Research › Search › Judgment

Madras High Court · body

2016 DIGILAW 2031 (MAD)

Vijai v. State Rep. by The Inspector of Police

2016-06-28

S.NAGAMUTHU, V.BHARATHIDASAN

body2016
JUDGEMENT : S. NAGAMUTHU, J. 1. The appellant in Criminal Appeal No.237 of 2015 is the Accused No.2 and the appellant in Criminal Appeal No.602 of 2014 is the Accused No.1 in S.C.No.205 of 2013 on the file of the learned Principal Sessions Judge, Sessions Division of Tiruvallur. They stood charged for offences under Sections 449 r/w 34 of IPC and 302 r/w 34 of IPC. The trial court, by judgment dated 29.10.2014, convicted both A1 and A2 under Section 448 r/w 34 of IPC instead of under Section 449 r/w 34 of IPC and under Section 302 r/w 34 of IPC and sentenced them to undergo rigorous imprisonment for six months for offence under Section 448 r/w 34 of IPC and to undergo imprisonment for life and to pay a fine of Rs.10,000/- each in default to undergo simple imprisonment for six months for offence under Section 302 r/w 34 of IPC. Challenging the above said conviction and sentence, A1 and A2 are now before this court with these criminal appeals. 2. The case of the prosecution in brief is as follows:- The deceased in this case was one Mr. Vijayakumar. He was running finance business in the first floor of the building bearing No.28/4, Nehru Bazaar, Avadi, Chennai. P.W.2 Mrs. Kayasandigai was employed in the said concern. It turned out that there was illicit intimacy between A1 and P.W.2. The deceased informed the same to the husband of P.W.2. This resulted in a matrimonial dispute between P.W.2 and her husband and finally, there was a divorce. Thereafter, the deceased was making arrangement to marry P.W.2. A1 was enraged over the same. Thus, he developed enmity against the deceased. A2 was close to A1. 3. It is alleged that on 07.11.2012, at about 11.15 a.m., when the deceased and P.W.2 were in the financial establishment, A1 and A2 trespassed into the said concern. A2 held the deceased and A1 stabbed him repeatedly with knife on his neck and abdomen. The deceased fell down in a pool of blood. The occurrence was witnessed only by P.W.2. She raised alarm. P.W.1 and others rushed to the place of occurrence. Then, they made arrangements to take the deceased to the hospital and he was taken to VRM Clini, which is a private clinic at Nehru Bazaar, Avadi. P.W.11, Dr.Kalyanasundaram, examined the deceased at 11.30 a.m. on 07.11.2012. The occurrence was witnessed only by P.W.2. She raised alarm. P.W.1 and others rushed to the place of occurrence. Then, they made arrangements to take the deceased to the hospital and he was taken to VRM Clini, which is a private clinic at Nehru Bazaar, Avadi. P.W.11, Dr.Kalyanasundaram, examined the deceased at 11.30 a.m. on 07.11.2012. On examination, he found that there were stab wounds on the person of the deceased. The first injury was on the left side of the neck and the second injury was on the left side of the abdomen. The deceased was then unconscious. He was brought by the general public. They informed P.W.11, the Doctor, that the deceased had met with a road accident. P.W.11 suggested that the deceased should be immediately rushed to the Government General Hospital at Chennai. P.W.11, the doctor, then thought of giving first aid treatment. The stab injuries required to be sutured. But, even when suturing was in progress, the deceased collapsed. Ex.P.11 is the accident register. P.W.11, the doctor, informed the same to the police. 4. P.W.1, then, rushed to Avadi Police Station and made a complaint [Ex.P.1] at 12.00 noon on 07.11.2012. P.W.15, the then Sub Inspector of Police, on receipt of the complaint under Ex.P.1, registered a case in Crime No.1815 of 2012 under Sections 448 and 302 of IPC. Ex.P.19 is the FIR. Then, he forwarded both the complaint [Ex.P.1] and the FIR [Ex.P.19] to the court which were received by the learned Judicial Magistrate No.II, Poonamallee at 06.00 p.m. on 07.11.2012. In the mean time, P.W.15, handed over the case diary to the Inspector of Police for investigation. 5. P.W.17, taking up the case for investigation, visited the place of occurrence, prepared an observation mahazar [Ex.P.3] and a rough sketch [Ex.P.22]. With the help of a Forensic Science Expert [P.W.12], P.W.17 recovered a pair of spectacles with blood stains (M.O.7), blood stained ballpoint refill pens-2 Nos. (M.O.8), a round metal ring with blood stains (M.O.9), a white colour button with blood stains (M.O.10) and a gauze cloth piece with blood stains (M.O.11) under a mahazar (Ex.P.4) in the presence of P.W.6 and another. (M.O.8), a round metal ring with blood stains (M.O.9), a white colour button with blood stains (M.O.10) and a gauze cloth piece with blood stains (M.O.11) under a mahazar (Ex.P.4) in the presence of P.W.6 and another. P.W.17 also recovered two mobile phones with SIM cards; pieces of tiles [with blood stains] and sample tiles [without blood stains]; few photographs with blood stains, few photographs without blood stains cloth materials and personal belongings of the deceased and P.W.2 including her school transfer certificate [Xerox copy] from the place of occurrence. Then, he conducted inquest on the body of the deceased and forwarded the dead body to the mortuary for postmortem. 6. P.W.16, Dr. R. Selvakumar, conducted autopsy on the body of the deceased on 08.11.2012 at 12.00 noon at Government Kilpauk Medical College, Chennai. He found the following injuries on the body of the deceased:- "(I) Reddish brown abrasions: - 2.5 x 1 cm over back of left forearm - 2.5 x 2.5 cm over back of left forearm - 1 x 0.5 cm, 1.5 x 0.5 cm , 0.5 x 0.5 cm front of inner aspect of left leg. - 2 x 1 cm outer aspect of right leg - 1 x 1 cm above middle 1/3rd of left clavicle - 1 x 0.5 cm over back of right wrist - 0.5 x 0.5 cm over back of lower 1/3rd of left leg - 1 x 1 cm above middle 1/3rd of left clavicle (II) Oblique sutured wound measuring 2.5 cm long over left side of neck; it is 8 cm to the left of midline; Upper end is 8 cm below left mastoid process; Lower end is 7 cm above the middle 1/3rd of left clavicle. On removal of sutures: The margins are clean cut; the under lying platysma muscle found cut. The superficial neck veins found cut and the surrounding soft tissues bruised. On dissection of neck: Hyoid bone: Intact, Thyroid & Cricoid Cartilage: Intact. (III) Oblique stab wound measuring 3 x 1.2 cm x cavity deep x cavity deep over outer aspect of lower part of left side of chest; Lower and inner end is 21 cm to the left of midline; Upper and outer end is 16 cm below to the Axilla. On Dissection of Chest: Left lung found partially collapsed. (III) Oblique stab wound measuring 3 x 1.2 cm x cavity deep x cavity deep over outer aspect of lower part of left side of chest; Lower and inner end is 21 cm to the left of midline; Upper and outer end is 16 cm below to the Axilla. On Dissection of Chest: Left lung found partially collapsed. 130 ml of fluid blood with few clots seen in the left thoracic cavity; the stab wound enters the left thoracic cavity between 6th and 7th intercostal space below. Lung shows a stab wound in the lower lobe on the outer aspect measuring 2 x 0.7 cm corresponding to the external stab wound of the left side of chest. The dimensions of the stab wound decreases from the above downwards. The depth of the wound is 7 cm; The direction of the wound is inwards, upwards and medially; Heart: Normal in size, Chambers: contains fluid blood; Valves: NAD, Coronaries: Patent, Great Vessels: NAD. (IV) Sutured wound measuring 2 cm long seen over front of left side abdomen; 3.5 cm to the left of midline lateral to umbilicus. On dissection of Abdomen: The stab wound enters the abdominal cavity with a stab wound measuring 2 x 1 x cavity deep through the anterior abdominal muscles below. Abdominal cavity contains 460 ml of fluid blood and 15 grams of clotted blood. - The mesentery found contused extensively. - The mesenteric vessels on the left side found cut to a length of 0.5 cm (V) Incised wound measuring 2 x 1 x 0.5 cm over outer aspect of left side hip. On dissection of Head: Scalp: Contusion measuring 3 x 2 x 0.5 cm of left temporal region. Bones and Membranes: Intact.Brain: Normal in size C/S pale.Stomach: 20 ml of light brown colour fluid, no specific smell;Mucosa: Normal. Intestines: Distended with gas; Liver: Normal in size C/S pale. Spleen: Normal in size C/S pale.Both Kidneys: Normal in size C/S Pale. Bladder: Empty. Pelvis and Spinal column: Intact." Ex.P.20 is the postmortem certificate. P.W.16, the doctor gave opinion that the death was due to shock and hemorrhage as a result of the stab injuries to neck and abdomen. 7. P.W.17, during the course of investigation, arrested A1-Lingeshkumar and A2-Vijai at 07.00 a.m. on 08.11.2012 near Sekkadu - CTH Road Junction in the presence of P.W.9 and another witness. P.W.16, the doctor gave opinion that the death was due to shock and hemorrhage as a result of the stab injuries to neck and abdomen. 7. P.W.17, during the course of investigation, arrested A1-Lingeshkumar and A2-Vijai at 07.00 a.m. on 08.11.2012 near Sekkadu - CTH Road Junction in the presence of P.W.9 and another witness. On such arrest, A1 and A2 gave independent voluntary confessions in which they disclosed the place where they had hidden the knife, T-shirts, pants and a motor cycle. A1 in pursuance of his disclosure statement, took the police and the witnesses to the place of hide out and produced a knife, a full sleeve T-shirt, a blue colour jeans; and a motor cycle bearing regn. No. TN BQ 3507 which were recovered by P.W.17 under a mahazar in the presence of the same witnesses. Then, A2-Vijai pursuant to his disclosure statement [Ex.P.8] took the police and the witnesses to the place of hide out where he had hidden blue colour T-shirt with blood stains and black colour pants with blood stains and produced the same. P.W.17 recovered the same under a mahazar [Ex.P.10]. On returning to the police station, P.W.17 forwarded A1 and A2 to the court for judicial remand. He forwarded the material objects also to the court with a request to send them for chemical analysis. The chemical analysis report revealed that there were human blood on all the material objects, but the grouping was almost inconclusive except on gauze cloth piece, photo copies of photographs, salwar, dupatta, trousers, shirt and banian. The blood was found to be of 'O' group. On completing the investigation, P.W.17 laid charge sheet against the accused. 8. Based on the above materials, the trial court framed two charges. A1 and A2 denied the same. In order to prove the case, on the side of the prosecution, as many as 17 witnesses were examined, 26 documents and 29 material objects were marked. 9. Out of the said witnesses, P.Ws.1 and 3 have stated that on 11.15 a.m. on 07.11.2012, when they went to the Office of the deceased, they found the deceased lying in a pool of blood. They found P.W.2 trying to close the injury with her dupatta. P.W.2 has stated the she found the deceased lying with blood stains. P.W.2 was examined as eye-witness to the occurrence, but, she turned hostile. They found P.W.2 trying to close the injury with her dupatta. P.W.2 has stated the she found the deceased lying with blood stains. P.W.2 was examined as eye-witness to the occurrence, but, she turned hostile. P.W.4 and 5 have also turned hostile. P.W.6 has spoken about the preparation of the mahazar and the rough sketch and also the recovery of the material objects from the place of occurrence. P.Ws.7 & 8 have turned hostile. P.W.9 has spoken about the arrest of the accused and the consequential recovery of material objects on the disclosure statements of the accused. P.W.10 has stated that he assisted the police to collect the material objects from the place of occurrence for the purpose of expert opinion. P.W.11 has stated that on 07.11.2012, the deceased was brought to his clinic with two injuries. He advised the general public to take the deceased to the Government General Hospital at Chennai. Then, with a view to give first aid treatment, he sutured the injuries. When the suturing process was going on , the deceased collapsed. P.W.12, the Director in Forensic Sciences Laboratory, has stated that he examined the material objects namely blood stained and sample floor tiles sent for examination. According to her both the floor tile pieces were found to be similar to each other with respect to their density distribution pattern. P.W.13 has stated that he took the dead body to Government Kilpauk Medical College,Chennai and identified the same to the doctor for postmortem. P.W.14, the Judicial Magistrate, has stated that he recorded the statement of the witnesses namely P.W.1, 2, 4 and 7 under Section 164 of Cr.P.C. P.W.15, the Sub Inspector of Police has stated about the registration of the case and handing over the case diary to the Inspector of Police for investigation. P.W.16, the Doctor, has spoken about the autopsy conducted by him on the body of the deceased and his final opinion regarding the cause of death. P.W.17 has spoken about the entire investigation done by him and the filing of charge sheet against the accused 10. When the above incriminating materials were put to A1 and A2 under Section 313 of Cr.P.C. they denied the same as false. However, they did not choose to examine any witness nor did they mark any document on their side. Their defence was a total denial. 11. When the above incriminating materials were put to A1 and A2 under Section 313 of Cr.P.C. they denied the same as false. However, they did not choose to examine any witness nor did they mark any document on their side. Their defence was a total denial. 11. Having considered all the above, the trial court convicted the appellants/A1 and A2 as detailed in the first paragraph of this judgment. Challenging the above said conviction and sentences, A1 and A2 have come up with these criminal appeals. 12. We have heard the learned counsel appearing for the appellants/A1 and A2 and the learned Additional Public Prosecutor appearing for the respondent/State and we have also perused the records carefully. 13. In this case, P.W.2 is stated to be the eye-witness to the occurrence. But, unfortunately, she turned hostile and has not supported the case of the prosecution in any manner. P.W.1, 2 and 3 have stated that when they took the deceased to the hospital, the deceased told that A1 and A2 stabbed him with knife. But, the evidence of P.W.11, the Doctor, who treated the deceased at the private clinic, would go to show that at 11.30 a.m. when the deceased was brought before him, he was unconscious. Therefore, it is doubtful as to whether the deceased would have been in a position to speak to P.Ws.1 & 3 as stated by them. Above all, at the earliest point of time, the person, who had taken the deceased to the private clinic, told that the deceased met with an accident and sustained injuries. Except the evidences of P.Ws.1 & 3 that the deceased told them that A1 and A2 stabbed him, there is, absolutely, no other evidence against them. As we have already pointed out, the evidences of P.Ws.1 & 3, that the deceased told them that A1 and A2 stabbed him, is highly unbelievable. Mere recovery of the material objects at the instance of the accused would not in any manner help the case of the prosecution. Thus, absolutely, there is no evidence against A1 and A2 to sustain the conviction. The trial court has convicted the appellants on mere surmises and so, we are unable to sustain the conviction of the appellant. Thus, we hold that the prosecution has miserably failed to prove its case beyond all reasonable doubts and the appellants are entitled for acquittal. 14. The trial court has convicted the appellants on mere surmises and so, we are unable to sustain the conviction of the appellant. Thus, we hold that the prosecution has miserably failed to prove its case beyond all reasonable doubts and the appellants are entitled for acquittal. 14. In the result, these criminal appeals are allowed. The conviction and sentence imposed on the appellants/A1 and A2 are set aside and they are acquitted of both the charges. Fine amount already paid, if any, shall be refunded to them. The bail bond executed by the appellants shall stand terminated.