(Prayer: Criminal Appeal filed under Section 374(2) Cr.P.C., against the judgment of the learned VI Additional Sessions Judge, Chennai, in S.C.No.457 of 2012, dated 03.07.2019.

Criminal Appeal filed under Section 374(2) Cr.P.C., against the judgment of the learned VI Additional Sessions Judge, Chennai, in S.C.No.457 of 2012, dated 03.07.2019.

Criminal Appeal filed under Section 374(2) Cr.P.C., against the judgment of the learned VI Additional Sessions Judge, Chennai, in S.C.No.457 of 2012, dated 03.07.2019.)

Common Judgment:

N. Sathish Kumar, J.

Challenging the judgment passed by the learned VI Additional Sessions Judge, Chennai, in S.C.No.457 of 2012, dated 03.07.2019, convicting the appellants (A1 to A3) for the offences under Sections 302 and 302 r/w. 109 IPC and sentencing each of them to undergo life imprisonment, A1 has filed the Appeal in Crl.A.No.553 of 2019; A2 has filed the Appeal in Crl.A.No.181 of 2021; and A3 has filed the Appeal in Crl.A.No.568 of 2019.

2. The case of the prosecution is as follows :

The deceased Vijikuttan is the husband of P.W.1. One Melvin (P.W.11), who was working with the deceased, sought financial assistance from the deceased. Hence, the deceased borrowed a sum of Rs.30,000/-from one Raja (P.W.16) and gave it to Melvin (P.W.11). However, since P.W.11 failed to repay the amount, A1, who is the brother-in-law of the said Raja (P.W.16), along with A2 and A3, came to the house of the deceased and shouted at him to return the amount since the amount was borrowed only by the deceased. The deceased replied that he will ask P.W.11 to repay the amount. This repeated on several occasions and the accused used to intimidate the deceased that he will be done to death if he does not repay the amount. While so, on 16.12.2011 at about 10.30 p.m., when the deceased was in house, he got a call from A1 asking him to come out and thereby, the deceased went out of the house. P.W.1, through the window, saw the accused A1 to A3 standing near her house. Since the accused did not return after some time, P.W.1 looked outside and he was not there. Therefore, she called the deceased over phone several times, however, her call was cut. Therefore, she went in search of the deceased. At that time, near Alagiri Nagar, 4th Street, she (P.W.1) saw the deceased being caught hold by A2 and A3, and A1 stabbed the deceased with a knife (M.O.1). On seeing that, P.W.1 raised an alarm and one Balaji (P.W.6), residing in the opposite street, rushed to the spot and on seeing him coming, the accused persons fled the scene. Thereafter, P.W.1 and P.W.6 took the deceased to the Royapettah Government Hospital, where, they were informed that the deceased had died.

3. P.W.12 is the Medical Officer attached to the Royapettah Government Hospital. While he was in duty, the deceased was brought by P.W.6. According to the statement given by P.W.6, the deceased was stabbed by three people. P.W.12 has noted down the following external injuries :

                          1. Fresh stab injury measuring 5 x 2 cm x lung deep below the right armpit region

                          2. Fresh stab injury on the left side of the chest approximately 5 cm from the midline/sternal region measuring 3 x 1 cm

                          3. Stab injury on the chest about 5 cm away from left nipple measuring 4 x 1 cm x bone deep

                          4. Fresh stab injury on the left side of pelvic region measuring 3 x 1 x 1 cm, 16 cm from the umbilicus

                          5. Fresh stab injury on the left side forehead measuring 2 x 1 cm

                          6. Stab injury on the right posterior region 5 cm from the midline measuring 4 x 2 cm x spine depth

                          7. Cut injury on the pelvic region measuring 4 x 1 cm

                          8. Blood clot over the chest, abdominal and back regions of the body

                          9. Blood stains on the person’s shirt and trousers P.W.12 declared the deceased as brought dead and issued Accident Register (Ex.P15).

4. Thereafter, P.W.1 went to the Police Station along with her sister-in-law Ajitha and gave the complaint (Ex.P1). Based on the complaint, P.W.17 (Inspector of Police) registered an FIR in Crime No.1843 of 2011 for the offences under Sections 342 and 302 IPC as against the accused A1 to A3. The printed FIR is marked as Ex.P19.

5. After registration of FIR, P.W.17 took up the investigation and went to the place of occurrence and prepared Observation Mahazar (Ex.P20) and Rough Sketch (Ex.P21) in the presence of witnesses P.W.4 and one Pandian. He seized blood stained earth (M.O.5) and ordinary earth (M.O.6) and blood stained slippers (M.O.4) under Seizure Mahazar (Ex.P22).

6. Thereafter, the body was taken to the Government Kilpauk Medical College Hospital by one Anandan, Head Constable, on 17.12.2011 at 1.45 p.m., where, P.W.15 (Medical Officer) attached to the said Hospital confirmed the external injuries noted by the Royapettah Government Hospital and sent the body of the deceased for post-mortem and issued Accident Register (Ex.P18).

7. P.W.14 (Medical Officer) conducted autopsy on the body of the deceased and noted the following injuries :

                          “Stab Injuries with clear cut regular margin :

                          1. 7 x 0.5 cm x bone deep, an oblique stab wound with regular margin on the upper part of left side of fore head below the hair line the lower end of the wound was pointed and the upper right end of the wound was obtuse.

                          2. A 3 x 1 cm x bone deep, an oblique stab wound with regular margin on the interior surface of centre of the lower jaw below the chin.

                          3. 5 x 1 cm x peritoneal cavity deep, an oblique stab wound with regular margin on the front of upper part of left side of abdominal and epistaxis region. The upper medial end of the wound was pointed, 1 cm below the costal margin and 1 cm lateral to the front of middle of the abdomen. Injury was cutting the skin, subcutaneous tissues, peritoneum and anterior surface of the left lobe of liver 2 x 1 cm peritoneal cavity containing 50 grams of clotted blood and 500 ml of fluid blood.

                          4. 7 x 3 cm x muscle deep, an oblique stab wound 7 x 3 cm x muscle deep on the outer aspect of right side chest at the level of 5th intercostal spaceat mid auxillary line.

                          5 x 1 cm x muscle deep, an oblique stab wound on the front of lower part of left side of abdomen 2 cm above the left anterio superior spine

                          6. 5 x 1 cm x muscle deep an incised wound on the outer aspect of upper part of left thigh.

                          7. 5 x 1 cm x muscle deep precised wound on the inner aspect of upper part of left left thigh.

                          8. 6 x 1 cm x muscle deep a stab wound on the inner aspect of left thigh.

                          9. 4 x 1 cm x muscle deep on the inner aspect on the upper part of right thigh.

                          Incised wounds :

                          10. 2 x 1 cm x muscle deep on the front of lower part of right thigh

                          11. 6 x 1 cm x muscle deep on back of right hip

                          12. 4 x 1 cm x muscle deep on the back of right thigh

                          13.2 x 1 cm x muscle deep on the back of upper part of right leg

                          14.4 x 1 cm x muscle deep on front of middle of right fore arm”

8. Meanwhile, P.W.17 (Investigating Officer) arrested the accused in the presence of witnesses P.W.5 and one Rajkumar. He recorded the confession statements of all the accused, the admissible portion of which have been marked as Ex.P8 in respect of A1; Ex.P10 in respect of A2; and Ex.P12 in respect of A3. Based on the confession made by the accused, the Investigating Officer went to the house of A1 and seized the knife (M.O.1), blood stained pants and shirts worn by the accused persons at the time of occurrence (M.Os.7 to 12) under Seizure Mahazars (Exs.P24, P26 and P28) in the presence of P.W.5 and one Rajkumar, and sent the Material Objects to the Court under Form-91 (Exs.P23, P25, P27, P29 and P31).

9. P.W.2 is the son of the deceased, who, immediately after receiving a phone call about the death of his father, rushed to the home and at that time, his mother came from the Hospital and she informed him that his father was killed by some people. Thereafter, P.W.1 and her aunt went to the Police Station.

10. P.W.9 also went to the place of the occurrence after P.W.6 called him. He has also seen P.W.1 at the scene of occurrence and stated that the dead body was sent to the Hospital.

11. After recording the statement of P.W.13 (Scientific Officer) who issued Ex.P16 (Forensic Report BIOL 3/12) and other witnesses, and after collecting Exs.P32 and P33 (serology reports) and various other reports, the Investigating Officer (P.W.17) completed the investigation and filed a charge sheet as against the accused A1 to A3 for the offences under Sections 342 and 302 IPC, in P.R.C.No.40 of 2012 before the XVII Metropolitan Magistrate Court, Saidapet, Chennai.

12. 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.457 of 2012 and was made over to the VI Additional Sessions Court, Chennai, for trial.

13. The trial Court framed the charges under Sections 302 IPC as against A1 and under Section 302 r/w. 109 IPC as against A2 and A3. When questioned, the accused pleaded “not guilty”.

14. To prove the guilt of the accused, the prosecution examined P.W.1 to P.W.17, marked Exs.P1 to P33 and produced M.Os.1 to 12.

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

16. The trial Court, after appreciating the oral and documentary evidence and materials on record, by its judgment dated 03.07.2019, found A1 guilty of the offence under Section 302 IPC and A2 and A3 guilty of the offence under Section 302 r/w. 109 IPC and therefore, convicted A1 to A3 for the offences under Sections 302 and 302 r/w. 109 IPC and sentenced each of them to life imprisonment, however, did not impose any fine.

17. Challenging the conviction and sentence, A1 has filed the Appeal in Crl.A.No.553 of 2019; A2 has filed the Appeal in Crl.A.No.181 of 2021; and A3 has filed the Appeal in Crl.A.No.568 of 2019.

18. Learned counsel for the appellants/accused would submit that the entire prosecution case is fraught with serious doubts. Though the prosecution relied upon the so-called eyewitnesses (P.W.1 and P.W.6), their evidence is highly improbable and creates a serious doubt regarding their presence at the place of occurrence. If P.W.1 had lifted her husband to the hospital, her dress would have been stained with blood. Absolutely, no explanation has been offered by the prosecution for the non-seizure of the blood-stained clothes of P.W.1. Further, it is his contention that the specific case of the prosecution is that, on the date of occurrence, A1 called the deceased over the phone, and therefore, the deceased left the house. However, there is absolutely no whisper, whatsoever, about the so-called phone calls. No attempt, whatsoever, was made by the prosecution to trace the phone call details. It is his contention that the evidence of P.W.2, who is the son of the deceased, clearly shows that the evidence of P.W.1 is an afterthought. Furthermore, if P.W.1 was really present and had lifted her husband to the hospital, her statement should have been recorded in the Accident Register (Ex.P15). Instead, the statement is said to have been recorded from P.W.6. Further, it is his contention that the evidence of P.W.1 and P.W.6 indicates as if only one stab was caused by A1. However, the medical evidence clearly shows that there are multiple injuries all over the body, not only on the stomach, but also on the legs and other parts, comprising various other types of injuries, such as incisions and lacerations. This was not spoken by the witnesses at any point of time. Therefore, the possibility of getting such injuries through some other mode cannot be ruled out. It is his further contention that the evidence of P.W.2 clearly shows that his mother knew the accused at the first instance. However, she had, in fact, informed him that his father was killed by "some people." All these facts, coupled with the delay in the FIR reaching the Court, create a serious doubt about the entire prosecution case. The delay in despatching the FIR to the Court has not been explained by the prosecution in any manner. The Constable who handed over the FIR to the Court was also not examined by the prosecution. Further, it is his contention that the serology report did not show that the knife recovered from A1 (M.O.1) contained any bloodstains. Similarly, though a certain blood group was marked on the dresses allegedly seized by the prosecution, some of the material objects seized by the prosecution did not tally with that blood group. All these facts create a serious doubt about the entire prosecution case.

19. Whereas, the learned Government Advocate (Crl. Side) appearing for the State would submit that P.W.1 and P.W.6 are eye-witnesses to the occurrence. P.W.1 is the wife of the deceased. There was no reason for her to implicate the accused intentionally. Merely because blood-stained clothes were not seized from her, that cannot be the sole ground to disbelieve her presence. Further, no motive, whatsoever, has been established against P.W.6 for false implication. His evidence clearly shows that the motive for murder has been clearly established by the prosecution. Hence, he would submit that the trial Court was right in convicting the accused.

20. In the light of the above submissions, the only point that arises for consideration in this Appeal is whether the prosecution has proved its case beyond all reasonable doubt.

21. The motive projected by the prosecution is that the deceased in this case, who is the husband of P.W.1, had helped P.W.11 by borrowing Rs.30,000/- from P.W.16. Since P.W.16 was repeatedly requesting the money back and the deceased had not repaid it, P.W.16 informed him that since he had pledged the jewels of his sister, A1, being his sister’s husband, was demanding the money. Accordingly, A1 to A3 went to the house of the deceased even prior to the occurrence, demanded the money, and informed them that they would come back once again.

22. Accordingly, on the night of 16.12.2011, A1 called the deceased over the phone, and the deceased told P.W.1 that A1 was calling him, pursuant to which, he went out of his house. P.W.1 also saw A1 to A3 standing below her house. After some time, as her husband did not return, she followed him and saw A2 and A3 holding the deceased, while A1 stabbed him. Upon hearing her cry, P.W.6 also rushed to the spot. On seeing him, the accused fled from the place of occurrence. P.W.6 has also supported the case of P.W.1.

23. Ex.P15 (Accident Register), when carefully examined, indicates that P.W.6 brought the deceased to the hospital at the first instance. Dr.Senthil (P.W.12) has also spoken in this regard, stating that only P.W.6 brought the deceased to the hospital. P.W.12 never stated anything about the presence of P.W.1. Be that as it may.

24. When the entire evidence of P.W.1 is carefully examined, according to her, she and her husband were in the house, and it was only after the phone call from A1 that her husband left the house. Thereafter, P.W.1 also tried to reach her husband’s mobile phone. Since her husband did not pick up the calls, she followed him, where she witnessed the occurrence. It is relevant to note that, though she called her husband repeatedly and since the phone was not picked up, she followed him and at that time, she witnessed the occurrence, if the accused A1 had really called the deceased on the fateful day, and it was only pursuant to such a call that the deceased went out of the house, there was no reason as to why the prosecution did not verify the phone calls or call details in this regard. Further, it is the specific case of P.W.1 that she had also repeatedly called her husband at the relevant point of time. Even that fact could have been proved by the prosecution by verifying the call details from P.W.1 to her husband’s mobile phone. No investigation, whatsoever, was done in this regard.

25. P.W.1, in her entire evidence, has not even whispered anything about the Car which was present on the street, though the occurrence took place on the road. It is the admitted case of the prosecution that the car belonging to P.W.8 was very much present. It is the case of P.W.1 and P.W.6 that the occurrence took place on the road and the Observation Mahazar (Ex.P20) clearly shows it as if the occurrence took place on the road and the evidence of P.W.8 clearly shows that blood was scattered on the car. This discrepancy has not been explained by the prosecution. Be that as it may.

26. If P.W.1 was really present and had accompanied P.W.6 to the hospital, the normal spontaneous reaction of P.W.1 would have been to give a statement at the first instance to the Medical Officer. Whereas, before the Medical Officer (P.W.12), only P.W.6, namely Balaji, has stated that some three people had stabbed the deceased. Though P.W.9 has stated that he also saw P.W.1 and P.W.6 at the place of occurrence, the fact remains that it is their specific case that they carried the deceased in an auto. In such a case, certainly, there would have been bloodstains on the clothes of either P.W.1 or P.W.6. Admittedly, no attempt, whatsoever, was made to recover the blood stained clothes.

27. It is further to be noted that P.W.1 did not even go to the Police Station immediately. According to her, after going to the hospital, she came back to her house and later, went to the Police Station along with her sister-in-law Ajitha and lodged the complaint at 1.00 p.m. It is relevant to note that Ex.P1 complaint is said to have been given for the first time at 1.00 a.m. on 17.12.2011. The FIR is stated to have been registered at the same time; whereas, her signature is admittedly not found on the printed FIR.

28. If P.W.1 was really present at the place of occurrence and had seen all the accused, her normal conduct would be to inform her close relatives of the same. P.W.2 is the son of the deceased and P.W.1. He immediately rushed to the house after hearing that his father was murdered. Even at that time, when P.W.2 reached the house, P.W.1, who had allegedly witnessed the occurrence, never whispered anything about the accused to P.W.2. The evidence of P.W.2 clearly shows as if his mother had told him that his father was murdered by some people. If P.W.1 was really a witness to the occurrence and had seen all three accused, she would have been in a position to name each one of them. The normal conduct of any wife, who had witnessed such an occurrence, would be to disclose to her own son the names of the accused and the manner in which they unleashed violence on her husband. Whereas, the evidence of P.W.2 clearly shows that his mother merely told him that some people had killed his father. Only thereafter, his mother and his aunt went to the Police Station to lodge a complaint. This aspect creates a serious doubt about the presence of P.W.1.

29. Though P.W.6 also claims to have witnessed the occurrence, the evidence of P.W.1 and P.W.6 indicates as if there was only one stab injury caused by A1, while A2 and A3 caught hold of the deceased. However, when their evidence is analysed along with the medical evidence, particularly, the Accident Register copy (Ex.P15) as well as the Post-Mortem Certificate (Ex.P17), it shows that there are multiple injuries all over the body, not only on the chest and stomach, but also on the legs and other parts. Apart from that, incision wounds and laceration wounds were also noted by the Medical Officers. If the knife (M.O.1) was used for stabbing, normally, only an incision wound would be caused. A laceration wound is typically caused by an irregular weapon, not by a sharp weapon like M.O.1. Further, the nature of the injuries found all over the body indicates that the medical evidence is totally inconsistent with the evidence of P.W.1 and P.W.6, whose evidence shows as if there was only one stab injury. It is not the case of P.W.1 or P.W.6 that repeated injuries were caused by A1 when they witnessed the occurrence. Therefore, this circumstance also creates a serious doubt as to whether P.W.1 and P.W.6 actually witnessed the occurrence.

30. It is further to be noted that, if the complaint was really given on the same night at 1.00 a.m., and the FIR was registered at the same time, there was no reason why the FIR was not sent to the Court immediately. Instead, the FIR reached the Magistrate Court only on 17.12.2011 at 6:05 p.m. The unexplained delay of more than 18 hours in despatching the FIR and the complaint to the Court also creates a serious doubt about the prosecution case. This fact leads to the sole inference that the FIR was registered only after the arrest of the accused.

31. Further, it is the case of the prosecution that the accused were arrested at 10.00 a.m. the next morning, i.e., on 17.12.2011. Though the recovery was spoken by P.W.5, the seizure of blood-stained clothes of three persons allegedly made from beneath the cot of A1, is attached with artificiality. It is against the normal conduct of any person to conceal the blood-stained clothes of several individuals inside the house, particularly beneath a cot. Moreover, the family members of the accused were not examined at the relevant point in time. Therefore, the very nature of the seizure effected pursuant to the alleged confession of the accused is highly

32. To sum up, (i) the failure of the prosecution to collect a vital evidence by examining the call details of the deceased, P.W.1 and A1, to establish the motive; (ii) the inconsistency of the nature of the injuries spoken by P.W.1 with the medical evidence, coupled with the absence of any statement in Accident Register (Ex.P15) showing the presence of P.W.1 before the Medical Officer (P.W.12) at the first instance, non-seizure of blood stained clothes of P.W.1 and P.W.6, non-disclosure of names of the accused to her son P.W.2 by P.W.1 to prove the presence of P.W.1; (iii) delay of 18 hours in despatching the FIR to the Court; and (iv) artificiality attached to the alleged seizure from the house of A1 based on his confession; all these inherent doubts arise across the entire prosecution case.

33. Considering all these aspects, we hold that the prosecution has not proved its case beyond reasonable doubt and therefore, the accused are certainly entitled to benefit of doubt.

34. Accordingly, these Criminal Appeals are allowed, and the judgment of conviction and sentence passed by the trial Court, is set aside by extending the benefit of doubt to all the accused, A1 to A3. The appellants/accused are acquitted of all the charges framed against them. Bail bonds executed by the appellants/accused, if any, shall stand discharged.