CDJ Law Journals

(Common Prayer: Criminal Appeals filed under Section 415(2) of Bharatiya Nagarik Suraksha Sanhita, 2023, against the judgment of the learned XV Additional Sessions Judge, Chennai, in S.C.No.209 of 2018, dated 18.02.2025.)

Common Judgment:

N. Sathish Kumar, J.

1. Challenging the judgment passed by the learned XV Additional Sessions Judge, Chennai, in S.C.No.209 of 2018, dated 18.02.2025, convicting and sentencing the appellants/accused as follows, A3 has filed the Criminal Appeal in Crl.A.No.236 of 2025 and A4 has filed Crl.A.No.276 of 2025 :

Accused	Conviction	Sentence
A2	Section 341 IPC	One month simple imprisonment
	Section 302 IPC	Life imprisonment and fine of Rs.5,000/-, in default, simple imprisonment for one year
A3 and A4 (Appellants herein)	Section 341 IPC	One month simple imprisonment
	each Section 302 r/w. 34 IPC	Life imprisonment each and fine of Rs.5,000/- each, in default, simple imprisonment for one year
	Since A3 and A4 have been sentenced for the offence under Section 302 r/w. 34 IPC, no separate sentence is imposed for the offence under Section 323 IPC
	The sentences shall run concurrently

2. The case of the prosecution in brief is as follows :

               The deceased Zakir Hussain is the sister’s son of P.W.1. According to P.W.1, the deceased had informed him that the accused A1 to A4 used to involve in altercation with him very often. While so, on 27.01.2017 between 09.00 and 09.30 p.m., while P.W.1 was speaking with P.W.3, namely, Sarath Kumar, near his house, the deceased and P.W.2, namely Aravind, were talking near the Beef Stall. At that time, the accused came in a Car and while A1 caught hold of the hands of the deceased, A2 stabbed the deceased on the left side of his rib with a sharp knife like weapon (M.O.1). On hearing the scream, P.W.1 rushed there and the accused ran away from the scene. P.W.3 took the injured to the K.K.Nagar Government Hospital with the help of P.W.5. P.W.1 followed them in his bike.

3. P.W.15 (Medical Officer attached to the K.K.Nagar Peripheral Hospital) has stated that, on 27.01.2017 at about 08.30 p.m,. the injured was brought to the Hospital. He gave first aid and referred the injured to the Royapettah Government Hospital for further treatment and issued Accident Register (Ex.P9).

4. From the K.K.Nagar Government Hospital, the injured was taken to the Royapettah Government Hospital. P.W.12 (Medical Officer attached to the Royapettah Government Hospital) has stated that, on 27.01.2017, while he was in duty, at about 11.00 p.m., the injured was brought to the hospital by his uncle P.W.1 in an Ambulance. On examination, he found the following injuries :

               (1) Incise wound of 2 x 3 cm on the middle of the chest

               (2) Incise wound of 3 x 0.5 cm on the right side of the chest

               (3) Incise wound of 2 x 0.5 cm on the left side of the chest In respect of the same, he issued Accident Register (Ex.P4).

5. Thereafter, they further referred the injured to Rajiv Gandhi Government Hospital for further treatment. P.W.14 (Medical Officer attached to the Rajiv Gandhi Government Hospital) has stated that the injured was referred from the Royapettah Government Hospital and on examination, he noted the following injuries :

               (1) Laceration of 5 x 1 x 1 cm on the right side of the chest

               (2) Laceration of 2 x 0.5 x 0.5 cm on the left side of the chest On X-ray, he found that the lungs were damaged. Therefore, he conducted a surgery and found the following injuries :

               (1) Laceration of 4 x 1 x 1 cm on the right lung

               (2) Laceration of 4 x 3 x 3 cm on the liver

               (3) Laceration of 4 x 1 x 1 cm on the diaphragm

               He also noted 300 ml of clotted blood in his abdominal region.

6. Thereafter, P.W.1 went to the Police Station and lodged a complaint (Ex.P1). On receipt of the complaint (Ex.P1), P.W.17 (Inspector of Police) registered an FIR in Crime No.221 of 2017 at 02.30 hours for the offences under Sections 341, 323, 307 and 506(ii) IPC as against the accused A1 to A4. The FIR is marked as Ex.P10.

7. After registration of the FIR, he (P.W.17) took up the investigation and went to the place of occurrence at 03.00 a.m. and prepared Observation Mahazar (Ex.P2) and Rough Sketch (Ex.P12) in the presence of witnesses P.W.11 and one Mustafa. Then, he seized the blood stained earth (M.O.4) and ordinary earth (M.O.5) under Seizure Mahazar (Ex.P3).

8. Meanwhile, inspite of treatment, the deceased succumbed to the injuries in the hospital on 28.01.2017 at 05.15 a.m. P.W.14 (Medical Officer attached to the Rajiv Gandhi Government Hospital) reported the death to the Police vide Death Report (Ex.P8). Therefore, the Investigating Officer altered the case into one under Section 302 IPC vide Alteration Report (Ex.P13). Thereafter, he went to the Rajiv Gandhi Government Hospital and conducted inquest over the dead body in the presence of panchayatars and sent the body for postmortem through Head Constable (P.W.16) along with a requisition letter (not marked). The dresses on the body of the deceased were recovered by the Police as M.O.2 and M.O.3. Then, the Investigating Officer proceeded to examine the witnesses.

9. P.W.2 (Aravind) is the friend of the deceased. He has stated that, on 27.01.2017 at around 09.00 p.m., the deceased and he (P.W.2) were consuming alcohol and thereafter, they went to the Beef Stall. There also, they consumed alcohol. P.W.2 slept at that place itself. After sometime, he heard a scream. At that time, he saw P.W.3 taking the deceased to the Hospital. Again, he slept there itself. On the next day, i.e., on 28.01.2017 morning, he heard about the death of his friend (deceased).

10. P.W.3 has stated that, at the relevant point of time, when he was speaking with his friends near the Beef Stall, people shouted that Zakir Hussain was attacked. He saw the injured lying down. Immediately, he (P.W.3) took the deceased to the Hospital with the help of Sadham Hussain (P.W.5).

11. P.W.5 (Sadham Hussain) also saw the injured lying down with blood injuries. He (P.W.5) and P.W.3 took the injured to the K.K.Nagar ESI Hospital.

12. P.W.6 is a close relative of the deceased. On hearing that the deceased was attacked, he went to the K.K.Nagar ESI Hospital. Thereafter, he took the deceased to the Royapettah Government Hospital in an Ambulance. Thereafter, they referred the injured to the Rajiv Gandhi Government Hospital and later, the injured died in the hospital.

13. P.W.7, a neighbouring Shop owner, has also seen the deceased lying down with stab injuries near the Beef Stall.

14. P.W.13 (Medical Officer attached to the Rajiv Gandhi Government Hospital) conducted autopsy on the body of the deceased and noted down the following injuries:

               “Ante mortem injuries :

               1. Irregular dark red abrasions : a) 2 x 1 cm on the front of great toe of right foot; b) 2 x 1 cm on the front of great toe of left foot; c) 2 x 2 cm on the front of the left foot; d) 2 x 0.5 cm, 2 x 1 cm on the outer aspect of upper third of left forearm; e) 1 x 0.5 cm on the midline of middle third of chest, 10 cm from the suprasternal notch; f) 1 x 0.5 cm on the right side of lower lip.

               2. Dark red contused abrasion 2 x 2 x 0.5 cm in the midline of upper and lower lip.

               3. Sutured horizontally oblique stab wound 3 cm with dark red abrasion 0.5 cm on the lower edge, 1 cm to the right of midline and at the level of nipple, with surgical extension 9 cm on the right side, on the lower part of right side of chest; left and upper and right end lower; on removal of sutures, wound margins were regular and gaping and of cavity depth; surgical defect 10 cm in the fourth intercostal space with intact stay sutures approximating fourth and fifth ribs; vertically oblique cut fracture of the costal cartilage of fourth rib; right thoracic cavity; contained 400 ml of dark red blood; right lung collapsed with sutured full thickness stab wound 3 cm in the middle lobe of right lung; cut section : pale; horizontally oblique sutured full thickness stab wound 3 cm on the right dome of diaphragm, 4 cm from the midline; pericardium surgically opened vertically for 6 cm on the right side; horizontally oblique stab wound 2 x 0.5 x 2 cm in the superior surface of right lobe of liver; direction of stab wound – downwards, backwards and from left to right.

               4. Sutured horizontally oblique surgical incised wound 09 cm on the lower part of left side of chest; left end lower and right end upper; on removal of sutures, wound margins were regular and gaping and of cavity depth; surgical defect 9 cm in the third intercostal space with intact stay sutures approximating third and fourth ribs; pericardium surgically opened vertically for 5 cm on the left side; left thoracic cavity : contained 300 ml of dark red blood; left lung : normal in size, cut section : pale.

               5. Dark red diffuse bruising in the muscles of lower third of right side of neck

               6. Vertically oblique cut wound 1 x 0.5 x 0.5 cm on the outer end of left eyebrow

               7. Sutured vertically oblique stab wound 1 cm on the lower part of left side of chest, 21 cm from the midline and 10 cm below the left nipple; on removal of sutures, wound margins, were regular and gaping and of 0.5 cm depth; direction of stab wound : below upwards and forwards and towards right.

               8. On reflection of scalp : Dark red scalp deep bruising 11 x 12 cm on the left side of frontal, left parietal and left temporal regions of scalp; dark red diffuse bruising of left temporalis muscle; Vault, Duramater and Base of Skull : Intact; Brain : Normal in size; cut section : normal.

               9. Sutured surgical incised wound 20 cm on the midline of abdomen : on removal of sutures, wound margins were regular and gaping; Peritoneal cavity : contained 250 ml of blood stained fluid; two fully soaked surgical pads in the subdiaphragmatic space on the right side of upper part of abdomen; one paid is anchored to sutured stab wound in the right dome of diaphragm.

               10. Three needle punctured surgical wound 1 cm apart, in triangular fashion on the upper part of left side of chest – Central Venous Line wound

               11. Surgical incised wound 2 x 1 cm x cavity deep on the upper and outer aspect of right side of chest, in the mid axillary line, 6 cm to the right of nipple – inter costal drainage tube wound

               12. Irregular and complete fracture of the third to fifth ribs on the left side of chest without surrounding soft tissue bruising and extravasation of blood – Resuscitation injury

               13. Irregular and complete fracture of third to fifth ribs on the right side of chest without surrounding soft tissue bruising and extravasation of blood – Resuscitation injury.”

Accordingly, P.W.13 issued the Postmortem Certificate (Ex.P5), opining that the deceased would appear to have died of shock and haemorrhage due to stab injury on the right side of chest.

15. Meanwhile, the Investigating Officer (P.W.17), in continuation of his investigation, arrested A1 and A2 and recorded their confession in the presence of the witnesses P.W.9 and P.W.10. Based on the confession, the Investigating Officer seized the TATA Indica Car bearing Registration No.TN-14-C-7476 used at the time of offence (M.O.6) under Seizure Mahazar (Ex.P14) and the knife (M.O.1) under Seizure Mahazar (Ex.P15). Thereafter, he arrested A3 and A4 and recorded their confession in the presence of P.W.9 and P.W.10. Later, the Investigating Officer sent the accused to the Court for remanding them to judicial custody and also forwarded the material objects to the Court under Form-91 (Exs.P11 and P16). After examining all the witnesses and recording their statements, the Investigating Officer (P.W.17) handed over the case file to P.W.18 (Inspector of Police).

16. P.W.18 (Inspector of Police), after collecting various reports including Blood Test Sample Report (Ex.P6) and Forensic Report (Ex.P7), completed the investigation and filed a final report as against the accused A1 to A4 for the offences under Sections 341, 323, 302 r/w. 34 & 506(ii) IPC in P.R.C.No.26 of 2017 before the XXIII Metropolitan Magistrate Court, Saidapet, Chennai.

17. On appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C.No.209 of 2018 and was made over to the XV Additional Sessions Court, Chennai, for trial.

18. The trial Court framed the charges under Sections 341, 323 and 302 r/w. 34 IPC as against A1, A3 and A4; and Sections 341 and 302 IPC as against A2. When questioned, the accused pleaded “not guilty”.

19. To prove the guilt of the accused, the prosecution examined P.W.1 to P.W.18, marked Exs.P1 to P16 and produced M.O.1 to M.O.6.

20. When the incriminating materials were put to the accused and when the accused were questioned under Section 313 Cr.P.C./Section 351 BNSS, they denied the same. On the side of the defence, no one was examined nor was any document marked.

21. During the pendency of the trial, A1 died.

22. The trial Court, after appreciating the oral and documentary evidence and materials on record, by its judgment dated 18.02.2025, found all the accused guilty of all the offences and convicted and sentenced them as stated supra.

23. Challenging the judgment of conviction and sentence passed by the trial Court, A3 has filed Crl.A.No.236 of 2025 and A4 has filed Crl.A.No.276 of 2025. A2 has not filed any separate Appeal.

24. The main contention of the learned counsel for the appellants/A3 and A4 is that the entire prosecution case is highly doubtful. According to them, there is no overt act attributed to these appellants/A3 and A4. The involvement and presence of the accused A3 and A4 has not been established. According to the prosecution, P.W.1 is the so-called eye-witness to the occurrence. The evidence of P.W.1 is highly doubtful. According to the learned counsel for the appellants, the FIR came to be filed only after the death of the injured. Further, the FIR reached the Court only on the next day i.e., 28.01.2017 at 12.10 p.m. This itself clearly shows that, only after the death of the injured, the complaint under Ex.P1 came to be recorded from P.W.1. Even the evidence of P.W.1 does not prove the guilt of the appellants. The presence of P.W.1 at the place of occurrence is also highly doubtful. His evidence is also totally contrary to the medical evidence. In his evidence, P.W.1 has stated as if A2 caused a single stab injury, whereas, the Medical Officers have noted multiple injuries on the body of the deceased. Though P.W.1 further stated as if the occurrence took place between 09.00 and 09.30 p.m. the evidence of P.W.15 (Medical Officer attached to the K.K. Nagar Peripheral Hospital) clearly shows that the occurrence took place even before 08.30 p.m., which is also evident from the Accident Register (Ex.P9). Therefore, the evidence of P.W.1 is highly doubtful. None of the other witnesses supported the prosecution case. Therefore, it is their contention that the appellants are entitled to the benefit of doubt.

25. Whereas, the learned Additional Public Prosecutor appearing for the State would submit that the deceased is the sister's son of P.W.1. The occurrence took place near the house of P.W.1 and therefore, P.W.1 witnessing the occurrence is natural. Therefore, merely because the other witnesses have not supported the prosecution case, the sole eye-witness evidence of P.W.1 cannot be discarded. Therefore, the trial Court has properly appreciated the evidence on record and has convicted and sentenced the accused, which requires no interference.

26. In the light of the above submissions, the points that arise for consideration in these Appeals is whether the trial Court is right in basing its conviction only by relying upon the sole eye-witness account of P.W.1 and whether the prosecution has proved the guilt of the accused beyond all reasonable doubt.

27. We have perused the entire materials available on record.

28. Absolutely, there is no doubt that conviction can be based on the solitary evidence of an eye-witness, provided the same inspires the confidence of the Court and is reliable and does not suffer from any infirmity. If it satisfies all these ingredients, even such solitary evidence is sufficient to base a conviction.

29. When the entire evidence of P.W.1 is analysed, according to P.W.1, on 27.01.2017 between 09.00 and 09.30 p.m., when he was talking with P.W.3 near his house, the accused came in a car. While A1 caught hold of the deceased, A2 stabbed the deceased. The other accused brandished a knife. Thereafter, P.W.3 Sarathkumar took the injured to the hospital. It is the specific case of P.W.1 that he and P.W.3 were talking at the time when the occurrence took place. The evidence of P.W.3, when carefully seen, indicates that he has never stated that P.W.1 was talking with him at the relevant point of time. Whereas, his evidence shows that, only on hearing the sound from the public that someone had attacked the deceased, he rushed to the spot; at that time, the deceased was already lying down. Immediately, he (P.W.3) took the deceased, along with P.W.5 who is another close relative of the deceased, to the hospital. P.W.3 has never stated that he was talking with P.W.1 at the relevant point of time.

30. It is further to be noted that, according to P.W.1, the deceased and Aravind (P.W.2) were talking at the relevant point of time; at that time, the accused came in a car and attacked the deceased. P.W.2, in his evidence, has stated that he and the deceased consumed alcohol and thereafter, he (P.W.2) slept at that place itself. After some time, he heard some noise and at that time, he saw only P.W.3 taking the deceased to the hospital. Only on the next day, he heard about the death of the deceased. Therefore, the presence of P.W.1 has not been spoken by P.W.2.

31. Further, according to P.W.1, A2 caused only a single stab injury on the left side of the rib of the deceased. His evidence is totally contrary to the medical evidence, since the Medical Officers have noted multiple injuries on the body of the deceased right from the very inception. P.W.15 (Medical Officer attached to the K.K. Nagar Peripheral Hospital), who gave first aid to the deceased, has deposed to the effect that the occurrence took place before 08.30 p.m. In this regard, he has issued the Accident Register (Ex.P9). It is relevant to note that P.W.15 has recorded the statement after ascertaining the facts from the injured himself. The injured had, in fact, informed P.W.15 that he had been attacked by five persons. P.W.15 has noted injuries on the head, face and right side of the rib along with abrasions all over the body. Thereafter, he referred the injured to the Royapettah Government Hospital. P.W.12 (Medical Officer attached to the Royapettah Government Hospital) has noted three stab injuries on the deceased. Thereafter, he was referred to Rajiv Gandhi Government Hospital. P.W.14 (Medical Officer attached to the Rajiv Gandhi Government Hospital) has also noted several injuries. The Medical Officer (P.W.13), who conducted the autopsy, has noted more than 13 ante-mortem injuries, including stab injuries and a vertically oblique cut wound on the left eyebrow, along with many other injuries, which is evident from the Postmortem Certificate (Ex.P5). While so, it is the specific case of P.W.1 that, only a single stab injury was caused by A2. This contradiction creates a serious doubt about the presence of P.W.1 at the place of occurrence.

32. Further, it is relevant to note that P.W.1 is not a third party to the deceased. The deceased is his sister's son. If really P.W.1 was present there, his normal conduct would have been to take the deceased to the hospital. Though he claims that he also went to the hospital on a separate bike, absolutely, there is no material, whatsoever, available on record to show that he had gone to the hospital at the relevant point of time. Whereas, his evidence clearly shows that only P.W.5, who is another relative of the deceased, and P.W.3 took the deceased to the hospital at the first instance.

33. Though P.W.1 claims that he lodged a complaint on the same day night at 02.30 hours, the fact remains that the FIR reached the Court only on 28.01.2017 at 12.10 p.m. This fact clearly suggests that the complaint and FIR were prepared only after the death intimation was received from the Hospital. The delay in sending the FIR to the Court has not been explained. If really P.W.1 was a natural witness, his conduct would have been otherwise. Either he would have rushed to the Police Station or to the hospital immediately after the occurrence. There was no reason as to why he chose to go to the Police Station only at 02.30 a.m. This also creates a serious doubt about his witnessing the occurrence.

34. Considering all these aspects, we are of the view that the presence of P.W.1 in the place of occurrence has not been established by the prosecution. Therefore, it is very unsafe to convict the accused solely on the eye-witness account of P.W.1. Even otherwise, the prosecution has not proved the guilt of any of the accused beyond all reasonable doubt. Therefore, this Court holds that the entire prosecution case is doubtful. Hence, the accused are certainly entitled to the benefit of doubt.

35. At this stage, it is also necessary to consider the case of A2/Rathinaraj, S/o. Balasubramaniam, who has not preferred a separate appeal against the judgment of conviction and sentence passed by the trial Court. In this regard, the Hon'ble Supreme Court, in Sahadevan and another v. State of Tamil Nadu reported in (2012) 6 SCC 403, has held as follows :

               “40. … In view of our above discussion, the last question for consideration of the Court is as to what order, if any, is required to be made against the non-appealing accused, i.e., accused No.1, Chandran. From the prosecution evidence, it is clear that some role had been specifically assigned to the accused Chandran. He is the brother-in-law of the deceased and is stated to have been last seen taking the deceased on the moped whereafter the deceased never returned. In normal circumstances, the obvious result would be to leave the nonappealing accused to undergo the punishment awarded to him in accordance with law. But, where the Court finds that the entire case of the prosecution suffers from material contradictions, the most crucial evidence is not reliable, there are definite and material flaws in the case of the prosecution and the Police has failed to discharge its duties at different steps, in that event, it will be difficult for this Court to leave the non-appealing accused to his fate. Under the Indian criminal jurisprudence, an accused is presumed to be innocent until proven guilty and his liberty can be curtailed by putting him under imprisonment by due process of law only. If the entire case of the prosecution has been found to be unreliable and the prosecution, as a whole, has not been able to prove its case beyond reasonable doubt, then the benefit should accrue to all the accused persons and not merely to the accused who have preferred an appeal against the judgment of conviction. In the case of Raja Ram v. State of Madhya Pradesh [(1994) 2 SCC 568], this Court extended the benefit of conversion of sentence to all the accused, from that under Section 302 IPC to one under Section 304 IPC, including the non-appealing accused. The Court held that in its opinion, the case of the non-appealing accused was not really distinguisbable from other accused persons and it was appropriate that benefit of the judgment should also be extended to the non-appealing accused, Ram Sahai, in that case. Again, in the case of Bijoy Singh v. State of Bihar [(2002) 9 SCC 147], this Court clearly stated the principle that it has set up a judicial precedent that where on evaluation of the case, the Court reaches the conclusion that no conviction of any accused is possible the benefit of that decision must be extended to the co-accused, similarly situated, though he has not challenged the order by way of an appeal. In the case of Pawan Kumar v. State of Haryana [(2003) 11 SCC 241], while referring to the myth of the salutary powers exercisable by the Court under Article 142 of the Constitution for doing complete justice to the parties, the Court opined that powers under Article 136 of the Constitution can be exercised by it even suo motu and that the right to personal liberty guaranteed to the citizens, as enshrined under Article 21 of the Constitution, would be a factor which can be considered by the Court in granting such reliefs. ”

               (emphasis supplied)

36. Similarly, the Hon'ble Supreme Court, in Md. Sajjad @ Raju @ Salim v. State of West Bengal reported in (2017) 8 SCC 757, after granting the benefit of doubt to the appellant on finding that the prosecution had failed to establish the charge beyond reasonable doubt, the Hon'ble Supreme Court directed that the benefit of its decision should also enure to the advantage of the non-appealing accused.

37. Even in Javed Shaukat Ali Qureshi v. State of Gujarat reported in 2023 SCC On Line 1155, the Hon'ble Supreme Court, by relying upon the judgment of the Hon'ble Supreme Court in Pawan Kumar v. State of Haryana reported in (2003) 11 SCC 241 has extended the benefit of acquittal to the non-appealing accused.

38. Therefore, the Supreme Court has consistently held that, where the appellate Court, upon re-appreciation of the entire evidence, comes to the conclusion that the prosecution has failed to establish the entire prosecution case and no conviction of any of the accused can be sustained, the benefit of such finding can also be extended to a non-appealing accused who is similarly situated.

39. In the present case, this Court has already found that the evidence of P.W.1, who is projected as the sole eye-witness to the occurrence, is not worthy of acceptance and his presence at the scene of occurrence itself is doubtful by the evidence of the other witnesses and the medical evidence. His version regarding the manner of occurrence is also inconsistent with the medical evidence. There is unexplained delay in sending the FIR to the Court. The other witnesses have also not supported the case of the prosecution. Thus, the infirmities go to the root of the entire prosecution case. Therefore, we are of the view that the prosecution has failed to establish its case beyond all reasonable doubt.

40. Accordingly, these Criminal Appeals are allowed and the judgment of conviction and sentence passed by the trial Court is set aside and all the accused are acquitted of all the charges framed against them.

41. Though A2 in this case, namely Rathinaraj, S/o.Balasubramaniam, No.46/C, Saidhanagar Annexe, Chinmaiya Nagar, Virugambakkam, Chennai – 600 093, has not filed a separate Appeal before this Court as against the conviction and sentence imposed on him by the trial Court, since this Court has disbelieved the entire prosecution case, the benefit of acquittal should automatically be extended to all the accused in the case. It is submitted by the learned Additional Public Prosecutor that A2 is also undergoing incarceration in the Central Prison-I, Puzhal, Chennai.

42. Therefore, the appellants herein/A3 and A4 and A2 also (who has not filed any appeal before this Court, details given supra) are therefore, directed to be set at liberty forthwith, unless their custody is required in connection with any other case. Fine amount, if any, paid by the accused shall be refunded to them. Consequently, connected miscellaneous petitions are closed.

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