 is the doctor who gave the accident register states that

one Murugesan brought D2 to Dindigul Government Hospital at 9.35

p.m. and it was informed that the incident had taken place at 8.30 p.m

when six persons attacked D2. This timing as stated by PW9 does not

correlate with Exhibit P12 and the timing mentioned in Exhibit C1 is not

decipherable. Therefore, there is serious doubt regarding the time that

has been mentioned in the accident register.

32. To make things worse, there is no iota of evidence to show as

to where D1 was taken in the ambulance and which doctor had examined

D1 and if any accident register was prepared for D1. The Investigation

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Officer is completely silent on this aspect. If really the deceased persons

were taken in an ambulance, at least the ambulance driver should have

been examined as witnesses so that the Court can gather some materials

regarding the timings and in the absence of the same, there is a serious

doubt regarding the time at which the incident had taken place.

Consequently, the presence of PW1 and PW2 in the scene of crime

becomes highly suspect.

33. In the light of this discussion, this Court has to necessarily hold

that the so-called eyewitness account of PW1 and PW2 cannot be relied

upon and in fact it looks like both of them are planted witnesses who

were actually not present at the scene of crime.

34. At this juncture, this Court has to necessarily take serious note

of the fact that some of the crucial witnesses in this case were not

examined by the Investigation Officer during the course of investigation.

One Murugesan, who is the brother of D2, is said to have taken D2 in the

ambulance to the hospital. His presence is also recorded in the inquest

report and his name is also found in the complaint (Ex.P1). This crucial

witness was not examined on the side of the prosecution. Even on going

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through the original records, it is seen that not even a statement has been

recorded under Section 161(3) of Cr.P.C.

35. Yet another crucial witness in this case is Rathinavel. He is said

to have accompanied D2 to Rajaji Government Hospital at Madurai,

which has been spoken to by PW11. His presence is also recorded in the

inquest report. In spite of the same, not even his statement has been

recorded under Section 161(3) of Cr.P.C.

36. D1 and D2 were taken in two separate ambulances and the

most relevant witnesses in order to ascertain the timing will be the

ambulance drivers whose evidence can corroborate the evidence of main

witnesses. Unfortunately, even they have not been examined by the

Investigation Officer.

37. If the accused persons had arrived at the scene of crime in a

share auto, the most relevant witness will be the share auto driver and

even his statement has not been recorded by the Investigation Officer.

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38. It is clear from the above that even though there are crucial

witnesses in this case whose statements ought to have been recorded

under Section 161(3) Cr.P.C. and who should have been examined as

witnesses before the Court, the same has not been done by the

Investigation Officer who was not able to give any explanation when

questioned in the course of cross examination. Thus, in the light of the

conflicting versions given by the eye witnesses coupled with non-

examination of vital witnesses, an adverse inference has to be drawn by

this Court to the effect that those vital witnesses were not examined since

the true facts would have surfaced and the very genesis and substratum

of the case of the prosecution would have been demolished.

39. The last important issue that has to be gone into is the dying

declaration of D2. This dying declaration (Ex.P16) is said to have been

given by D2 to the Judicial Magistrate who was examined as PW14.

40. PW14, in his evidence states that the information was received

from the Government Hospital, Madurai, at about 12.15 midnight and he

reached the hospital at about 12.30 midnight and based on the certificate

given by PW13, the dying declaration was recorded and the same has

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Crl. A(MD)Nos.973, 1094 of 2023 and 642 of 2024

been marked as Exhibit P16. In the dying declaration, D2 has stated as

follows:

“Jhq;fh Njtu;> nry;tuh[;. nry;tuh[; kUkfd;

Kj;J> ghz;b> fz;zp uhzp> khaf;fhs;> <];tup

vy;NyhUk; 18.05.2012 md;W khiy 6>7 kzpf;F

kpsfha; nghb Jhtpdhu;fs;> fz;zp nry;tuh[;>

JJ}q;fhd; Kj;J> ghz;b MfpNahu; mUths;> fj;jpahy;

ntl;bdhu;fs;. ehDk; rpd;dk;kh kfDk; xapd;rhg;gpw;F

nry;Yk; NghJ ntl;btpl;lhu;fs;> ntl;batu;fs; vd;

cwtpdu;fs;. vd; rpd;dk;kh kfd; nry;tuh[; kfis

jpUkzk; nra;J ,Ue;jhu;> jPu;j;Jtpl;lhu;fs;. mjdhy;

tha;jfuhW ,Ue;jJ. vdf;Fk; ,lg;gpur;rpid ,Ue;jJ.

mjdhy; ntl;btpl;lhu;fs;. vdf;F tyJif> fhy;>

neQ;R> tapW> tha;> kz;ilapy; ntl;b fhak;

Vw;gl;Ls;sJ. NtW xd;Wk; $w Ntz;bajpy;iy.”

41. There was no material available as to who initiated the process

of dying declaration and who informed the Judicial Magistrate. On

careful scrutiny of the original records, it is seen that a Special Sub-

Inspector of Police, named Venkataraman, had informed the Magistrate

on 19.05.2012 at about 00.05 hours. Surprisingly, the Investigation

Officer, who took up the investigation at about 1.00 a.m. on 19.05.2012,

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was not even aware that a dying declaration had been recorded from D2.

In the course of cross-examination, he states that he came to know about

the recording of the dying declaration only after two to three days after

he took up the investigation. It is even more curious that D2, who had

given the dying declaration, was alive till 24.05.2012 and till then, the

Investigation Officer did not even record the statement of D2.

42. The dying declaration is a relevant fact under Section 32 of the

Indian Evidence Act. It is now settled that if the dying declaration is

found to be reliable entirely, conviction can be sustained on its basis

alone without any need for corroboration. However, if the Court is not

able to entirely act upon the dying declaration, the Court has to

necessarily look for corroboration.

43. As already stated supra, there is a serious doubt as to when the

incident had actually taken place in this case. Apart from that, certain

important witnesses, for reasons best known to the Investigation Officer,

have not been examined and this Court has already entertained a doubt

that such non-examination was intentional since it would have brought

out the true facts in this case.

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44. In view of the same, it will not be appropriate to entirely rely

upon the dying declaration and proceed further to convict and sentence

the appellants.

45. There is yet another reason as to why the dying declaration

cannot be put against the appellants. In the dying declaration, the names

of all the accused persons have been stated by D2, which includes A5 to

A7. A5 to A7 have been acquitted by the trial Court on the ground that

the prosecution has not made out a case. In such an event, the question

that arises for consideration is as to whether the Court can rely upon the

dying declaration for the other accused persons against whom the order

of conviction and sentence has been passed. The dying declaration has to

be acted upon as a whole or it has to be rejected as a whole. There is no

question of dissecting the dying declaration and applying it against some

of the accused persons and leaving it for the rest. Therefore, the benefit

of doubt has been given for A5 to A7 and they have been acquitted even

though they have been named in the dying declaration, and it will not be

appropriate to proceed against the appellants only on the basis of the

dying declaration.

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46. In the light of the above findings, this Court has to necessarily

look for corroboration and the dying declaration by itself cannot be the

basis to convict and sentence the appellants. Unfortunately, in this case,

there is no corroboration available for the Court to act upon the dying

declaration. Therefore, the dying declaration given by D2 is only a piece

of evidence which by itself is not enough to act upon without

corroboration.

47. In the case in hand, as per the eye witness account and as per

the dying declaration, A5 to A7 are said to have thrown chilli powder on

D1 and D2 and thereafter they were attacked by the other accused

persons. PW1 in her evidence states that the chilli powder had gone into

the eyes of D1 and he was rubbing his eyes and at which point of time

the first attack came from A4. PW2 states that chilli powder was thrown

on the eyes of both D1 and D2 and both were rubbing their eyes and at

which point of time they were attacked by the other accused persons.

Except for a reference in the observation mahazar about traces of chilli

powder found in the two-wheeler, there is absolutely no evidence about

the presence of chilli powder in the postmortem conducted on D1 and

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Crl. A(MD)Nos.973, 1094 of 2023 and 642 of 2024

D2. Apart from that, the so-called chilli powder that was available in the

two-wheeler was not even sent for chemical analysis. If that is the case,

the very genesis of the case of the prosecution becomes doubtful. In such

a scenario, the Court must be very careful while acting upon the evidence

which is full of contradictions and inherent improbabilities.

48. This Court entertains a doubt as to whether PW16, the

Investigation Officer, really went to the scene of crime or whether every

other document has been prepared in the police station. This serious

doubt is entertained since we found from the accident register (Ex.P12)

that the left hand of D2 had been amputated in the incident, which means

that a portion of the left arm of D2 was available in the scene of crime.

However, there is not even an indication regarding the same in the

observation mahazar. If this important piece of evidence has not been

seized by the Investigation Officer, the only impression that can be

gathered by this Court is that the Investigation Officer did not carry out

any work in the scene of crime and everything was done sitting in the

police station.

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49. This Court expresses its anguish in the manner in which the

investigation has been conducted in this case which involves a double

murder. PW16 has conducted one of the most slipshod investigation we

have seen in the recent times. Two precious lives have been lost and

going by the postmortem reports, we find that very serious injuries had

been sustained by D1 and D2. Apart from that, certain vital witnesses

who could have lent a lot of credence and strength to the case of the

prosecution were intentionally left out and even their statements were not

recorded under Section 161(3) of Cr.P.C. Therefore, this Court has to

necessarily hold that the prosecution has failed to prove its case only

because of the bizarre manner in which PW16, the Investigation Officer,

had conducted the investigation. If an acquittal is as a result of a

defective investigation, the Court can always record a finding to that

effect.

50. The law on the issue was dealt with by the Apex Court in State

of Gujarat v. Kishanbhai and Ors., reported in (2014) 5 SCC 108. One of

us (Justice N.Anand Venkatesh), had an occasion to deal with this issue

in detail in K.Muthupandi v. State, reported in (2020) 1 MLJ (Crl) 53. In

view of the same, this Court directs that the departmental action be

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Crl. A(MD)Nos.973, 1094 of 2023 and 642 of 2024

initiated against PW16 under the relevant service rules and it shall be

completed as expeditiously as possible after affording opportunity to

PW16.

51. In the result, the conviction and sentence imposed on the

appellants is unsustainable and hence, the judgment of the learned

Additional District and Sessions Judge, Dindigul, made in S.C.No.83 of

2018, dated 09.10.2023, is hereby set aside and and the criminal appeals

are allowed. The appellants are set at liberty from all charges. The

appellants, who are undergoing the sentence, shall be released from the

jail forthwith unless they are required in any other case. Bail bond shall

stand terminated. Fine amount paid, if any, is ordered to be refunded.

[N.A.V., J.] [K.K.R.K., J.]

01.06.2026

Index : Yes

Internet : Yes

Neutral Citation: Yes

PKN

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Crl. A(MD)Nos.973, 1094 of 2023 and 642 of 2024

To

1.The Additional District and Sessions Judge,

Dindigul, Dindigul District.

2.The Inspector of Police,

Thaadikombu Police Station,

Dindigul District.

3.The Superintendent of Prisons,

Central Prison, Madurai.

4.The Additional Public Prosecutor

Madurai Bench of Madras High Court,

Madurai.

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N.ANAND VENKATESH, J.

AND

K.K.RAMAKRISHNAN, J.

PKN

Judgment made in

Crl.A.(MD)Nos.973, 1094 of 2023 and 642 of 2024

01.06.2026

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