Madras High Court
Viji (Alias) Vijayakumar .. 1St vs The State Of Tamil Nadu on 23 December, 2022
Author: P.N.Prakash
Bench: P.N.Prakash
Crl.A.Nos.405 and 79 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 02.11.2022
PRONOUNCED ON : 23.12.2022
CORAM
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
AND
THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN
Crl.A.Nos.405 and 79 of 2018
1. Viji (alias) Vijayakumar .. 1st Appellant/A1 in
Crl.A.No.79/2018
2. Appanraj .. 2nd Appellant/A2 in
Crl.A.No.79/2018
3. M.Velu .. Appellant/A3 in
Crl.A.No.405/2018
Vs.
The State of Tamil Nadu,
Rep. By the Inspector of Police,
B2-Esplanade Police Station,
Chennai.
(Cr.No.705 of 2013) .. Respondent in both Crl.As.
Common Prayer: Criminal Appeals filed under Section 374(2) of
Criminal Procedure Code, praying to set aside the judgment of
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Crl.A.Nos.405 and 79 of 2018
conviction and sentence awarded by the learned VI Additional Sessions
Judge, Chennai, in S.C.No.402 of 2013 dated 22.12.2017.
For Appellants
in Crl.A.79 of 2018 : Mr.K.Balakrishnan
in Crl.A.No.405 of 2018 : Mr.C.K.M.Appaji
For Respondent : Mr.M.Babu Muthumeeran
(in both cases) Additional Public Prosecutor
COMMON JUDGMENT
RMT.TEEKAA RAMAN, J.
Convicted Accused Nos.1 and 2 have preferred Crl.A.No.79 of 2018, while the convicted 3rd accused has preferred Crl.A.No.405 of 2018.
2. Both these appeals are against the judgment of conviction and sentence passed in S.C.No.402 of 2013 by the learned VI Additional Sessions Judge, Chennai, dated 22.12.2017, whereby all the three accused have been convicted for the offence punishable under Section 302 r/w 34 of IPC and sentenced to undergo life imprisonment each with fine amount of Rs.1,000/- each in default they shall undergo one year rigorous imprisonment each.
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3. (a) The case of the prosecution is that on 04.03.2013 in the noon 14.40 hours, the defacto complainant Fathima (PW1), along with her brother Sathiyaraj (deceased), was moving near No.14, Francis Joseph Street, Broadway (opposite to High Court). At that time, the accused 1 to 3 have intervened and due to previous enmity with the Sathyaraj (deceased) has uttered obscene words and the 2nd accused-Appan Raj has pushed the Sathyaraj down and the 3rd Accused-Velu has kicked him and while Sathyaraj fell down, the 1st Accused-Viji @ Vijayakumar has taken out the sword which was hidden and stabbed him on the left thigh and the 2nd accused, caught hold of Sathyaraj and the 1st accused-Viji @ Vijayakumar, by uttering 'you die by this', stabbed him in the stomach twice and also cut the throat and also cut on the back of the neck.
(b) Both the accused viz., A2 and A3 have caught hold of Sathyaraj and criminally intimidated the persons nearby and fled away from the scene of crime and the injured was originally admitted in the hospital and was discharged on 16.03.2013 and again as the blood oozed out from the throat, where surgery was done, he was readmitted in the hospital on 30.03.2013 and despite treatment, the said Sathyaraj died and hence, charge under Section 302 r/w 34 of IPC.
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4. The case of the defence is one of total denial and it is projected during the cross examination that since the deceased was a history sheet notorious rowdy, someone might have killed him.
5. (a) The criminal law was set into motion by the informant Fathima (PW1), the sister of the deceased. According to the prosecution, the motive for the alleged murder is 'territory dispute' between 'two gangsters', operating near the scene of crime, which is opposite to High Court campus.
(b) The said Sathyaraj was residing with the informant at No.2400, 5th Cross Street, Kannagi Nagar, Duraipakkam, Chennai and he is facing criminal cases which were pending on the file of Duraipakkam Police Station and Fort Police Station.
6. Before one month from the date of occurrence, the said Sathyaraj had quarrelled with one Dinakaran who is close relative of the 1st accused Viji @ Vijayakumar and it was noticed by police authority attached to Duraipakkam Police Station who in turn has given a warning to said Sathyaraj so that he shifted his residence from Kannagi Nagar to https://www.mhc.tn.gov.in/judis 4/26 Crl.A.Nos.405 and 79 of 2018 Sathya Nagar, Island Grounds where from he used to go for collection of mamool in Harbour area. Due to the said quarrel with the said Dinakaran, who is the close relative of the 1st accused by the said Sathyaraj, the 1st accused had developed enmity against the deceased Sathyaraj thereby he had intention to cause the death of Sathyraj. The 1st accused had shared his intention to cause the death of Sathyaraj with the 2nd accused-Appan Raj and the 3rd accused-Velu.
7. PW1-Fathima, sister of the deceased filed a complaint-Ex.P1 on 04.03.2013, alleging as stated supra.
8. PW15-Sivaramakrishnan, Sub Inspector of Police attached to B2, Esplanade Police Station, while was on duty on 04.03.2013 at 15.30 hours, Fathima (PW1) of Kannagi Nagar lodged Ex.P1-complaint and he registered First Information Report [Ex.P14] in Cr.No.705 of 2013, for the offence under Sections 341, 294(b), 323, 324, 307 and 506(ii) of IPC and entrusted the case records to the Inspector of Police for further investigation and also sent the copies of complaint to the concerned Judicial Magistrate.
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9. PW16-Chellappa, Investigation officer, Inspector of Police attached to the B2-Esplanade Police Station, took up the investigation of the case in Cr.No.705 of 2013 registered by the Sub-Inspector Sivaramakrishnan, thereby he has examined the complainant Fathima and recorded her statement. Then he went to the place of occurrence prepared observation mahazar under Ex.P15 and Rough Sketch under Ex.P14. Then he examined witnesses Fathima [PW1], Babu@ Citi babu [PW2], Gunasekaran [PW3], Kumari, Venkatesh and Mustafa and recorded their statements.
10. (a) It is to be stated that from the scene of crime, through ambulance the brutally injured Sathyaraj was taken to Government Omanthurar Medical College Hospital and Dr.Rajesh [PW14] deposed that on 04.03.2013 at about 2.05 hours when he had been working in ICU, Government Rajiv Gandhi Hospital, one male person aged about 25 years, name and residence not known, was brought to casualty treatment by ambulance. PW14 enquired the ambulance driver and he informed that above said injured person was assaulted in Francis Joseph Street situated opposite to High Court. On his examination, he found that the said person was unconscious and suffering the following injuries 1) cut https://www.mhc.tn.gov.in/judis 6/26 Crl.A.Nos.405 and 79 of 2018 injury size 3 x 1 cm in centre neck, 2) knife injury size 3 cm in stomach,
3) cut injuries in left side bottom of stomach, centre thigh. PW14 gave treatment and admitted him in Ward No.201 as inpatient. The above said injuries were recorded in Accident Register Ex.P12.
(b) Thereafter, the injured was given treatment by Dr.Thangamani [PW12] and he had opined that the injured person found to be tired, blood pressure is in normal, pulse rate are in high and PW12 gave first aid and sent to ENT Doctor for special opinion. Thereafter PW12 received opinion from Special Doctor (Common Surgery) and according to the same, two urgent surgeries were done to the injured. By surgery, artificial breathing tube was inserted to the injured for his neck injury and also the surgery was done to stomach injuries and on 16.03.2013 the injured was discharged.
(c). In the meantime, PW16 visited the Rajiv Gandhi Government Hospital where Sathyaraj was admitted for treatment and since he was unable to speak, he examined Dr.Rajesh, who registered the Accident Register and received copy of the same.
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(d). On 05.03.2013 at about 11.00am, the investigating officer went to the junction of Prakasam Street and Parrys Corner where he arrested the 2nd accused-Appan Raj. In the presence of witnesses Ashokkumar [PW4] and Sakthivel [PW5] and recorded the confession statement voluntarily given by the 2nd accused, and then remanded him to judicial custody.
(e). On 07.03.2013 at about 11.00am, when the investigation officer went to the junction between Sembudoss Street and Post Office Street at Parrys Corner, he arrested the 3rd accused-Velu. Since no public turned up to be a witness for the said arrest, he brought the said accused to the police station and recorded the confession statement voluntarily given by him in the presence of Special Sub Inspector Rajarathinam and Constable 26749 Ragunathan. No material objects were recovered on the basis of the above confession statements of the accused 2 and 3 and has taken steps to remand the 3rd accused to judicial custody with proper escort duty.
11(a) In the meanwhile, Viji @ Vijayakumar-1st accused surrendered before the V Metropolitan Magistrate, Chennai on https://www.mhc.tn.gov.in/judis 8/26 Crl.A.Nos.405 and 79 of 2018 05.03.2013 and was remanded to Puzhal Prison. Hence, the Investigation Officer [PW16] filed a petition in Crl.M.P.No.59/2013 on 14.03.2013 to take him under police custody for interrogation. The said petition was allowed as per order in Ex.P16 and PW16 took him under police custody from 14.03.2013 to 16.03.2013 and interrogated him.
(b) On interrogation Viji @ Vijayakumar-1st accused voluntarily gave a confession statement under Ex.P19 in the presence of witnesses Karuppaiah and Balan and on the basis of the said confession statement on 15.03.2013 at about 8.15am, the said accused has produced the knife M.O.1, encarved as IKON from the garbage opposite to the residence situated at No.2/3, Bakers Street, Parrys Corner, which was recovered by PW16 under Seizure Mahazar in Ex.P17. The total length of the knife is. 22.5 cm, in which the plastic handle is of 14.5cm. The Form-95 is Ex.P18. Then he sent the first accused along with the case properties to judicial custody with proper escort duty.
12. When all the accused are in custody, the injured Sathyaraj, who was discharged from hospital has developed complication due to the injuries sustained by him in the assault and he was readmitted in hospital https://www.mhc.tn.gov.in/judis 9/26 Crl.A.Nos.405 and 79 of 2018 and died. Thereafter, again on 30.03.2013, PW16 received the complaint lodged by PW1 under Ex.P2 and he had altered the section of law in this case from 341, 294(b), 323, 324, 307 and 506(ii) of IPC to 302 IPC as per Alteration Report Ex.P20.
13 (a) On 30.03.2013, he prepared inquest report under Ex.P21 in the presence of Panchayatars in front of the mortuary at Government Hospital. After completion of postmortem, he sent the viscera to the Forensic Science Laboratory for examination and report.
(b) PW8-Ramamurthy, Head Constable, attached to B2, Esplanade Police Station, received the dead body of the deceased Sathyaraj in connection with the said crime number from the Doctor after completing the post mortem and entrusted the body to the relatives as per the instructions of the investigation officer and he was also entrusted with Forensic Lab letter seeking for serology report under Ex.P7.
(c) On 30.03.2013, PW13-Dr.S.Ramalingam, Assistant Professor in Medico-Legal Department, Government Medical College Hospital, Chennai has received the application for conducting postmortem in the https://www.mhc.tn.gov.in/judis 10/26 Crl.A.Nos.405 and 79 of 2018 male body of one Sathyaraj, age 26, in connection with Cr.No.705/2013 in B2-Esplanade Police Station. On the same day at about 2.25 hours the body was identified by Mr.Ramamurthy, Grade-1 Constable and he checked the identification marks of the body and commenced the postmortem. The following injuries are found:
(1) Sutured lacerated wound on the front of neck above the level of thyroid cartilage, on removal of the sutures, wound margins firmly adherent to each other; (2) Surgical incised wound cavity deep on the lower part of midline of neck; Tracheostomy wound, (3) An old healed wound scar 2x0.5cm on the back of the left side of neck;
(4) Multiple wound scar of varying sizes on the front of chest;
(5) An old healed wound scar 2x0.5cm on the front of the lower third of left thigh;
(6) An old healed would scar 2x1 cm on the right side of adbomen; 4 cm from the midline and 1 cm above the level of umbilicus;
(7) An old healed would scar 3 x 1-0.5 cm on the left side of the abdomen; 4 cam from the midline and 9cm below the level of umbilicus;
(8) An old healed surgical scar on the midline of the abdomen 20 cm;
(9) Intact end to end anastomosis of jejunum Jejunum, 30 cm from DJ Flexure;
(10) Intact sutures on the serosa of Transverse colon and https://www.mhc.tn.gov.in/judis 11/26 Crl.A.Nos.405 and 79 of 2018 (11) Diffuse bluish discoloration on the power part of the anterial abdominal wall.
On cross section, all the heart chambers contained fluid and clotted blood, valves are normal and both lungs were normal. In cross section, forthy fluid oozed out from congested cut surface, blood clots found adherent to the wall of bronchi and bronchioles on both the sides. The larynx and trachea was in empty, tracheostomy would on the anterior wall of trachea, posterior wall was intact, mucosa showed patchy area of erosions, hyoid bone and other laryngeal cartilages are intact. Further oestophagus – mucosa was in patchy area of erosions and stomach was contained 100 grams of drank red blood clots with no definite smell; liver, spleen and kidneys are in normal and bladder is in empty, scalp, durameter, vault and base of skull and also pelvis and spinal column are intact and he had reserved his opinion as to the cause of death the pending reports of chemical analysis of the viscera. Ex.P10 is the postmortem report and Ex.P11 is the final medical opinion. Police has enquired him.
14. Mr.Sridharan [PW11], the then Scientific Officer, Forensic Science Laboratory, Chennai, on 01.04.2013, received the viscera of deceased Sathyaraj from Government Hospital, Chennai through Mr.Ramamurthy, Constable, Esplanade Police Station. On examination of the same, he has not found alcohol or any poisonous substance and accordingly, he issued Ex.P8, report to the hospital vide Report No.TOX H 1012/2013 dated 19.04.2013.
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15. On completion of investigation and after obtaining postmortem report and the forensic science officers report, the PW16-the investigation officer laid the charge sheet against Accused Nos.1 to 3 under Section 302 r/w 34 of IPC.
16. During committal proceeding, the case in PRC No.72 of 2013, was taken on file and made over to the learned VI Additional Sessions Judge, Chennai, in S.C.No.402 of 2013. Charges as stated supra were framed by the trial Court. To prove the charges, the prosecution had examined PW1 to PW16 and marked Ex.P1 to Ex.P21, besides one Material Object-knife M.O.1.
17. The trial Court on consideration of both oral and documentary evidence have come to the conclusion that the charges are proved and accordingly, laid the conviction under Section 302 r/w 34 of IPC and sentenced all the accused, as stated in para No.2 of the judgment and hence, the appeals by the accused.
18. The learned counsel for the appellants/accused 1 and 2, could contend that all the 'independent witnesses' have turned 'hostile' and not https://www.mhc.tn.gov.in/judis 13/26 Crl.A.Nos.405 and 79 of 2018 supported the case of the prosecution and the PW1, who is the 'sister' of the Sathyaraj (deceased) is 'an interested witness' and hence, contended that her evidence cannot be relied upon to convict the appellants/accused 1 and 2. It is further contended that PW3 to PW7, the alleged confession and mahazar witnesses, have turned hostile and therefore, confession statement of accused 1 and 2 vide Ex.P3 and Ex.P4 cannot be relied on to convict the appellants/accused 1 and 2.
19. The learned counsel for the appellant/A3 in Crl.A.No.405 of 2018 could contend that there is an omission in Ex.P1-complaint, as compared with evidence of PW1 and hence, the alleged overtact as against 3rd accused, appellant in Crl.A.No.405/2018 is not made out and hence entitled for acquittal, since the version of PW1 is contrary to Ex.P1.
20. Learned Additional Public Prosecutor made submission in support of the judgment of the learned Sessions Judge.
21. After going through the evidence of three medical witnesses, PW12-Dr.Thangamani, PW13-Dr.S.Ramalingam and PW14-Dr.Rajesh, https://www.mhc.tn.gov.in/judis 14/26 Crl.A.Nos.405 and 79 of 2018 who had issued Ex.P12-Accident Register, Ex.P10-Postmortem certificate and Ex.P11-opinion as to the cause of death, the trial Court has rightly come to the conclusion that the said person [Sathyaraj] has died due to 'homicidal violence'.
22. PW1-Fathima, is the informant. She lodged Ex.P1-complaint on 04.03.2013 and Ex.P2-Complaint on 30.03.2013. The injured was initially discharged on 16.03.2013 and as the complication has arisen from the injury in the throat, subsequently, he was readmitted and he died on 30.03.2013, as per the medical records of the Doctor. PW2, PW3, PW4 and PW7 have turned hostile and not supported the case of the prosecution. The evidence of PW9-Ramadoss and PW10-Mathialagan, are to the effect that the injured was initially discharged on 16.03.2013 and thereafter on 30.03.2013, he was taken to the hospital in the Auto of PW10-Mathialagan and subsequently, he died.
23. The entire case of the prosecution lies upon the oral evidence of PW1 and PW2. On close scanning and scrutiny of evidence of PW1, we find that she is the sister of Sathyaraj and he is facing multiple criminal cases in the Thoraipakkam Police Station and Fort Police https://www.mhc.tn.gov.in/judis 15/26 Crl.A.Nos.405 and 79 of 2018 Station. Before one month to the date of occurrence, the said Sathyaraj had quarrelled with one Mrs.Savithri who is the close relative of the 1st accused Viji @ Vijayakumar. On 04.03.2013 at about 2.40 p.m when she and her younger brother Sathyaraj were going to take lunch in front of Hot Chips Hotel, Parrys Corner, Chennai where the second accused Appanraj and third accused Velu were caught hold of her brother Sathyaraj thereby the first accused Viji caused a cut injury on the neck of the said Sathyaraj. Then the first accused caused two stab injuries on the stomach of the said Sathyaraj indiscriminately thereby he fell down on the earth. Though the passers-by were alerted her to away from the place of occurrence but she refused to go out from there. Thereafter the passers-by had telephoned the Ambulance in which the said Sathyaraj was taken to hospital for treatment. Police officials came there and enquired the same thereby she narrated the occurrence which was reduced into writing in Ex.P1-complaint and she acknowledged her signature found in Ex.P1 complaint.
24. It is her further evidence that on the day of occurrence, she and the said Sathyaraj were returning from seeing their aunt Selvi who is working in the High Court of Madras. After 16 days from the date of https://www.mhc.tn.gov.in/judis 16/26 Crl.A.Nos.405 and 79 of 2018 occurrence, the said Sathyaraj was discharged from the Government Hospital where doctors have advised to them that the said Sathyaraj was suffered cut injuries on the neck so that he could not able to speak. Since the said Sathyaraj was suffocated the doctors gave him tablets. On 30.03.2013 at about night hours 02.00 a.m., when the blood was oozing out from the cut injury of the neck of the said Sathyaraj, P.W.1 arranged one auto to take the said Sathyaraj to the hospital for treatment. However the said Sathyaraj succumbed to the cut injuries suffered on his neck so that P.W.1 Mrs.Fathima had again narrated the incident which was reduced into writing in Ex.P2 complaint.
25. In this case, the evidence of PW2/Babu @ Citi Babu who is running a Spectacle shop, is that he knew the first accused, since he used to buy spectacles from his shop. P.W.2 did not know about the second and third accused. On 04.03.2013 at about 2.30 to 3.00 p.m when he had finished his lunch and was smoking cigarette out of his shop, he heard loud noise thereby he happened to see Sathyaraj with stab injuries. P.W.2 did not see the person who stabbed Sathyaraj but he noticed Sathyaraj's elder sister Fathima was found crying at the place of occurrence so that he enquired her about the occurrence for which she narrated the https://www.mhc.tn.gov.in/judis 17/26 Crl.A.Nos.405 and 79 of 2018 occurrence that due to previous enmity between the accused Viji, and her brother Sathyaraj, the accused viji has stabbed her brother Sathyaraj. Then P.W.2 has advised Fathima to lodge a complaint with police. Then Ambulance came there and took the injured person to hospital for treatment.
26. It remains to be stated that P.W.1 Fathima had identified the first accused Viji @ Vijayakumar and the second accused Appanraj and third accused Velu who caused deadly injuries to said Sathyaraj at the time of assault. P.W.1 Fathima has also identified object M.O.1 knife of which total length 22 CM (14.5x8cm) with name "IKon" carved on it, that was used by the first accused Viji @ Vijayakumar for causing the death of Sathyaraj during the occurrence and besides, the presence of PW1 at the scene of occurrence, at the time of the incident is clearly spoken to by the independent witness viz., PW2, also assumes significance and lend credence to the version of PW1.
27. On a combined reading of chief and cross examination of PW2, who is running a Spectacle Shop at Door No.4, Francis Joseph Street, Chennai, which is a closest point, we find that except not identifying the https://www.mhc.tn.gov.in/judis 18/26 Crl.A.Nos.405 and 79 of 2018 accused, he has narrated the entire story as prescribed by the prosecution, assumes significance. He also clearly deposed the presence of PW1 in the scene of crime along with the injured and hence, we find that from the evidence of PW1, the association of accused 1 to 3 in front of the shop of PW2 in the scene of crime; the assault by the 1st accused while accused 2 and 3 have actively prevented the said Sathyaraj moving from the place; and the attack of the 1st accused with sword on the body of the deceased in the vital organs, duly stands corroborated by PW2 and the cause of the death was also spoken to by the medical evidence of Doctors viz., PW12 to PW14 that due to the injuries sustained, the injured- Sathyaraj died.
28. The evidence of PW1 on the attack inflicted by the accused upon her brother Sathyaraj, is in clear terms and we find that there is not even a minor contradiction as to the assault committed by the 1 st accused with the association of accused 2 and 3, by holding the hands of the deceased. The involvement of all the three accused and the specific attack on the body of the deceased was clearly spoken to by PW1 and on 04.03.2002, Sathyaraj (injured) got admitted in the hospital and after several surgery, he was discharged on 16.03.2013, after a span of 12 https://www.mhc.tn.gov.in/judis 19/26 Crl.A.Nos.405 and 79 of 2018 days treatment and he was advised to manage his suffocation problem with medicines and again on 30.03.2013 since the blood was oozing out of the neck continuously, he was readmitted to hospital and inspite of treatment, he died.
29. It remains to be stated that the medical evidence of PW14, Dr.Rajesh and the injuries found on the dead body as spoken to by PW13-Dr.S.Ramalingam, duly corroborate the injury inflicted by the accused on the body of the deceased as deposed by PW1 and hence, we find that the conviction laid down by the trial Court, cannot be found fault with.
30. Though it is the sole testimony of PW1, the presence of PW1 was duly corroborated by PW2 and her evidence as to the injuries inflicted by 1st accused has been duly corroborated by the medical evidence of the Doctor viz., PW12 to PW14 and she also identified accused 1 to 3 and also identified the M.O.1–Knife and hence, we find that the prosecution has proved the charges beyond reasonable doubt and the evidence of prosecution witnesses are duly corroborated by the medical witnesses.
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31. The presence of 3rd accused was clearly mentioned in Ex.P1- complaint and the active role played by the 3 rd accused has been spoken to by the PW1 in the witness box and hence, we find that the omission of the overtact in the Ex.P1-complaint, would not amount to contradiction especially when certain role played by the 3rd accused has been clearly spelt out in Ex.P1-Complaint, which corroborate the incident.
32. Furthermore, the occurrence took place in a crowded locality in the Francis Joseph Street, in a broad day light, just in front of one of the main gate of High Court, and though PW2, in front of whose shop the incident has taken place, has not mentioned the name of the accused, however supported the entire case of the prosecution without naming the accused.
33. An attempt has been made by the learned counsel for the appellant that in the confession statement of the 1st accused under Ex.P1, it was recorded that M.O.1-Knife was thrown in the garbage bin at Francis Joseph Street, but in the seizure mahazar [Ex.P17], the M.O.1, was recovered from the garbage bin near to EB post at No.2/3, Bakers Street, both the streets are nearby with cross junction. The seizure https://www.mhc.tn.gov.in/judis 21/26 Crl.A.Nos.405 and 79 of 2018 mahazar reflects the place of seizure and hence, we do not find any material contradiction much less contradiction causing doubt on the prosecution theory.
34. As stated supra, immediately after the occurrence, the deceased Sathyaraj was admitted in hospital on 04.03.2013. The stab injuries inflicted by the 1st accused is the cause of the death of the deceased as spoken to by PW12-Doctor. It remains to be stated that though, he was discharged from hospital, he was not fully recovered and suffered suffocation as could be seen from the medical evidence of the Doctors viz., PW13 and PW14. The four vital injuries sustained by the deceased as reflected in Ex.P11 Postmortem report and the evidence of PW13, would show that the prosecution has proved that the injuries, which was caused by the 1st accused, was the definite cause of death of the deceased.
35. It cannot be stated that the motive attributed by the prosecution as against the 1st accused to do away with the deceased was not established by the prosecution. The evidence of PW1 with regard to the motive for the 1st accused to do away with the deceased was clearly spelt out and there was no cross examination on that point by any of the https://www.mhc.tn.gov.in/judis 22/26 Crl.A.Nos.405 and 79 of 2018 defence counsel, assumes significance and hence, we find that merely because PW4, PW5 and PW7 have turned hostile, it cannot affect the case of the prosecution in view of the impeccable evidence of PW1 and PW2. The presence of all the three accused at the place of the occurrence was proved through the evidence of PW1 and further strengthened by the evidence of PW2 and therefore, the learned Sessions Judge has rightly come to the conclusion that accused 2 and 3 have shared common intention as defined under Section 34 of IPC and further, the trial Court has rightly come to the conclusion that the evidence of PW1 was duly corroborated by PW2, even on the strength of Section 8 of the Indian Evidence Act.
36. We also do not find any delay in registering the FIR, since at the time, it was only brutal injuries, the case was registered for offence under Section 307 offence and subsequently after the death, the same was altered into Section 302 IPC. Thus, we find that the charge has been proved by the prosecution by letting in reliable evidence viz., PW1 and PW2, which is duly corroborated by the medical evidence of Doctors and the reasoning assigned by the learned Sessions Judge for laying the conviction under Section 302 read with 34 of IPC, is well considered and https://www.mhc.tn.gov.in/judis 23/26 Crl.A.Nos.405 and 79 of 2018 well merited and does not warrant any interference, in this appeal, as the same does not suffer from any irregularity or illegality either on appreciation of fact or on application of law, as stated supra.
37. Accordingly, we find no merits in this case and both the appeals stand dismissed. The Conviction and Sentence imposed upon the appellants/accused 1 to 3, by the learned VI Additional Sessions Judge, Chennai, in S.C.No.402 of 2013 vide judgment dated 22.12.2017, is hereby confirmed.
38. Since the appellants/accused 1 to 3 are on bail, the trial Court shall take steps to secure the appellants/Accused 1 to 3 to commit them in prison to serve out the remaining period of sentence. The period of sentence already undergone by the appellants/accused, shall be set off under Section 428 of the Code of Criminal Procedure.
(P.N.P.,J.) (TKRJ)
23.12.2022
ars
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To
1. The VI Additional Sessions Judge,
Chennai
2. The Inspector of Police,
B2-Esplanade Police Station,
Chennai.
3. The Public Prosecutor,
Madras High Court, Chennai – 600 104.
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P.N.PRAKASH, J.
and
RMT.TEEKAA RAMAN, J.
ars
Pre-delivery Common Judgment in
Crl.A.Nos.405 and 79 of 2018
23.12.2022
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