Viji @ Vijayakumar, v. State Rep. By Inspector
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :: 11-08-2016
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN CRL.APPEAL No.230 of 2016 Viji @ Vijaya Kumar ...
Appellant -vsState, represented by Inspector of Police, R-5, Virugambakkam Police Station, Chennai.
Crime No.1872 of 2008.
...
Respondent Criminal Appeal filed under section 374(2) of Cr.PC against the judgment, dated 06.04.2011, made in S.C.No.289 of 2009 on the file of VI Additional Sessions Court, Chennai. For appellant : Mr.K.Shanker For respondent : Mr.E.Raja, Additional Public Prosecutor.
JUDGMENT
(Judgment of the Court was delivered by S.Nagamuthu,J.) The appellant is the first accused in S.C.No.289 of 2009 on the file of VI Additional Sessions Court, Chennai. The second accused was one Babu. They stood charged for the offence under Section 302 IPC. By judgment, dated 06.04.2011, the trial Court acquitted the second accused, but convicted the first accused alone for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and pay fine of Rs.50,000/-, in default, to undergo simple imprisonment for six months. The trial Court had directed that a sum of Rs.40,000/-out of Rs.50,000/- should be paid to P.W.3, as compensation. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
2. The case of the prosecution, in brief, is as follows :
2.1. The deceased in this case was one Mr.Anbu. P.W.1 is his son in law. The deceased was a social worker. Incidentally, he was a trustee of Sri Ponniamman Temple at
Saligramam. He was also doing cinema business. The appellant/first accused also hails from the same locality. On many occasions, the appellant/first accused used to come to the house of the deceased in drunken state and to develop quarrel with him under the guise of asking for accounts of the temple. This kind of quarrel happened on many occasions. The deceased had informed the police also about the same. The police, in turn, warned the accused, but he did not stop his activities towards the deceased.
2.2. On 28.10.2008, around 10.00 p.m., P.W.1 was in his house with his wife and other family members. At that time, he heard a distress call of his father-in-law from the road junction at the end of Ponniamman Koil Street. P.W.1 and others immediately rushed towards the said place. There, they found the deceased lying in a pool of blood and these two accused standing with one knife each in their hands with bloodstains. On seeing P.W.1 and others rushing towards the place of occurence, both the accused ran away from the scene of occurrence with bloodstained knives. Immediately, P.W.1 took the deceased in an autorickshaw to a private hospital, namely, Surya Hospital and admitted him as inpatient. Then, P.W.1 went to Virugambakkam Police Station and made a complaint at 10.45 p.m. against the accused. P.W.
10, the then Inspector of Police, on receipt of the said complaint, registered a case in Crime No.1872 of 2008, for the offence under Section 307 IPC. Ex.P-1 is the complaint and Ex.P-13 is the F.I.R. He forwarded both the documents, namely, the complaint and the F.I.R. to the Court. He went to the place of occurrence at 11.45 p.m. and prepared an observation mahazar and a rough sketch in the presence of P.W.4 and another witness. He recovered bloodstained earth and sample earth from the place of occurrence. Then, he went to Surya Hospital, where the deceased was undergoing treatment. Since the deceased was in unconscious state, he was not able to record his statement. He recovered the bloodstained clothes, worn by the deceased. Then, he handed over the Case Diary to his successor (P.W.11) for further investigation. 2.3. On 30.10.
2008, when the investigation was in progress, P.W.11 came to know that both the accused had surrendered before the Metropolitan Magistrate Court on 30.10.2008 itself. At his request, the jurisdictional Magistrate gave police custody of both the accused on 03.11.2008. While in the police station, on 04.11.2008, in the presence of P.W.5, the first accused gave a voluntary confession, in which he disclosed the place where he had hidden the knife. In pursuance of the same, he took the police and the witnesses to the place of hideout and produced the knife. Then, the second accused also gave a voluntary confession, in which he disclosed the place where he had hidden the knife.
the knife M.O.3. P.W.11 recovered the same under a mahazar. On returning to the police station, he forwarded both the accused to the Court for judicial remand and handed over the material objects also to the Court. On 08.11.2008, the deceased, who was undergoing treatment in the hospital, succumbed to the injuries. Therefore, P.W.11 altered the case into one under Section 302 IPC. He conducted inquest on the body of the deceased and sent the same for post-mortem. 2.4. One Dr.K.Mathiharan (not examined before the Court) conducted autopsy on the body of the deceased on 08.11.2008. He found the following injuries : "1. Healed abrasion over the back of middle of right arm.
2. Sutured wound over back of left shoulder. On removal of sutures, partly healed laceration 5 x 1cm x muscle deep.
3. Sutured wound over left forehead. On removal of sutures, partly healed laceration 3x1cm x bone deep.
4. Sutured wound over front of left side of chest at the level of 5th intercostal space. On removal of sutures, incised would 18x1.5cm x cavity deep. On dissection, surgical intervention noted. Left side of diaphragm found to be sutured.
5. Another sutured wound 5 cms above the previous wound. On removal of suture, incised wound 5 x .5 cms x muscle deep.
6. Sutured wound over front of left of abdomen 15 cms from the midline. On removal of suture, incised wound 1.5 x .5 cms x muscle deep.
7. Sutured wound along the midline of abdomen extending from xiphisternum to the umbilicus 20 cms in length. On removal of suture, incised wound 20 x 1 cm x muscle deep.
8. Sutured wound over lower end of back of left forearm 8 x 1.5 cms x bone deep. On dissection, suture of lower end of left radius and ulna in its lower third with internal fixation done.
9. Inverted 'L' shaped sutured wound over the left side of head, extending from left cheek to left temporal area. On removal of suture, incised wound 22x1.5 cms x bone deep. Left parotid gland found to be severed.
On dissection, cut fracture involving left temporo-parietal bone. Braindemators sub-dural and sub-aractinoid
haemorrhage seen over left temporo-parietal area. Comminuted fracture involving left middle cranial fossa. Neck structures, hyoid bone and thoracic cage intact."
Ex.P-15 is the post-mortem certificate. He gave opinion that the death of the deceased was due to shock and hemorrhage due to the injuries. P.W.11 collected the medical records, examined many more witnesses and on completing the investigation, laid chargesheet against the accused.
3. Based on the above materials, the trial Court framed the lone charge under Section 302 IPC against both the accused and the accused denied the same. In order to prove the case, on the side of the prosecution, as many as 11 witnesses were examined and 16 documents and 3 material objects were marked. Out of the said witnesses, P.W.1, the son-in-law of the deceased has stated that on hearing the alarm raised by the deceased, when he reached to the place of occurrence, he found these accused fleeing away from the scene of occurrence, holding one knife each with bloodstains. He further stated that he took the deceased to the hospital and admitted him as inpatient. P.W.2 and P.W.3 are neighbours of the deceased.
They have also stated that they heard the alarm raised by the deceased and when they rushed to the place of occurrence along with P.W.1, they found these accused fleeing away from the place of occurrence. P.W.2 has also stated about the motive between the accused and the deceased. P.W.4 has spoken about the preparation of the observation mahazar and the rough sketch. P.W.5 has spoken about the arrest of the accused and the confessions made by them and also the recovery of the knives on the disclosure statements made by the accused. P.W.6 is the Head Constable, who handed over the dead body to the doctor for post-mortem. P.W.7 has stated that he handed over the material objects to the forensic lab from the court, as directed by the Magistrate. P.W.
8 has stated about the chemical analysis conducted on the materials objects and he found blood on all the material objects, including the knives. P.W.9 is an important witness for prosecution, He was a doctor at Surya Hospital. According to him on 28.10.2008, at 09.35 p.m., when the deceased was brought by P.W.1 for treatment and the deceased was unconscious, P.W.1 told him that the deceased was attacked by two known persons with knives.
(1) A cut injury measuring 8 cm x 1 cm on the left side of the face.
(2) A cut injury on the left hand with fracture of the underlying bone.
(3) A cut injury measuring 3 x 3 cms on the chest. It was a open wound.
(4) The abdomen was distended.
During treatment, it was found that there was fracture of the left parietal bone and there was also injury to brain. Diaphragm was found torn. There was one litre of fluid blood in the thoracic cavity and there was 500 ml of fluid blood in the abdominal cavity. Surgery was conducted and intrinsic treatment was given to him. But, unfortunately he died on 08.11.2008 at 11.30 a.m. P.W.10 has spoken about the registration of the case and the initial investigation done. P.W.11 has spoken about the subsequent investigation done. He has also stated that the doctor, who conducted autopsy on the body of the deceased, was not available and he had gone abroad. Therefore, post-mortem certificate was marked through him. He has also spoken about the final report filed.
4. When the above incriminating materials were put to the accused, they denied the same as false. However, they did not choose to examine any witness or to mark any document on their side. Having considered all the above, the trial Court convicted the first accused/appellant alone as detailed in the first paragraph of this judgment. That is how, he is before this Court with this appeal.
5. We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the State and also perused the materials carefully.
6. This is a case, based on circumstantial evidence. The first circumstance is the motive for the first accused against the deceased. P.Ws.1 and 3 have vividly spoken about the said motive. There is no reason to reject the same. Thus, we find that the prosecution has proved the motive for the first accused. Now, turning to the actual offence, the actual act of attack made on the deceased by the accused was not seen by anybody, but, on hearing the alarm raised by the deceased, P.Ws.1 to 3 rushed to the place of occurrence and, at that time, they found both these accused fleeing away from the scene of occurrence with knives with bloodstains.
7. The learned counsel for the appellant would submit that out of these circumstances alone, the accused cannot be held guilty. We find no force at all in this argument. So far as the second accused is concerned, the trial Court has acquitted him, because, the second accused was not previously known to P.Ws.1 to 3. Even in Ex.P-1, P.W.1 has not mentioned the name of the second accused. Therefore, no test identification parade was held so far as the second accused was concerned. It was for these reasons, the trial Court has acquitted the second accused. But, the trial Court has not recorded that P.Ws.1 to 3 could not be believed. We have gone through the evidence of P.Ws.1 to 3
thoroughly and we find nothing on record to have even a slightest doubt as to its veracity. From the fact that this accused was found with bloodstained knife at the time when the deceased raised alarm and on seeing P.Ws.1 to 3 he fled away from the scene of occurrence along with another person would go to conclusively prove that it was this accused, who committed the murder of the deceased along with another person. To this extent, in our considered view, the prosecution has proved the case beyond all reasonable doubts.
8. So far as the cause of death is concerned, the learned counsel for the appellant would submit that the doctor, who conducted post-mortem, has not been examined. It is true. But, reasons for the non-examination of the said doctor have been stated by the prosecution. According to the prosecution, Dr.Mathiharan, who conducted autopsy, had gone abroad and, thus, he was not available for examination. To this effect, a memo was filed before the trial Court and the said Court has recorded the same. Therefore, the post-mortem certificate was marked through the investigating officer concerned. Simply because the document has been marked through the investigating officer, it cannot be held that the contents of the said document have been proved. We find force in the argument of the learned counsel for the appellant.
Assuming that the post-mortem certificate is kept out of consideration, on that score, we cannot hold that the death of the deceased was not on account of the injuries. P.W.9, the doctor, who treated the deceased had found fracture of the skull, fracture of ribs, open wound on the chest, fluid blood in the abdominal cavity and fluid blood in the thoracic cavity and other corresponding internal injuries. He opined that despite treatment, the deceased died. From the evidence of P.W.9, we hold that the prosecution has proved the cause of death of the deceased. Thus, the death was only due to the injuries caused by the accused. The recovery of M.O.1 with bloodstains from the possesion of the accused also further strengthens the case of the prosecution.
Thus, in our considered view, the prosecution has proved the guilt of the accused beyond all reasonable doubts. Therefore, the trial Court was right in convicting the accused/appellant for the offence under Section 302 IPC. The act of the accused would not fall under any one of the exceptions appended to Section 300 IPC and the said act would squarely fall within the first limb of Section 300 IPC. Therefore, we find no reason to interfere with the judgment of the trial Court.
9. In the result, this Criminal Appeal is dismissed. The conviction and sentence imposed on the appellant by the trial Court are hereby confirmed.
Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar dixit To
1. The IX Metropolitan Magistrate Saidapet, Chennai 15.
2. Do The Cheif Metropolitan Magistrate, Egmore, Chennai 8.
3. The VI Additional Sessions Court, Chennai.
4. Do The Principal District and Sessions Judge, Chennai.
5. The Inspector of Police, R-5, Virugambakkam Police Station, Chennai.
6.The Superintendent, Central Prison I, (Convict) Puzhal, Chennai 66.
7. The District Collector, Chennai.
8. The Director General of Police, Mylapore, Chennai 4.
9. The Public Prosecutor, High Court, Madras.
CRL.A.No.230 OF 2016 kji co kra 18.10.2016