The appellant is the accused in S.C.No.36 of 2009 on the file of Principal Sessions Court, Namakkal and he has been convicted for the offence under Section 304 Part II IPC and sentenced to undergo R.I for 7 years and to pay a fine of Rs.5000/- in default to undergo simple imprisonment for six months. Challenging the said conviction and sentence, the appellant has come forward with this appeal.
2. The case of the prosecution is as follows:-
The deceased in this case Kandasamy is the husband of P.W.1. The accused herein is the son of the brother of the deceased Kandasamy. According to the prosecution, the deceased Kandasamy and his wife P.W.1 were residing in the house situated at Salavaiyalar Colony at Veppadai, Erode, in the house arranged by the accused. Subsequently due to some misunderstanding, the accused tortured the deceased to vacate the house on the ground that the house was allotted for the common usage of the people of the said colony. While so, on 29.10.2008, at about 5.30 p.m., when the deceased and his wife P.W.1 were in the said house, the accused came there and enquired the deceased as to why he has not vacated and quarreled with him. When the deceased Kandasamy informed the accused that he will vacate after 6 months, the accused got enraged and scolded the deceased Kandasamy in filthy language. Angered over the refusal of Kandasamy to vacate the house, the accused kicked the deceased two times in his abdomen and went away from the place. The occurrence was witnessed by Sellammal, the wife of the deceased who deposed as P.W.1.
2.2. P.W.1 stated that on the occurrence day, around 5 pm., the accused came to her house and shouted at them to vacate the house. When her husband/the deceased questioned the accused, he immediately kicked her husband on his penis and her husband fell down. On seeing this, she shouted and as she was unable to do anything, she asked her neighbour (P.W.2) to inform her grandson over phone and thereafter took her husband to Pallipalayam for treatment by 8.30 pm. From Pallipalayam, the deceased Kandasamy was taken to G.H.Erode and there the Police came and recorded the statement and enquired. Her husband told them that he was kicked by his brother's son. P.W.1 also stated that while her husband put his signature, she put her thumb impression in the complaint statement. The Thumb Impression of P.W.1 is marked as Ex.P.1. The same is marked as Ex.P.1. The son of the deceased Kandasamy and P.W.1 Sellammal, who deposed as P.W.3 stated that he is residing in Kaveri Gardens, Erode, and doing Dhobi work stated that the accused is his uncle's son and he only arranged accommodation for P.W.1 and deceased Kandasamy at Veppadai, Soudapuram. P.W.3 stated that he was informed by P.W.2 the day after Deepavali at 8.45 p.m., about the occurrence and he immediately rushed to his father's place. Thereafter he arranged for mini auto and took the deceased Kandasamy to hospital. P.W.3 stated that after lodging the complaint at Pallipalayam Police Station, they went to Erode G.H.
2.3 The Special Sub Inspector of Police, who deposed as P.W.10 stated that while he was working as Head Constable in Pallipalayam Police Station, on 29.10.2008, after receiving intimation from G.H.Erode through VHF, went there and recorded the statement of deceased Kandasamy who was taking treatment in M.S.Ward No.3 and registered a case in Pallipalayam Police Station Crime No.1067 of 2008 under
Section 294(b) and
323 of IPC. The complaint statement of the deceased Kandasamy is Ex.P.7 and FIR registered by P.W.10 is marked as Ex.P.8.
2.4. P.W.12, the Sub Inspector of Police stated that on 30.10.2008, while she was on duty in Pallipalayam Police Station, the Head Constable No.448, Chandramohan placed before her the FIR registered in Crime No.1067 of 2008 and she took up investigation by 8 a.m. She reached the occurrence spot at Salavaiyalar colony, Soudapuram at 10 a.m., on 30.10.2008 and prepared Observation Mahazar Ex.P.2 in the presence of witnesses including P.W.4 Dhanapal. Thereafter, she examined and recorded the statement of witnesses and subsequently arrested the accused on the same date by 6 p.m., at Veppadai Four roads. The arrest memo is Ex.P.9. Thereafter P.W.12 on getting intimation from Coimbatore G.H., through VHF Message at about 11 a.m., on 31.10.2008 that the complainant Kandasamy has died, immediately, altered the provisions of FIR into 294 b, 302 IPC and forwarded Ex.P.10 Express FIR to the Inspector of Police. The Rough Sketch prepared by her at the occurrence spot is Ex.P.11.
2.5. P.W.9 Jayaraman stated that on 31.10.2008, while he was on duty at Pallipalayam Police Station, he received the Express FIR in the Station Crime No.1067 of 2008 and handed over the same to the Judicial Magistrate, Thiruchengode by 13.00 hours.
2.6. P.W.13 the then Inspector of Police deposed that on 31.10.2008, on receipt of Express FIR, relating to Pallipalayam Police Station Crime No.1067 of 2008, he conducted inquest on the body of the deceased Kandasamy in the presence of Panchayatdars on 31.10.2008 from 15 hours to 18 hours and the Inquest Report prepared by him is Ex.P.12. Thereafter to ascertain the real cause of death, he gave Ex.P.5 Requisition to conduct Post Mortem on the body of the deceased and the same was forwarded to the Government Hospital, Coimbatore, through Head Constable P.W.11 Ganesan.
2.7. P.W.11 Head Constable Ganesan stated that on 31.10.2008, on direction, he went to Government Medical College Hospital, Coimbatore, at 18 hours and on the next day, identified the deceased body Kandasamy to Doctor for Post Mortem and on completion of the same, handed over the body of the deceased to his relatives and the material recovered from the body to the Inspector of Police. P.W.13 stated that as per Ex.P.13 Form 95, he submitted the white colour dhothi recovered from the body to the court concerned.
2.8. P.W.8, the doctor who conducted autopsy on the body of the deceased Kandasamy on 01.11.2008 deposed as follows:-
He received the requisition Ex.P.5 on 01.11.2008 with regard to conducting of Post Mortem on the body of the deceased Kandasamy, aged 72 years, in Crime No.1067 of 2008 from Pallipalayam Police Station. He also stated that the condition then was rigor mortis was present only in the legs. Moderately nourished body of male aged about 72 years. Finger and toenails are bluish. Hospital bandage seen midline and lateral aspect of both side abdomen. The following ante mortem injuries are seen in the body.
(1) 2 cm surgical sutured wound seen either side of the abdomen (drainage wounds) (2) 22 vertical surgical sutured wound over midline of abdomen. On opening of thorax and abdomen, whole of the omentum found contused. Peritoneal cavity contains blood stained fluid with foul smell about 100 ml. 6 cm sutured wound noted over small intestine 2 feet away from the proximal iliac junction. Liver found coated with infected slough. On dissection scalp, skull and dura, Sub scalp contusion 6 x 4 cm over occipital region. Thin layer of sub arachnoid hemorrhage noted over right side hemispheres and occipital lobe. Other Findings:-
Pleural and peritoneal cavities empty.
Lungs cut section congested Heart: all chambers contain few cc of blood, coronaries patent Hyoid bone intact Stomach: contains about 150 ml of green colour fluid with mixed with rice particles, no specific smell, mucosa congested.
Small intestine: contains about 20 ml of bile stained fluid, no specific smell mucosa congeste.
Liver, spleen, brain and Kidneys cut section congested Urinary bladder empty.
Viscera preserved sent for chemical analysis.
Opinion: Reserved pending chemical examiner's report.
Then P.W.13 in the course of investigation examined the doctors and recorded their statements. He also forwarded the internal organs of the deceased Kandasamy to the Forensic Science Laboratory and received Ex.P.14 report from the Laboratory. Thereafter, on completing his investigation, he laid charge sheet against the accused under
Section 302 IPC on 22.12.2008.
3. To substantiate their claim, the prosecution examined P.Ws.1 to 13 and produced Ex.P.1 to P.14 and M.O.1. On completion of the prosecution evidence, the accused was questioned under
Section 313 Cr.P.C., and he denied the offence in total. The defence did not examine any witness nor produced any document on their side.
4. Having considered the materials placed before it, the trial court found the accused guilty and convicted him as stated in the first paragraph of this judgment. Challenging the same, the appellant/accused is before this court with the criminal appeal.
5. The learned counsel for the appellant contends that there is no evidence to prove the charge against the accused. It is further contended that the trial court failed to consider the medical evidence of Prosecution witnesses 7 and 8 properly. It is the further contention of the appellant that the trial court failed to note the fact that the deceased who claims to have been attacked on 29.10.2008 died subsequently on 31.10.2008 after undergoing surgery for damaged intestine caused due to excess intake of alcohol. The trial court also failed to note that there is delay in sending the FIR to the court concerned. Further except the interested witnesses of P.W.1, who is the wife of the deceased, no other witness is examined to prove the occurrence. It is also pointed out that the evidence adduced by the prosecution is not cogent, reliable and trustworthy. Hence, the learned counsel for the appellant seeks to set aside the finding of the trial court and to allow this appeal.
6. Per contra, the learned Additional Public Prosecutor submitted that from the evidence of P.W.1 and P.W.3, the factum of occurrence and also the motive for the same is clearly established. He further contended that the medical evidence of P.W.8 clearly establishes that the death was caused due to the injury sustained in the abdomen portion by the deceased. The factum of the deceased being kicked inhis abdomen is established by the evidence of P.Ws.1 and 3. Hence, the prosecution contends that there is no infirmity in the judgment of the court below and sought for dismissal of the appeal.
7. I have considered the rival submissions and gone through the records carefully.
8. The only eyewitness to the alleged occurrence is P.W.1 Sellammal who is the wife of the deceased. Admittedly the accused is the son of the deceased Kandasamy's brother. Likewise, it is an admitted fact that the deceased and his wife P.W.1 were residing in the house at Salavaiyalar colony, Veppadai and the same was arranged by the accused herein. The alleged motive for the occurrence as stated by P.W.1 is the act of deceased brother's son with regard to dispute in vacating the residence occupied by the deceased Kandasamy. P.W.1 has stated as follows:-
fhyp bra;tij jtpu ntW ve;j gpur;rida[k; ,y;iy/ ////////////M$h; vjphpaplk; rk;gtj;jpw;F Kd;g[ cwthf jhd; ,Ue;njhk;/ In her chief examination, P.W.1 stated as follows:-
vdJ fzth; ,wg;gjw;F Kd;g[ 5.6 tUlj;jpw;F Kd;g[ M$h; vjphp jdJ tPl;Lf;fhuhplk; tPl;ilf;fhyp bra;a brhd;dhh;/ mjw;F vd; fzth; ehd; ntW tPL ghh;j;Jtpl;L fhypbra;fpnwd; vd;W brhd;dhh;/ Thus according to P.W.1, the only reason for the occurrence is the failure of the deceased Kandasamy to vacate the house in which they were residing. However, P.W.3 who is the son of the deceased and P.W.1 stated in his cross examination as follows:-
gzg;gpur;rid jtpu ntW ve;j gpur;rida[k; fpilahJ/ vd; jfg;gdhh; jdf;Fk; M$h; vjphpf;Fk; gz gpur;rid ,Ug;gjhf vd;dplk; vg;nghJk; Twtpy;iy/ P.W.3 also stated in his chief examination as follows:-
M$h; vjphp vdJ rpj;jg;gh kfd;/ M$h; vjphpjhd; vd;Dila jfg;gdhiu midtUf;Fk; brhe;jkhd bghJ ,lj;jpy; Foitj;jhh;/gzk; bfhLf;fy;th';fy; gpur;rpid rk;ke;jkhd vd; mg;gh FoapUf;Fk; ,lj;jpw;F brd;W Ch;g{uh brhy;ypf;bfhz;oUf;fpwhuh vd;Wk;. tPl;il fhyp bra;a brhd;djhf vd; mk;kh. mg;gh vd;dplk; brhd;dhh;fs;/ Thus according to P.W.3, the dispute relates to money issue but his father never told him about any money dispute between himself and the accused. Further P.W.3 has admitted that his father was asked to vacate from the place meant for common usage of the colony people by the accused. Thus while P.W.1 stated dispute was only because of insistence of the accused to vacate the premises, P.W.3 stated that the issue related to money dispute. However, there is no acceptable material before the court about any money transaction and dispute arising out of it between the accused and the deceased Kandasamy. P.W.1 in her chief examination, stated that the deceased was asked by the accused to vacate the house 5 or 6 years before the occurrence. Thus there is nothing on record to show that immediately prior to the alleged date of occurrence, any such demand was made by the accused. In such circumstances, P.W.1 and P.W.3 evidence has no sufficient and acceptable material to prove any motive for the occurrence.
9. Admittedly, P.W.1 and her husband deceased Kandasamy were residing at Salavaiyalar colony, where number of houses are situated. The occurrence is stated to have taken place at 5 p.m., in the evening. P.W.1 has not stated anything about presence of any other person at the occurrence spot. The other witness P.W.2 has turned hostile and denied any knowledge of occurrence. Thus except the interested witness viz., P.W.1, there is no other independent witness to the occurrence. In such circumstances, it is to be seen when the complaint was lodged about the occurrence.
10. P.W.1 in her evidence has stated that after the accused kicked her husband twice in his penis, at about 5 p.m., she asked the neighbour (P.W.2) to inform her grandson over phone. Thereafter, the deceased was taken to Pallipalayam Hospital by 8.30 p.m. As the hospital in Pallipalayam refused and expressed their inability to treat her husband, the deceased was then taken to Erode G.H., immediately. While she was at hospital, around 12 midnight, police came and enquired her husband. P.W.1 also stated in her evidence that the deceased informed the Police that his brother's son kicked him and in the said statement, signature of her husband and her thumb impression was taken by the Police. Thus according to P.W.1, the complaint was given by her husband while taking treatment in G.H.Erode on the occurrence day itself.
11. However, P.W.10 the then Head Constable attached to Pallipalayam Police Station stated in his evidence that on receipt of V.H.F., information given on 29.10.2008, he went to Erode Government Hospital and recorded statement of Kandasamy, who was taking treatment in the said hospital. The said complaint is Ex.P.7. According to him, he received the information at 1.30 a.m., on 30.10.2008 and he went to the Hospital and recorded the statement of Kandasamy at 4 a.m., on the same date. He also stated that he has not mentioned the time of recording his statement in Ex.P.7. P.W.10 also stated that he did not ascertain from the doctor as to whether the complainant was in fit state of mind to give the complaint. Thus P.W.10 has stated that the complainant's statement of Ex.P.7 was recorded by him at 4 a.m., on 30.10.2008 in Government Hospital, Erode. This is contrary to P.W.1's evidence that the statement was recorded from her husband at 12 midnight by Police. Further P.W.1 in her cross examination has given contradictory evidence regarding the complaint given by her husband. P.W.1 stated that when they reached Erode G.H., her husband was unconscious and the Police did not come during night to record the statement. However, she also stated that she was unaware as to when police came. Subsequently, in her cross examination, P.W.1 stated that police came there, wrote down the statement given by her husband, wherein, it is stated by the deceased that he was assaulted by his brother's son. Subsequently, in her cross examination, P.W.1 stated that next day morning, Police came again, but they did not enquire her husband. P.W.1 also stated that she is unaware as to whether the Police came there on the next day. In her cross examination, P.W.1 further stated that they reached Erode G.H., after 12 midnight and her husband did not open the eyes till the next day morning. She also stated that as her husband was suffering from pain, he was not in the position to talk till the next day morning. As the doctors expressed their inability regarding further treatment, the deceased was taken to Coimbatore Government Hospital. Thus P.W.1 has given contradictory evidence as to whether Police came in the night hours of the occurrence day or the next day morning. P.W.1 also stated that her husband was not conscious and not in a position to speak till the next day morning. In contrary to that, P.W.1 stated that her husband gave statement at midnight and the same was recorded by Police. In such circumstances, doubt arises as to whether really P.W.1 is speaking the truth.
12. Further P.W.10 Head Constable who recorded Ex.P.7 complaint admitted in his cross examination that the last line of statement in Ex.P.7 and the word Kandasamy is very closely written. Pointing it out, the learned counsel for the appellant contended that the complaint statement was written down after obtaining the signature of Kandasamy and that is the reason for last line of statement and the name Kandasamy being written very close. In view of the above stated discussion, doubt arises as to whether the signature of the deceased was obtained in the statement in the manner in which the prosecution claims to have recorded it.
13. Admittedly the deceased Kandasamy was taken to Government Hospital at 8.30 p.m., on the occurrence day, after arrival of P.W.3, his son from Erode. P.W.3 stated that after arriving at his father's house, he took his father in mini auto to Pallipalayam. P.W.3 was categorical in his statement that only after giving complaint at Pallipalayam Police Station, he took his father to Erode G.H. In his chief examination, as well as cross examination, P.W.3 has categorically stated that only after going to Police Station at Pallipalayam, they went to G.H. Erode In that case, the question arises as to when and from whom the complaint was received by the Police at first. According to P.W.3 after lodging the complaint in Pallipalayam Police Station, they went to Hospital. In that case, the question arises as to what happened to the said complaint since Ex.P.7 complaint was subsequently recorded when the deceased was in Erode Government Hospital. It is therefore clear that the prosecution has not established clearly as to whether Ex.P.7 is the first complaint statement received by them and as to what happened to the earlier complaint allegedly given in Pallipalayam Police Station by P.W.3 on the way to Government Hospital, Erode.
14. As stated earlier, there is no eyewitness to the occurrence except P.W.1 the wife of the deceased. P.W.1 stated in her evidence that the accused kicked her husband twice on his penis. However, in her statement under
Section 161 Cr.P.C., before the Police, she has stated that the accused kicked her husband in the abdomen. The trial court stated in its judgment that P.W.1 being an illiterate village lady, such discrepancies are bound to happen. However, in contrast to P.W.1's version, P.W.6 the doctor who admitted the deceased Kandasamy for treatment in G.H.Erode, has stated that the victim told him that two known people kicked him in his stomach on the occurrence day at 5.30 p.m., in his house. Thus whether the victim was assaulted by two persons or one person is to be seen.
15. As stated earlier, P.W.1 has given contradictory evidence about lodging of complaint. Considering the nature of evidence given by her, this court is inclined to feel that her evidence alone is not sufficient to hold that the occurrence took place as alleged by her in view of the contradictions pointed out earlier. According to the prosecution, the victim was kicked twice in his abdomen resulting in his death. However, the defence version is that the victim is addicted to alcohol and due to that, he suffered puncture in his abdomen and in that regard only operation was done to him, which resulted in failure causing the death of the deceased.
16. As stated above, the prosecution version is that the victim was kicked twice in his abdomen by the accused. P.W.6 Doctor Prakash who admitted the deceased in Government Hospital, Erode, stated in his cross examination that if a person was kicked by two persons in his stomach portion, swelling will be seen, but he did not find any swelling in the abdomen portion of the deceased Kandasamy. He also stated that on examination of the deceased, he found Hernia cut near his penis and the Accident Register given by him is Ex.P.3. P.W.6 also stated that he did not find any external injuries and victim informed him that he is suffering from stomach pain. P.W.6 also stated that if a person was addicted to alcohol, intestine can be affected and stomach pain can occur. Thus it is clear from the evidence of P.W.6 that no external injury was found on the deceased Kandasamy. Pointing it out, the learned counsel for the appellant contended that if really the victim was kicked with legs, contusion or swelling would have occurred and in the absence of same, the claim of prosecution is doubtful.
17. As stated above, the defence version is that the victim was alcoholic. He suffered stomach pain due to liver damage and surgery done in that regard failed leading to his death. P.W.7 doctor who gave death intimation to Police stated that he has come to the court with the case sheet of the deceased wherein it is mentioned that the deceased is a chronic alcoholist. P.W.7 also stated that a person addicted to drinking may suffer liver damage and pain due to holes occurring in the intestine. According to him, surgery was done only due to the pain suffered by the victim and he died due to failure of surgery. P.W.8 Dr.Kulandaivel who did the Post Mortem stated in his cross examination that surgery was done on the victim to suture the hole in the intestine and he died due to the injury suffered in his stomach and its consequential effect. The Post Mortem Report given by him is Ex.P.6. It is therefore clear from the evidence of P.Ws.6, 7 and 8 doctors that the deceased did not suffer from any external injury and he has been described as chronic alcoholist and due to failure of surgery done in his intestine, he has died. The trial court disbelieved the evidence of P.Ws.6 and 7 doctors on the ground that no treatment was given by them and concluded that as per P.W.8 doctor's evidence, the deceased could have suffered injury if he had been kicked in his abdomen by anyone, which will prove the prosecution case as correct and true. The trial court also held that even though P.Ws.6 and 7 have not treated the victim, P.W.6 examined the victim and admitted in the hospital for treatment and P.W.7 deposed on the basis of case sheet before the court. P.W.8 also stated that there was hole in the intestine and surgery was done only to correct it. In such circumstances, it is clear that the deceased suffered hole in the intestine. According to the prosecution, the same occurred only because the accused kicked the deceased twice in his abdomen.
18. As stated earlier, there is contradiction about number of persons who assaulted the victim and as to when first statement of accused was given to Police also creates doubt . The circumstances in which Ex.P.7 complaint was given by the complainant also appears to be doubtful for the reasons stated above. The only alleged eyewitness that is P.W.1's evidence does not inspire confidence because in her cross examination, as pointed out earlier, lot of contradictions is there. Further, the motive for the occurrence is also not established. It is also pointed out by the defence that there is a delay in forwarding the express FIR to the court concerned and it creates suspicion in the prosecution claim. The learned counsel for the appellant/accused also pointed out that the occurrence spot is not fixed properly and pointed out the admission of P.W.12, the Inspector of Police who investigated the case, in this regard, in his cross examination, P.W.12 stated as follows:-
rk;gtj;jpw;F Kd;g[ me;j tPL v';F cs;sJ vd;gJ bjhpahJ/ rk;gt ,lj;jpw;F mUfpy; ,Ug;gth;fSk;. rk;gt ,lj;ij milahsk; fhz;gpf;ftpy;iy/ mth; brhd;dij itj;J ,e;j ,lk;jhd; vd;W Kot[ bra;njhk;/ Thus the occurrence spot itself is not identified by anybody to P.W.12, but the occurrence spot was identified on presumption by P.W.12.
19. In the light of the above said discussion, it is clear that the prosecution has not established beyond reasonable doubt the guilt of the accused. Thus the oral and documentary evidence adduced by the prosecution has not established the motive for the occurrence as well as the fact of occurrence itself as alleged by them. The finding of the trial court and reasoning stated for it to conclude that the accused is guilty of the charges levelled against him is not correct and the same is liable to be set aside. In such circumstances, this court is inclined to hold that the charge against the accused is not proved and he is entitled for benefit of doubt. The reasons stated by the trial court to conclude that the accused is guilty of the offence alleged against him is unsustainable and the same is liable to be set aside. Hence, the appeal is to be entertained and the Point is answered accordingly.
20. In the result, the criminal appeal is allowed. The conviction and sentence passed in Sessions Case No.36 of 2009 passed by Principal Sessions Judge, Namakkal, are set aside. The appellant/accused is acquitted. Bail bond, if any executed by him shall stand cancelled. Fine amount, if any paid by him is ordered to be refunded forthwith.