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DEVENDIRAN versus STATE REP. BY

High Court of Madras

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Devendiran v. State rep. by - C.A.NO.1066 OF 1999 [2003] RD-TN 172 (5 March 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 05/03/2003

CORAM

THE HON'BLE MR.JUSTICE N.DHINAKAR

and

THE HON'BLE MR.JUSTICE R.BALASUBRAMANIAN

C.A.NO.1066 OF 1999

1.Devendiran

2.Baskaran ..Appellants -Vs-

State rep. by

The Inspector of Police

Gingee

(Crime No.963/1998) ..Respondent Prayer: Appeal against the judgment dated 30.09.1999 in S.C.No.83/19 99 on the file of the learned Principal Sessions Judge, Villupuram. For Appellant No.1 : Mr.C.M.Gunasekaran

For Appellant No.2 : Mr.B.Pugazhendhi for

Mr.M.Abdul Razak

For Respondent : Mr.M.K.Subramanian, GA

:JUDGMENT



(Judgment of the court was delivered by

Justice R.Balasubramanian)

The appellants are A1 and A2 in S.C.No.83/1999 on the file of the Court of Sessions, Villupuram. They were tried for the following offences: A1 : Sec.324 I.P.C for having caused injury on P.W.1 A2 : Sec.323 I.P.C for having caused injury on P.W.1 A1 : Sec.323 I.P.C for having caused injury on P.W.2 A1&2 : Sec.302 r/w section 34 I.P.C for having caused the death of Ayyavu.

The learned Sessions Judge at the end of the trial found the accused guilty of all the offences referred to above and sentenced A1 to undergo rigorous imprisonment for one year, six months rigorous imprisonment and imprisonment for life for offences under sections 324, 323 and 302 read with section 34 I.P.C respectively. A2 was sentenced to undergo imprisonment for life for the offence under section 302 read with section 34 I.P.C and no separate sentence was imposed on A2 for the offence under section 323 I.P.C. It is th e said judgment of conviction that is in challenge in this appeal. Heard the respective learned counsel appearing for the accused and the learned Government Advocate appearing for the State.

2. The case of the prosecution is that, at about 6.00 p.m on 24.10.1 998 A1 abusing P.W.1 filthily, asked him to come out of the house. During the course of the same transaction, on P.W.1 coming out of the house, A1 attacked him with a knife in his hand on his face and forehead, which was followed by A2 causing a simple injury with a stick on the back of P.W.1. P.W.2 was also attacked by A1 causing simple injuries on her. In the course of the same transaction, A2 with a stick attacked Ayyavu/since deceased on the back side of his head and then on the body twice or thrice, resulting in his death later on and A2 had shared the common intention with A1 at that time. To substantiate their case, the prosecution had examined two witnesses namely, P.Ws.1 and 2 as eye witnesses to the occurrence and both of them are injured eye witnesses. P.W.1 is the son of the deceased and P.W.2 is the daughter-in-law of the deceased. According to P.W.1, his wife, picking up a quarrel with him, left his company; he made several attempts personally as well as through panchayat to get his wife back but failed; he issued a lawyer's notice to his wife; even for that his wife did not respond and therefore he decided to marry again; they were looking out for a bride as a second wife for P.W.1 and his estranged wife, setting up her henchmen, attacked him and the deceased. A1 was having a "Koduval", with which he attacked on his nose and forehead. A2 attacked Ayyavu with a stick. A1 also attacked Ayyavu with a stick. P.W.2, who is the daughter-in-law of the deceased, stepped in and she was also attacked by A1 and A2. Ex.P.1 is the complaint given by him when he was examined in the hospital by the police. P.W.2 had also given evidence regarding the attack on P.W.1 as well as on herself. Her evidence is in total corroboration to the oral evidence of P.W.1 about A1 and A2 attacking the deceased on his head with a stick. P.W.6 is the Casualty Medical Officer in the Government Hospital at Gingee. At 8.10 a.m on 24.10.1998, P.W.1 appeared before him for treatment. He examined him and found on him simple injuries. Ex.P.4 is the accident register issued by him for P.W.1. He also examined P.W.2 on the same day, who complained of pain on both sides of the hip and back. He issued Ex.P.5/accident register. Ayyavu/since deceased also appeared before him and informed that he was attacked with stick and knife and complained of pain on the back of his head. He also complained of pain in both the ears as well as the lower part of the spinal cord. He admitted Ayyavu as an inpatient in the hospital and referred him on 26.10.1998 for better treatment to the Jipmer Hospital at Pondicherry. Ex.P.6 is the accident register given by P.W.6 to Ayyavu. The symptoms as noted in Ex.P.6 are as hereunder:

"Nature of injury and treatment : Alleged/said to have (statement simple, grievous or : been assaulted by two opinion reserved) : known persons by (N.C) : Thadi & knife at 9 p.m

: on 24.10.1998 at his

: house. O/E  Patient conscious, pupils  normal, reacting to light. BP  110/80; Pulse  76/mt. CVS/RS/CNS  NAD Injuries: 1) C/o pain on the occipit. 2) C/o pain over both ears. 3) C/o pain on lower part of lumbar region. Admitted in male ward. Treatment given."

P.W.10 is the Inspector of Police in Gingee Police Station, who came to know that Ayyavu died on 06.11.1998.

3. P.W.9 is the Head Constable on duty in the Investigating Police Station. At 9.00 a.m on 25.10.1998, on receiving information from the Government Hospital at Gingee that P.W.1, P.W.2 and another person by name Ayyavu had sustained injuries, he reached the hospital. By examining P.W.1, he recorded Ex.P.1, which he registered in his police station Crime No.963/1998 for offences under sections 294, 341, 324 and 323 I.P.C. Ex.P.9 is the printed first information report. He sent the material records to the court as well as to the higher officials. At 4.00 p.m on 30.10.1998, he arrested the accused and sent them for judicial remand. He examined P.Ws.1, 2 and Ayyavu and recorded their statements. He prepared Ex.P.10, the rough sketch and Ex.P.2, the observation mahazar, attested by witnesses. He recovered M.Os.1 and 2 from the hayrick near the scene at 12.30 p.m on 25.10.1998 under Ex.P.3 attested by witnesses. Then he sent the case properties to the court. P.W.10 is the Inspector of Police in the Investigating Police Station. He received the intimation that Ayyavu died on 06.1 1.1998. Accordingly he altered the section of offence into one under section 302 I.P.C and prepared Ex.P.11, the altered printed first information report. He was examined by the Inspector of Police. P.W.1 1 is the Investigating Officer, who on receipt of Ex.P.11, took up investigation. Through P.W.8, he sent a requisition to the Government Hospital at Chennai for post mortem. P.W.8 accordingly carried the requisition to the Government Hospital at Chennai for post mortem of the dead body and was present throughout post mortem. P.W.7 is the Medical Officer in the Kilpauk Medical College Hospital at Chennai. On receipt of Ex.P.7 at 11.20 a.m on 07.11.1998, he conducted post mortem on the dead body. During post mortem, he found various symptoms as noted in Ex.P.8, the post mortem report. The symptoms noted therein are as follows:

"Injuries: 1) Abrasion on back of head 3 x 2 cm. 2) On dissection: Sub-scalp haematoma on frontal and occipital region of vault of skull with bruising.

3) Fissured fracture over occipito parietal region of vault of skull 6 cms long.

4) Sub-dural and sub-arachnoid haemorrhage over both occipital, temporal and frontal lobes of brain.

5) Fracture of base of skull involving left anterior cranial fossa 4 cms in length.

6) Bruising of lower abdomen. On dissection: Contusion of lower part of intestine with 150 ml of fluid blood in the abdominal cavity. All the above injuries are ante mortem in nature. Heart: Chambers contained fluid blood. Coronaries  patent. Lungs  congested. Stomach  Empty - No specific smell. Mucosa  congested. Hyoid bone  intact. Liver, Spleen and Kidney  cut section  congested. Bladder  empty."

The Doctor is of the opinion that the deceased died of head injuries.

4. P.W.11 continued the investigation. He examined P.Ws.1 to 3 and conducted inquest over the dead body. Ex.P.12 is the inquest report. He went to the scene of occurrence and by examining P.W.5, recorded his statement. The accused were not available for arrest immediately. At 10.00 p.m on 06.11.1998, he arrested A2 and brought him to the police station. He was then sent for judicial remand. P.W.3 turned hostile. P.W.4 is related to the deceased. He knows the accused. He witnessed A1 hitting on the head of the deceased with a stick and A2 also hitting with a stick likewise. He also would depose that P.Ws.1 and 2 also sustained injuries at the hands of the accused. He would state that Ayyavu was sent to Jipmer Hospital at Pondicherry and then transferred to the Government Hospital at Chennai, where he died. P.W.12 continued the investigation and after completing all the legal formalities, filed the final report in court against the accused on 07.01.1999. When the accused were questioned under section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against them, they denied each and every circumstance put up against them as false and contrary to facts. Neither documentary nor oral evidence is brought before court at their instance.

5. Learned counsel appearing for the respective accused submitted that there is no legal evidence to establish that the deceased died due to the injuries stated to have been caused by the accused as spoken to by P.Ws.1 and 2, assuming they have attacked the deceased. In elaborating this submission, the respective learned counsel took us through the oral evidence of P.W.6, the Doctor, who initially treated P. Ws.1, 2 and the deceased and then, the evidence of P.W.7, the Doctor, who did post mortem on the dead body. It is on record that the deceased died on 06.11.1998 while the occurrence was on 24.10.1998. In view of the time lapse from the date of occurrence till the date of death of Ayyavu, the prosecution must show by documentary as well as oral evidence that right through, the deceased was taking treatment in one hospital or other and the death was due to the injuries sustained. This evidence, according to the learned counsel, is totally lacking. According to the defence, Ayyavu should have sustained injuries elsewhere in a different transaction and those injuries could have resulted in internal injuries, leading to his death. The other submission made by them is that, in Ex.P.1, the complaint, only A2 is shown to have attacked the deceased with stick while in the oral evidence before court, there is a definite improvement that A1 also attacked the deceased. Therefore it is the joint submission of the respective learned counsel that the conviction of the accused for the offence under section 302 read with section 34 I.P.C cannot be legally sustained. They also attacked the conviction of the accused for having caused injuries on P.Ws.1 and 2. We heard the learned Government Advocate on all these points.

6. The occurrence in this case is stated to have taken place at 6.0 0 p.m on 24.10.1998. The evidence of P.Ws.1 and 2 establish beyond doubt that each one of them along with the deceased came to be attacked by A1 and A2 on the evening of 24.10.1998. In the complaint given before the police, only A2 is shown to have attacked the deceased with a stick while in the oral evidence, there is a definite improvement that A1 also attacked the deceased. As such therefore, giving the benefit of such an improvement made in court to A1, we are inclined to hold that the evidence of P.Ws.1 and 2 establish that it is only A2 , who attacked the deceased. No material worth mentioning is available in the evidence of P.Ws.1 and 2 to disbelieve the circumstances in which each one of them came to be attacked besides the attack on the deceased. Therefore we hold that the prosecution had definitely established that P.W.1 came to be attacked by A1 and P.W.2 came to be attacked by A1 and A2. We also hold that the deceased had come to be attacked by A2. The weapons of offence stated to have been used by the accused in causing injuries on the three, are only sticks and they are exhibited as M.Os.1 and 2. At 8.10 p.m on 24.10.1998, P.Ws.1, 2 and the deceased went to the Hospital at Gingee, where P.W.6 treated each one of them and issued Exs.P.4, P.5 and P.6, the respective accident registers. The evidence of P.W.6 shows that Ayyavu complained of pain on the back side of head besides pain on both the ears as well as on the lower part of the spinal cord. A perusal of Ex.P.6 shows that P.W.6 had not noticed any external injuries on the person of Ayyavu/since deceased. In cross examination, this witness would state that the complaints brought to his notice by Ayyavu on the date of his examination may be due to various reasons. P.W.7 is the Doctor at Chennai hospital, who did post mortem on the dead body on 07.11.1998. Admittedly Ayyavu died on 06.11.1998. The prosecution had not produced any material at all either documentary or oral as to what was the treatment given to Ayyavu from 24.10.1998 till 06.11.1998, the date on which he died. P.W.6 would state that even on 26.10.1998 itself he advised Ayyavu to be taken to Jipmer Hospital at Pondicherry. Ayyavu breathed his last in the Kilpauk Medical College Hospital at Chennai. There is no evidence to show that after discharge from the Government Hospital at Gingee, where did Ayyavu go for his further treatment. There is also no evidence to show that Ayyavu ever got admitted in the Jipmer Hospital at Pondicherry or any other hospital immediately after discharge from the hospital at Gingee. There is also no evidence to show under what circumstances and at whose instance Ayyavu came to be shifted from the Jipmer Hospital at Pondicherry to the Government General Hospital at Chennai. Of course we find some details in Ex.P.7/requisition given by the Investigating Officer to the Professor, Department of Forensic Medicine, Government General Hospital, Chennai, which shows that Ayyavu was admitted in the Jipmer Hospital at Pondicherry on being referred from the hospital at Gingee and then on 30.10.1998 he was taken to the Government General Hospital at Chennai, where he was admitted for treatment. The Investigating Officer in this case had not given any evidence on the above aspect. In our opinion, Ex.P.7 by itself, in the absence of medical evidence, would not establish that Ayyavu was admitted in t he Jipmer Hospital at Pondicherry and from where he was transferred to the Government General Hospital at Chennai. There is also no admission records from the Government General Hospital, Chennai for Ayyavu having been admitted there and no records are produced from that hospital also to show as to what was the treatment given to him. It is still worse to note that no records whatsoever is produced from the Government Hospital at Gingee that Ayyavu was discharged from the hospital and when he was discharged. But the fact remains that Ayyavu breathed his last when he was in the Government General Hospital at Chennai. When this being the position, in our considered opinion, it would not be possible to hold that Ayyavu died only due to the injuries stated to have been caused by A1 and A2 on 24.10.1998 as spoken to by P.Ws.1 and 2, assuming what P.Ws.1 and 2 say is true.

7. When questioned in cross examination, P.W.1 would state that his father/since deceased was involved in a road traffic accident about 1 5 years before. In that accident, the cycle in which his father was going, collided with a motor cycle and his father sustained injuries. It is his further admission that Ayyavu was taken to Puthur thrice for fracture treatment. When P.W.1 admitted that his father met with an accident, which he says was about 15 years before, he should have produced the records relating to the said accident and established that the accident was in fact 15 years before. The suggestion put to him that in a quarrel in the village, the witnesses and the deceased came to be attacked, was denied by him as false. Though P.W.1 would deny the suggestion that his father could not even walk inside the house without the help of a supporting stick, P.W.2/his wife would admit that her father-in-law used to walk only with the support of a stick. The suggestion put to P.W.2 that her father-in-law/since deceased came to sustain injuries in a road traffic accident, was denied by her. Therefore on this aspect, her evidence is at variance with the oral evidence of P.W.1. P.W.1 had not produced any document to show what exactly is the nature of injuries s tated to have been sustained by Ayyavu/since deceased in the road traffic accident. Therefore the possibility of the deceased suffering internal head injuries even at that time cannot be totally ruled out, especially taking into account the nature of the accident referred to earlier. When Medical Jurisprudence do not totally rule out any injury sustained long before, if unattended to and not treated, giving room for complication in the latter part of the life, in our considered opinion, a duty is cast upon the prosecution to establish beyond doubt that in the said road traffic accident, assuming it took place 15 years before, Ayyavu, except suffering fracture, had not sustained any other injury. On the facts noted above, we have no hesitation at all in holding that the prosecution in this case must establish by medical evidence, both oral and documentary, that Ayyavu died only due to the injuries shown to have been sustained by him on 24.10.1998 at the hands of the accused. It is all the more so when P.W.6 did not notice any external injuries on the head of Ayyavu at the time of his examination. In Ex.P.6 also no external injuries were noted. Under these circumstances, we have no hesitation in setting aside the conviction of A1 and A2 for the offence under section 302 read with section 34 I.P.C, though the medical evidence shows that the deceased died due to head injuries. In other words, in the absence of any evidence to show that the injuries stated to have been caused by A1 and A2 on Ayyavu on 24.10.1998 are the injuries, which are responsible for the resultant internal injuries leading to his death, the conviction of A1 and A2 for the offence under section 302 read with section 34 I.P.C cannot be legally sustained.

8. Then we applied our mind to the conviction of A1 for offences under sections 324 and 323 I.P.C for having caused injuries on P.Ws.1 and 2 and the conviction of A2 for the offence under section 323 I.P.C for having caused injury on P.W.1. P.Ws.1 and 2 have spoken about the manner in which they came to be attacked by A1 and A2. The medical evidence of P.W.6 coupled with Exs.P.4 and P.5 (accident registers for P.W.1 and P.W.2) do establish that P.Ws.1 and 2 have come to sustain the injuries. Reading the evidence of P.Ws.1 and 2 in the context of the evidence of P.W.6 coupled with the contemporary records, leave no room at all to doubt that they came to sustain the injuries at the hands of A1 and A2 as spoken to by P.Ws.1 and 2. Accordingly we accept the oral evidence of P.Ws.1 and 2 that both the accused are responsible for causing injuries on them and therefore the conviction of A1 for offences under section 323 and 324 I.P.C and the conviction of A2 for the offence under section 323 I.P.C are sustained. Accordingly while setting aside that portion of the judgment of the learned Sessions Judge convicting A1 and A2 for the offence under section 302 read with section 34 I.P.C alone, it is sustained on all other aspects. The resultant position is as follows: A1 and A2 are acquitted of the offence under section 302 read with section 34 I.P.C. The conviction of A1 for offences under sections 32 4 and 323 I.P.C and the consequent sentence imposed on him and the conviction of A2 for the offence under section 323 I.P.C and the consequent sentence imposed on him, are sustained. The appeal is accordingly disposed of. (N.D.J.) (R.B.J.) 05.03.2003 Index: Yes

Internet: Yes

To

1.The Principal Sessions Judge, Villupuram

2.The Judicial Magistrate, Gingee

3.-Do-Through The Chief Judicial Magistrate, Villupuram 4.The District Collector, Villupuram

5.The Director General of Police, Chennai

6.The Public Prosecutor, High Court, Madras

7.The Superintendent of Central Prison, Cuddalore 8.The Inspector of Police, Gingee, Villupuram District vsl




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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