C O M M O N J U D G M E N T These appeals arise against the judgment of learned Principal Sessions Judge, Puducherry passed in S.C.No.44/2005 dated 29.01.2008, convicting appellants/accused for offences under sections 304 part II & 323 r/w 34 of IPC and sentencing each of the accused to undergo 5 years R.I and fine of Rs. 500/- i/d 3 months R.I.
2. The case of prosecution is that P.W.1 Anjalatchi is the wife of the deceased Sarangan. Deceased was an agricultural coolie. The accused persons belong to Koonichampet, Puducherry within the limits of Thirukkanur Police Station. On 10.03.2005, at about 05.00 a.m., P.W.4 Rajamani, took the deceased Sarangan to Koonichampet along with P.W.2 Subramanian and some others for sugarcane cutting work. On 10.03.2005 at about 08.00 p.m., near the arrack shop at Koonichampet, first accused Arumugam way-laid the deceased Sarangan, and fisted his face, and the second accused [email protected] fisted his stomach and both the accused kicked him as deceased did not return a cycle belonging to first accused Arumugam. When P.W.2 intervened, both accused fisted P.W.2 on his back, and also kicked the deceased Sarangan on his private parts. Deceased sustained bleeding injury, fell down and became unconscious. Both accused ran away. P.W.2 after informing the incident to P.W.6 Venkatesan, took the deceased Sarangan to the motor shed situated in the sugarcane field of P.W.6. They slept. The next morning i.e. 11.03.2005, P.W.7 Saravanan and one Raja gave deceased hot water fermentation. P.W.4, P.W.8 Kathavarayan and one Nagappan went to the sugarcane field, and P.W.2 narrated the incident to P.W.4 who removed the blood-stained shirt of the deceased Sarangan and kept it in the motor shed, gave deceased another shirt and at about 12.00 noon, P.W.4 took him on his cycle to the house of the deceased and informed his wife P.W.1. Both P.W.4 and P.W.1 took the deceased Sarangan to P.W.9, Doctor, who gave him first aid at 01.00 p.m. and required to go to Villupuram General Hospital. They took the deceased Sarangan to his house. As his condition deteriorated P.W.1 took him to JIPMER hospital on the sameday. P.W.12, Duty Doctor, admitted the deceased Sarangan in the emergency ward for treatment at around 10.00 p.m. P.W.1 informed P.W.12 that deceased fell down from a coconut tree of 20 feet height and sustained injury on his stomach and private parts. Sarangan died, despite treatment on 14.03.2005, at around 12.30 a.m.
3. P.W.1 Anjalatchi went to Thirukkanur Police Station on 13.03.2005, at about 03.00 p.m. and gave an oral complaint. P.W.11, Sub-Inspector of Police, registered a case in Crime No.59/2005 on the file of the respondent Police u/s 341, 325,
323 r/w 34 of IPC. Printed FIR is Ex.P.8. Then P.W.11 seized blood-stained shirt M.O.1 which was handed over by one Nagappan, under Ex.P.4 Form-95 and examined P.W.1. He went to the place of occurrence, prepared rough sketch Ex.P.12, observation mahazar Ex.P.2 and crime details form Ex.P.3 in the presence of P.W.3 Kamalkannan and one Srinivasan. At 08.45 p.m., he obtained intimation Ex.P.11 from P.W.12, Doctor of the JIPMER O.P. Police Station. On 14.03.2005 at about 07.00 a.m, P.W.2 Subramanian came to the Thirukkanur Police Station and informed about the incident and his sustaining injury therein. PW-11 recorded his statement, sent him to Mannadipet Hospital for treatment. P.W.2's wound certificate is Ex.P.9. He received information from JIPMER O.P.Police Station at 08.50 a.m, that at about 12.30 a.m, the deceased Sarangan expired. He handed over the case file to Inspector of Police P.W.14 for further investigation. P.W.14, Inspector of Police altered FIR to reflect
sections 341,304,323 r/w.34 of IPC, vide alteration report Ex.P.12, obtained death intimation Ex.P.14 from JIPMER Hospital, conducted inquest on the body of the deceased between 12.00 hours and 16.00 hours in the presence of panchayatdars, witnesses Subramani and Seetharaman and 3 others and prepared inquest report Ex.P.15. The body was sent for postmortem examination. After post-mortem the body was handed over to relatives of the deceased. Ex.P.5 is the Post-Mortem Report dated 14.03.2005 issued by JIPMER Hospital, Puducherry, which reads thus:
Dead body of a male. No clothes were seen present on the body. Rigor mortis was present in the neck and upper limbs only. Post-mortem staining was not appreciable. Eyes : Cornea hazy. Conjunctiva Pale. Tongue was behind the jaws. Teeth Normal.
Scalp hair 6 cms, partly black and partly white in a ratio of 40:60. Moustache and beard 0.3 cms. Axillary hair and pubic hair Shaved. All natural orifices normal. The dead body was kept in the cold storage room prior to autopsy.
8. Injuries (Antemortem) : The following recent, therapeutic injuries were observed:-
1.A sutured wound, transversely situated in the mid-axillary plane of the right 5th intercostal space. On cutting open the sutures it was found to be 3.1 cms in length and was pleura deep, incised wound.
2.A midline sutured wound extending from the xiphisternum downwards was situated in the abdomen. On cutting open the sutures it was found to be 21.8 cms in length and was peritoneum deep.
INTERNAL EXAMINATION
9. Head (Scalp, skull brain, meninges and blood vessels) (Brain : M:1400 gms / F : 1275 gms) : Scalp and skull - Normal.
Brain and meninges congested.
10. Neck structures (skin, muscles, hyoid, thyroid cartilage, larynx, trachea, bronchi, etc., ) : All neck structures including hyoid bone were normal. 11. THROAX a) Chest wall - A sutured wound, transversely situated in the mid-axillary plane of the right 5th intercostal space. On cutting open the sutures it was found to be 3.1 cms in length and was pleura deep, incised wound. b) Pleural Cavity - 20 ml of recent haemorrhage was situated in the right pleural cavity while the left was unremarkable. c) Mediastinum - Normal d) Oesophageus - Normal e) Bronchi : Mucosa Congested. f) Lungs Right : (360 570 gms) Left : (325 480 gms) : Both lungs were markedly congested and oedematous. g) Heart and Pericardium (Heart : M 300 gms / F : 250 gms):
The pericardium was unremarkable. The heart weighed 310 gms. All the three coronaries showed varying degrees of atherosclerosis and were partly patent. Examination of the valves, orifices and chambers of the heart did not reveal any pathology. The myocardium was unremarkable.
h) Blood Vessels : Abdominal aorta showed atherosclerosis. i) Diaphragm : Inferior surface showed purulent exudate. 12. ABDOMEN AND PELVIS
a) Abdominal Wall - A midline sutured wound extending from the xiphisternum downwards was situated in the abdomen. On cutting open the sutures it was found to be 21.8 cms in length and was peritoneum deep.
b) Peritoneum - Contained purulent exudate forming a coating of the serosal surfaces of the various abdominal organs.
c) Stomach and contents - Stomach contained 10 ml of dark greenish fluid with no particular odour; Mucosa Congested.
Small Intestine : 57 cms proximal to the ileo-colic junction, there was a surgical anastomosis of the small intestine, of the end to end type. The mesentery showed a sutured 3.7 cms in length.
e) Large intestine : Congested f) Liver and gall bladder (Liver: 1400 1500 gms) : Congested - Congested g) Spleen (150 200 gms) : Congested h) Pancreas ( 90 120 gms) : Congested i) Kidneys, ureters and adrenals (Kidney : M : 120 220 gms/ F : 120 175 gms) : Congested - Congested - Congested j) Urinary bladder (Capacity : 250 ml) : Empty - Congested k) Genital organs : Normal 13. Muscles and bones : Normal 14. Spine : Normal 15. Viscera preserved for chemical analysis : Yes a) Stomach and contents, and one foot of small intestine and contents: b) Half Kg. of liver and one half of each kidney : c) 150 ml of blood : d) Sample of preservative used (Saturated solution of Sodium Chloride):
One part of the left ventricle (myocardium) was sent to the Dept. of Pathology, JIPMER for histopathological examination.
16. Opinion regarding the cause of death:
OPINION RESERVED PENDING THE RECEIPT OF CHEMICAL EXAMINER'S REPORT AND HISTOPATHOLOGICAL EXAMINATION REPORT.' PW-14 arrested the accused Arumugam and Velu on 15.03.2005 and sent them to Court for remand. He examined Dr. Mathivanan, P.W.9 on 01.04.2005. He examined PW-12, Doctor, who admitted the deceased Sarangan in JIPMER Hospital, and PW-10, Doctor, who conducted autopsy on the body of the deceased Sarangan, and recorded their statements on 02.05.2005. P.W.14, Inspector of Police examined Dr.Vimalakaran, who treated P.W.2, Subramanian and issued Wound Certificate Ex.P.9 and recorded his statement on 16.05.2005. He examined other witnesses and recorded their statements on different dates, and after completion of investigation, on 06.06.2005, he laid charge sheet against the accused persons for offences u/s.341, 304-II, 323 r/w. 34 of IPC before learned Judicial Magistrate I, Puducherry. On committal, the case was tried in S.C.No.44 of 2005 on the file of learned Principal Sessions Judge, Puducherry.
4. Before the trial Court, the prosecution examined 14 witnesses, marked 15 exhibits and 1 material object. No witnesses were examined on the side of defence and no exhibits were marked. On appreciation of materials before it, trial Court, under judgment dated 29.01.2008, convicted appellants/accused for offences under
section 304 part II & 323 r/w 34 of IPC. There against, these appeals are filed.
5. Heard learned counsels for appellants and learned Additional Public Prosecutor for respondent.
6. On consideration of rival submissions and perusal of records, this Court finds that Ex.P.7, Final Opinion Report on the death of the deceased, informed the same as owing to septicaemia following blunt trauma to the abdomen with resulting injury to the small intestine with post-operative myocardial infarction. Even if the prosecution case of injuries having been caused by these appellants to the deceased is to be accepted, for the purpose of appreciation, it is seen that death has been occasioned not owing thereto but owing to septicaemia. No offence under
Section 304(2) IPC is made out. The prosecution is left with the evidence of P.W.2 injured witness. The conviction for findings under
Section 323 when the accused have also been convicted for offence under
Section 323 IPC. It is the evidence of P.W.2 that in cross examination, P.W.2, the person allegedly suffered injury at the hands of the appellant have stated that his wife was taken to the Police Station and beaten towards obtaining information on his whereabouts and he had gone to the Police Station and stated that he knew nothing about the occurrence and that the deceased had suffered injury upon falling from a coconut tree. Ex.P.11 issued by JIPMER Hospital informs of the deceased having attended to casuality department at 10:00 p.m on 11.03.2005 and that it was informed that he had suffered a fall from coconut tree of 20 feet height around 10:30 a.m on 11.03.2005. Ex.P.9 Wound Certificate of P.W.2 though informs he has not suffered any assault at the hands of two known persons viz., appellants herein, it also reveals that on 10.03.2005 at 08:00 p.m., P.W.2 went to the hospital only on 14.03.2005 at 08:45 a.m.
7. According to P.W.12, Ex.P.14 issued by the JIPMER Hospital informs that the deceased in the case died on 14.03.2005 at 12:30 a.m. Thus, it is only after the death, P.W.2 has been sent to hospital on 14.03.2005 at about 07:00 a.m. and the alleged recording of the FIR i.e Ex.P.8 at 15:00 hours on 13.03.2005 is most suspect, particularly, since the same has reached the Magistrate only on 14.03.2005 at 05:00 p.m. The prosecution case bristles with several infirmities.
These Criminal Appeals are allowed. The judgment of learned Principal Sessions Judge, Puducherry passed in S.C.No.44/2005 dated 29.01.2008 is set aside. Appellants/accused are acquitted of all charges. Fine, if any, paid shall be refunded. Bail bonds, if any, executed shall stand cancelled.
01.08.2017 Index : Yes / No Internet: Yes mrr C.T. SELVAM, J mrr To 1.The Principal Sessions Judge, Puducherry. 2.The Inspector of Police, Thirukkanur Police Station, Puducherry. 3.The Station House Officer, Thirukkanur Police Station, Puducherry. 4.The Public Prosecutor, High Court, Chennai. Criminal Appeal Nos.150 of 2008 & 156 of 2009 01.08.2017