Madras High Court
Murugesan vs The State Represented By on 3 December, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 03.12.2021.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.No.293 of 2019
1. Murugesan
2. Sekar
3. Satishkumar ... Appellants
vs.
The State represented by,
The Inspector of Police,
Anuparpalayam Police Station,
Tiruppur District.
(Crime No.981 of 2015) ... Respondent
Prayer: Criminal Appeal filed under Section 374(2) of Criminal Code
Procedure, to set aside the conviction and sentence passed by the learned II-
Additional District cum Sessions Judge, Tiruppur made in Sessions Case
No.156 of 2016, dated 30.01.2019.
For Appellants : Mr. John Sathyan
for Mr.MA.P.Thangavel.
For Respondent : Mr.S.Sugendran
1
https://www.mhc.tn.gov.in/judis
2
Govt. Advocate (Crl.Side)
JUDGMENT
The Criminal Appeal seeking to set aside the conviction and sentence
passed by the learned II Additional and Sessions Judge, Tirupur in
S.C.No.156 of 2016, dated 30.01.2019 finding that the accused guilty for the
offence under Section 304(ii) IPC and sentenced them to undergo rigorous
imprisonment for ten years and to pay a fine of Rs.2,000/- each and in default
to undergo rigorous imprisonment for three months.
2. Brief facts of the prosecution case is as follows :-
PW1/Nagajothi is the wife of victim/Senthil. PW2/Ganesan is
younger brother of victim. PW3/Saravana Kumar is co-brother of the victim.
On 27.09.2015, at about 8.00 p.m. PW2 had gone to the house of his brother
Senthil and asked him to give the weighing machine to sell the same in order
to settle his liability. The victim had insisted to retain weighing machine and
there was a quarrel and altercation between brothers. Hearing the commotion,
A1/Murugesan had questioned PW2 as to why he was shouting and had
slapped him. Seeing that the victim had questioned the first accused as to
https://www.mhc.tn.gov.in/judis
why he had slapped his brother and had told A1 that it was a fight between
brothers and they would settle the matter among themselves. Pursuant to the
wordy altercation, A1 had pushed the victim/Senthil and punched him on his
stomach and thereafter, A2 and A3 have joined A1 and all the three had
kicked the victim on his stomach repeatedly. PW3 who is the co-brother of
the victim was also informed about the incident. On the very night on
27.09.2015, victim/Senthil was taken to Jacob hospital at 9.30.p.m., where he
was examined by PW10/Dr.Suresh Kumar and later Senthil was referred to
Saran Hospital. However, he went back home and on the next day, i.e.,
28.09.2015, Senthil was taken to Saran Hospital at about 9.50a.m., where he
was examined by PW5/Dr.Palanisamy and scan was taken, since the family
members of the victim insisted to go to Government Hospital. PW5 had
issued Ex.P3/discharge certificate and had referred the victim to Coimbatore
Government Medical College Hospital for getting a surgery done at the
earliest.
3. On 28.09.2015, PW8/Kalimuthu, Head constable of the respondent
police station received the information from Saran Hospital regarding the
https://www.mhc.tn.gov.in/judis
injury to Senthil. He had gone to the Saran Hospital and he came to know
that victim/Senthil was shifted to Coimbatore Government Medical College
Hospital. Thereafter, PW8 had reached Government Hospital at around
9.00p.m. and finding that Senthil was not in a position to speak and recorded
the statement of PW1. PW8 returned to the police station at around
11.00p.m. and registered a case in Crime No.981 of 2015 for the offences
punishable under Sections 294(b), 324, 506(ii) IPC. PW9/Sub Inspector of
Police of the respondent police station took up the investigation and reached
the scene of occurrence at 6.00a.m. on 29.09.2015 and prepared Observation
Mahazar/Ex.P4 in the presence of PW6/Murthy and another, thereafter
prepared rough sketch/Ex.P7 and examined PW2 and PW3 and recorded their
statements under Section 161(3) Cr.PC. Once again, PW9 went to the
hospital, since Senthil was not in a position to speak, he examined his wife
and recorded her statement. Thereafter, on the same day, the accused on
being identified by PW2, arrested the accused at about 12noon and brought
them to the police station at about 12.30pm and thereafter remanded them to
judicial custody. In the mean time, on 28.09.2015, PW11/Dr.Narayanamurthy
and Doctors along with him attached to the Coimbatore Government Medical
https://www.mhc.tn.gov.in/judis
College Hospital performed surgery on Senthil. Since the surgery was not
successful, another surgery was performed to Senthil by PW11 on 20.10.2015
and further treatment was given. Despite treatment, Senthil died on
14.12.2015 at 10.30 p.m. On receipt of information about the death of
Senthil, PW12/Jayachandran, Sub Inspector of Police who succeed PW9,
deputed PW8 to receive death intimation from the hospital and took up the
investigation and examined witnesses, as the witnesses reiterated the same
statement, PW9 did not recorded any further statement from them.
Thereafter, the offence was altered to one under Section 302 IPC and the
altered FIR/Ex.P5 was despatched to Judicial Magistrate No.1, Tiruppur.
PW14/Shanmugam Inspector of Police took up further investigation on
15.12.2015 and reached the Coimbatore Government Medical College
Hospital at about 7.30p.m. and conducted the inquest on the body of the
deceased in the presence of Panchayatars and examined the witnesses. Ex.P9
is the inquest report. Thereafter, PW14 given a request to PW13 to conduct
autopsy on the deceased Senthil. PW13/Doctor who conducted autopsy and
opined that the deceased would appear to have died due to blunt injuries in
the abdomen and its complications. Ex.P8 is the postmortem report. PW14
https://www.mhc.tn.gov.in/judis
effected arrest of the accused on 17.12.2015 at 1.00 p.m. in the presence of
the PW4/Shanmughavel and recorded the confession given by the A1. PW14
continued the investigation and examined the witnesses and recorded their
statements and seized documents.
4. After completion of investigation, PW14 obtained opinion from the
Deputy Director of Prosecution and laid final report against the accused on
12.12.2016 for the offence under Section 302 IPC. The final report was
taken on file by the Judicial Magistrate I, Tirupur in P.R.C.No.13 of 2016 and
on appearance of the accused copies were furnished to them under Section
207 Cr.PC. The Magistrate finding that the case was exclusively triable by
the Court of Sessions and committed the case to the learned Principal District
and Sessions Judge, Tiruppur and the case was taken up in S.C.No.156 of
2016 and made over to the Trial Court for trial. The accused when
questioned denied the charges and sought to be tried. The trial Court after
hearing the accused and the prosecution framed charges against the accused
for the offence under Section 302 IPC.
5. On the side of the prosecution, PW1 to PW14 were examined and
Ex.P1 to Ex.P9 were marked. When the accused were questioned under
https://www.mhc.tn.gov.in/judis
Section 313 Cr.P.C, they denied the charges, further no witness were
examined or documents were marked on the side of the accused.
6. The Trial Court after hearing the prosecution and the accused found
them not guilty for the offence under Section 302 IPC, whereas found them
guilty for the offence under Section 304(ii) IPC and convicted and sentenced
them as stated above. As against the judgment of conviction and sentence, the
present appeal has been filed by the appellants/accused.
7. Assailing the judgment of conviction and sentence, Mr.John
Sathyan, the learned counsel for the appellants would submit that at the outset
the incident is alleged to have taken place on 27.09.2015 @ about 8.00pm
and the victim breathed his last on 14.12.2015 @ 10.30pm, after a period of
78days. The occurrence had taken place during night hours and at that time
of admission, no external injuries were found on the deceased, even as per the
prosecution few minutes prior to the alleged occurrence there had been wordy
quarrel and altercation between the victim/Senthil and his brother/PW2, with
regard to returning of a weighing machine.
https://www.mhc.tn.gov.in/judis
8. As per the evidence of PW1/wife of the deceased, PW2 had came
to their house and had requested the victim/Senthil to hand over the weighing
machine to sell and settle his liabilities. Since, the victim had refused to
return the weighing machine, there had been a quarrel between them and
since, they had raised their voice during quarrel, the accused who were stated
to be neighbours are alleged to have intervened and during intervention, one
of the accused is stated to have slapped PW2 and the victim had informed
them, it was the fight between the brothers and they need not interfere and
they should not have assaulted his brother and there had been a quarrel and
altercation and the incident is alleged to have happened during that period. It
is the specific case of PW1 that she had left the house to a nearby shop, when
her husband and PW2 were fighting and when she came back after
10minutes, the fight was continuing between them. Therefore, the evidence
of PW1 in respect of having witnessed the intervention of the accused and
having assaulted the victim/deceased is doubtful and further, even assuming
that the accused had intervened the fight between the brothers (deceased and
PW2) and caused injuries, no intention or knowledge can be attributed to
https://www.mhc.tn.gov.in/judis
them for having caused death of the victim/deceased.
9. The learned counsel for the appellants would further submit that the
victim/deceased is stated to have sustained injuries on 27.09.2015 @ 8.30pm
and he was referred to a nearby hospital and after initial treatment brought
back home and thereafter on the next day on 28.09.2015 referred to a private
hospital and from the private hospital he was referred to Coimbatore
Government Medical College Hospital, where a surgery was performed on
the victim on 28.09.2015, initially, the case was registered for the offence
under Section 294(b), 324 and 506(ii) IPC. The victim deceased was treated
as inpatient and since the surgery performed on 28.09.2015 was not
successful and there was complication another surgery was performed on
20.10.2015 and even thereafter, the victim continued to be in treatment for
several days and he died on 14.12.2015 due to the complications in surgery.
Neither the scan report taken at hospital for first time nor the case sheets and
the surgery notes regarding the surgery performed on the victim/deceased
were marked by the prosecution. The prosecution has failed to prove by
letting in cogent evidence that the injuries alleged to have been sustained by
https://www.mhc.tn.gov.in/judis
the victim was sufficient in the ordinary course of nature to cause death of the
victim. Though, three appellants were stated to have involved in the
occurrence, no specific evidence has been let in by the prosecution to prove
which accused caused which injury. Though there were several houses
available in the vicinity other than PW1 and PW2 no other independent
witnesses had been examined to speak about the incident. Further, PW9/Sub
Inspector of Police is stated to have examined the victim while he was under
treatment and no steps have been taken to mark his statement or record the
dying declaration of the victim, thereby creating suspicion in the prosecution
case.
10. The learned counsel would further submit that even as per the
prosecution no weapon has been used and the incident is alleged to have
happened during the sudden quarrel, when the accused neither had the
intention nor the knowledge that their act would result in the death of the
victim deceased and nothing has been elicited by the prosecution that such
injuries were sufficient in ordinary course of nature to cause death. The
appellants could utmost be held liable for the offence under Section 323 IPC
https://www.mhc.tn.gov.in/judis
and not otherwise, he would reiterate that the incident had happened on
27.09.2015 and the death was on 15.12.2015, due to the complications in
surgery.
11. Per contra, Mr.Sugendran, learned Government Advocate
(Crl.side) would submit that the appellants are neighbours of the deceased.
On 27.09.2015 at 8.00pm there was a fight between PW2/brother of the
victim and victim/Senthil. Since, there was commotion and noise the accused
who are neighbours had intervened and the first accused had warned them not
to raise voice and had slapped PW2, the victim/deceased had questioned the
accused stating that it was a dispute between brothers and they may not
intervene in it. During fight, the first appellant had punched on the stomach
of the victim/deceased and the other accused have assaulted the
victim/deceased with hands and they have also assaulted PW2 with hands.
When the victim/deceased had fallen down they have also kicked on his
stomach, due to which the victim had sustained internal injuries. He was
taken to a private hospital nearby for treatment and thereafter he was referred
back to home. On the next day he was taken to a private hospital were scan
https://www.mhc.tn.gov.in/judis
was taken and since, the victim/deceased did not have money to perform
surgery in the private hospital, they have taken him to the Coimbatore
Government Medical College Hospital were a surgery was performed on him
and since there was complications in the surgery a second surgery was
performed on him on 20.10.2015. Thereafter, the victim continued to be as
an inpatient in the hospital and later he died on 14.12.2015, due to the
complication in the surgery.
12. The learned Government Advocate would further submit that the
victim/deceased had sustained internal injuries due to the assault by the
accused and the Doctor who had conducted postmortem had deposed that the
injury was sufficient in the ordinary course of nature to cause death.
However, he would submit that scan report and the surgery notes and case
sheets of the victim/deceased regarding the surgery were not marked by the
prosecution.
13. Heard the rival submissions made on both sides and perused the
materials available on record.
https://www.mhc.tn.gov.in/judis
14. Now what is to be seen is whether the prosecution has proved the
charges against the accused/appellant beyond all reasonable doubt. Whether
the trial Court is right in finding the accused guilty for the offence under
Section 304(ii) IPC.
15. While analysing the evidence on record, PW1 who is the wife of
the victim/deceased, had deposed that on 27.09.2015 @ 8.00pm her husband
and her brother in law (PW2) were discussing and PW2 was asking her
husband to give him the weighing machine at that time, the first
appellant/Murugesan had come to their house and questioning him why he
was raising noise and assaulted (PW2) and at that time her husband had
questioned him why he had assaulted his brother and the other two accused
had assaulted her husband in the stomach and stamped him and thereafter the
victim was taken to Jacob Hospital and they administered an injection to him
and sent them. However, her husband complained of stomach pain and on
the next day morning she had taken her husband to another hospital and taken
scan of her husband and the Doctors there had informed that he was serious
and referred him to Coimbatore Government Medical College Hospital. The
https://www.mhc.tn.gov.in/judis
police had obtained her statement at Coimbatore Government Medical
College Hospital and registered the case. On 14.12.2015, her husband
passed away without responding to treatment. In her cross examination, she
had stated that she is not aware of the time of quarrel between her husband
and her brother in law. She had further deposed that she had left to a nearby
shop and the fight continued between her husband and brother in law for
10minutes, till she returned back from the shop. She had stated that at the
time of occurrence all the villagers had gathered there, however, she had
denied the suggestions that her husband sustained injury during the fight
between her husband and her brother in law/PW2.
16. PW2 is the brother of the victim/deceased he had deposed that on
27.09.2015 at 8.00pm he had gone to his brother's house to show his two
wheeler, at that time, he had asked his brother to give the weighing machine
to him to sell and settle his liabilities, his brother had refused and they were
discussing and at that time, the first accused had intervened and questioned
him as to why he was raising his voice and that he had told him that it was his
brother's house and he was discussing with his brother. The first accused had
https://www.mhc.tn.gov.in/judis
slapped him and his brother had intervened and told him that it was a fight
between brothers and he raised his hands against A1 and attempted to assault
A1, at that time, A1 had pushed his brother and punched on his stomach and
his brother had fallen down. A2 and A3 nearby had rushed to the place and
assaulted him and his brother and he intervened and the accused also pushed
him. Hearing the noise, the neighbours had gathered there and the accused
have gone away. Thereafter, he had taken his brother to Jacob hospital and
they had administered an injection and sent his brother back. During night
his brother had stomach pain and it was informed to him by his sister in
law/PW1. On the next day, he had asked his sister in law to take him to
Saran hospital and that they have taken X-ray and informed that his brother
had sustained injury in his stomach and they have to perform a surgery and it
will incur expenses. Since, he did not have money he had taken his brother to
the Coimbatore Government Medical College Hospital. The police enquired
him in the hospital and later on 14.12.2015 his brother passed away. He has
denied the suggestion during the cross examination, that his brother sustained
injuries, during fight between him and his brother.
https://www.mhc.tn.gov.in/judis
17. PW3 is the relative of the deceased and he is hearsay witness, he
had spoken about having come to know about the incident and about
admission of the victim in the hospital on 27.09.2015 and his death on
14.12.2015.
18. PW4 is the witness for arrest and confession of the accused. He
had deposed on 17.12.2015, the police enquired the accused and they have
confessed to the offence and that the confession was typed in a computer and
that he and one Shanmugavel had signed as witnesses.
19. PW5 is the Doctor at Saran hospital, he had deposed that on
28.09.2015, the victim was brought to his hospital and that he was informed
that the neighbours of the victim had assaulted him and that he was having
stomach pain and vomiting sensation, on examination he found his stomach
was bloated and that he was having pain and he had not excreted on that day.
He was having BP 110/70 and that his heart beat was high. He had
immediately scanned the victim and found blood clot near stomach and the
spleen. He had further referred to take CT Scan and after taking CT Scan he
https://www.mhc.tn.gov.in/judis
gave an opinion that victim could have sustained injury in the
Nemoperitonium and there could be tear of intestine. He had suggested for
surgery, whereas, the attendants wanted him to be taken to Government
Hospital and thereafter one Tamilselvan working in the hospital had given
medical certificate/Ex.P3 and he does not know about the whereabouts of
Dr.Tamilselvan. In his cross examination, he deposed that there is a
possibility of sustaining such injury while falling down when running fast or
driving a vehicle.
20. PW6 is the witnesses for the observation mahazar/Ex.P4, however,
he had deposed that he was not aware of the contents of Ex.P4.
21. PW7 is the Grade II constable, he had deposed that on 15.12.2015,
he had altered the case in Cr.No.981 of 2015 registered under Section 294(b),
324 & 506(ii) IPC to one under section 302 IPC and handed over the
alteration report/EX.P5 through Express FIR to the Judicial Magistrate.
22. PW8 is the Head Constable in the respondent police station, he had
https://www.mhc.tn.gov.in/judis
deposed that on 28.09.2015, while he was on duty he received intimation
from Saran hospital and gone to Saran hospital, there he was informed that
the victim had been referred to Coimbatore Government Medical College
Hospital and the he had gone to the hospital on the same day at 21.00hrs. At
that time, the victim was unable to speak and thereby he recorded a statement
from his wife/PW1 and came back to the police station at 23.00hrs and
registered a case in Cr.No.981 of 2015 for the offence under Section 294(b),
334 and 506(ii) IPC and forwarded the original to the Judicial Magistrate and
copies to the higher officials and handed over one copy to the Sub Inspector
for investigation. Thereafter, after three months on 15.12.2015 at 1.00am, he
received information that the victim succumbed to the injuries on 14.12.2015
at 22.45hrs and he went to the hospital at 3.00am and received the request
given by the Inspector of police for postmortem and again went to the
hospital and received the corpse at 10.15am and handed it over to the
mortuary and after completion of postmortem handed over the body to the
relatives of the deceased. The printed FIR is Ex.P6. In his cross
examination, he had deposed that he had received intimation from the hospital
only on 28.09.2015 and that PW1 had not stated about her presence during
https://www.mhc.tn.gov.in/judis
the occurrence in her first statement and that he had not obtained signature of
PW1 in the FIR.
23. PW9 is the Sub Inspector of the respondent police station, he had
deposed that he had received the FIR from PW8 and taken up the case for
investigation on 29.09.2015 and went to the place of occurrence at 6.00am
and prepared the observation mahazar and rough sketch/Ex.P7 in the
presence of PW6 and other witnesses and thereafter he had examined PW2
and other witnesses, later he had gone to the Coimbatore Government
Medical College Hospital and since the victim was unable to speak he had
recorded the statement from PW1 and on the same day at 12.00hrs arrested
the accused in the presence of the witnesses and they were remanded to
judicial custody. In his cross examination, he had stated that he had
examined the victim, while he was alive and that he has not stated anything
about the presence of his wife/PW1 at the time of occurrence.
24. PW10/Dr.Suresh Jacob, Doctor at Jacob hospital had deposed that
on 27.09.2015, the victim/Senthil was brought to his hospital at 9.30pm and
https://www.mhc.tn.gov.in/judis
he had been informed that he sustained injuries in the stomach during a fight.
On examination, he had informed that the victim was having pain in the
stomach and finding that he could have sustained injuries inside the stomach
had advised him to nearby Saran hospital. He had further deposed that the
police had not enquired him.
25. PW11 is a Senior Assistant Professor in the Surgery Department of
Coimbatore Government Medical College Hospital, he had deposed that on
28.09.2015, the victim was referred to hospital for further treatment and the
Doctors team in the emergency surgery department after examining him
finding that he had sustained internal injuries in the stomach had performed
emergency surgery in the stomach. As per the surgery notes, the victim had
sustained an injury in the smaller intestine and there was a hole and the blood
vessels were found to be damaged and bleeding and they had removed the
decayed portion of the smaller intestine and rejoined it. After surgery he was
given treatment and while he was under treatment, there was leak in the
joined portions and thereby on 20.10.2015, they had performed a second
surgery. After second surgery, he was given continuous treatment, however
https://www.mhc.tn.gov.in/judis
his condition got deteriorated and that the victim had passed away on
14.12.2015 while he was under his treatment. He had issued certificate
regarding his death and later body was taken for postmortem. In his cross
examination, he has deposed that there is possibility of sustaining such injury
while hitting a stone by fall from a vehicle and there is a chance for death
also.
26. PW12 is the Sub Inspector of Police in the respondent police
station, he had deposed that on 15.12.2015 at 1.00am he received intimation
that the victim passed away and he had deputed PW8 to get the intimation
and since PW9/I.O was on leave he had gone to the scene of occurrence and
examined the witnesses and since they reiterated the same version he had
recorded their statement and thereafter he had altered the section to one under
Section 302(ii) IPC and forwarded the altered FIR to the Judicial Magistrate
and he had handed over the file to the Inspector of Police along with
alteration report/Ex.P5.
27. PW13 is the Assistant Professor in the Department of Forensic
https://www.mhc.tn.gov.in/judis
Medicine had performed autopsy on the body of the deceased on 15.12.2015
at 3.15pm and he had made the following notings :-
Appearances found at post mortem : emaciated body
of a male aged about 33years. Finger and toenails were
pale. Bed sore noted over both gluteal region, back of both
side chest and back of both elbow.
The following ante mortem injuries seen over the body:
1)Vertically placed surgical scar 13x2cm noted over upper
abdomen, 4cm below the xiphi sternum.
on dissection of Thorax and Abdomen :- Both pleural
cavities each contain about 500ml of straw colour fluid.
Peritoneal cavity contains about 500ml of fluid blood.
Sutured would 2x0.5cm noted over jejunum, 60cm distal
from duodeno jejunal flexure. Sutured would 10x0.5cm
noted over mesentery. Dens adhesions noted over small
bowels loops and sutured would 3x0.5cm noted over small
bowels. Both lungs covered with pus materials and cut
section shows frothy secretions.
OTHER FINDINGS :
- Hyoid bone : Intact
- Heart - all chambers contains about few cc of fluid blood
- Stomach contains about 50ml of brown colour fluid with
unpleasant smell, mucosa pale.
- Small intestine contains about 10ml of bile stained fluid,
with unpleasant smell, mucosa pale.
- Liver, Spleen and Kidneys - cut section pale.
- Brain : Edematous
- Urinary bladder - empty.
- Viscera preserved and sent for chemical analaysis.
OPINION : The deceased would appear to have died of
https://www.mhc.tn.gov.in/judis
BLUNT INJURY ABDOMEN and his complications.
Thereafter, he had forwarded the viscera to chemical analysis and received
the report and he had given postmortem certificate/Ex.P8. He had given an
opinion that the deceased would have died due to blunt injury abdomen and
its complications.
28. PW14/I.O. he had deposed that on 15.12.2015, while he was
working as the Inspector of Police in the respondent police station PW12 had
handed over the CD file after conducting initial investigation and on
15.12.2015 @ 7.00am he had conducted inquest in the presence of the
witnesses and on the same day examined PW1, Govindammal, Nagavalli,
Saravana Kumar, Balasubramani and PW2 and thereafter, prepared
postmortem report/Ex.P9 and forwarded it to the Court and on the same day
went to the scene of occurrence and examined one Pradeep, Murali, Moorthi
and another Murali. On 17.12.2015 at 13.00hrs arrested the accused and they
have confessed to the crime, the first accused had given a voluntary
confession statement and it was recorded in the presence of PW4 and one
Shanmugavel and sent the accused to judicial custody. On 21.09.2016,
https://www.mhc.tn.gov.in/judis
recorded the statement of Doctor/PW13 and later examined PW11 and PW5
and PW10 (Doctors). Later examined the constables and the Sub Inspector
of Police, after obtaining consent of the Deputy Zonal Director filed the
charge sheet against the accused on 12.02.2016 for the offence under Section
302 IPC. In his cross examination he had deposed that PW2 did not informed
him that he was present in the hospital till the death of his brother.
29. This Court bestowed its careful and anxious consideration to the
evidence and materials available on record. Admittedly, in this case, the
incident had occurred on 27.09.2015 at 8.00pm and the complaint was made
to the respondent on the next day on 28.09.2015 at 23.00hrs. The victim has
succumbed to the injuries on 14.12.205 at 10.30pm (i.e., after 78 days).
30. The case of the prosecution as per Ex.P6/complaint given by PW1
is that on 27.09.2015 her brother in law/PW2 had came to the house and
asked her husband to give the weighing machine and her husband had refused
https://www.mhc.tn.gov.in/judis
to give it to him, due to which there was a fight between her husband and her
brother in law/PW2. At that time, A1 who was living in the opposite house
had shouted at them saying why are they fighting and creating noise and
slapped her brother in law and that her husband told him that it was fight
between the brothers and why he had slapped his brother and there was a
fight and at that time, two other neighbours A2 and A3 have rushed to the
place and they have punched his stomach and kicked on his stomach and her
husband had sat down holding his stomach and later she had taken him to
Jacob hospital and after initial treatment had come back to home and on the
next day her husband was having stomach pain and she had taken him to
Saran hospital and the Doctor at Saran hospital after taking a Scan had
informed her that there was a bleeding inside the stomach and referred him to
Coimbatore Government Medical College Hospital.
31. Thereafter, as per PW11 a surgery had been performed on
28.09.2015 by a team of Doctors in the Emergency unit of Coimbatore
Government Medical College Hospital, since there was complication in the
initial surgery a subsequent surgery had been performed on 20.10.2015 and
https://www.mhc.tn.gov.in/judis
ultimately the victim had passed away on 14.12.2015 due to complications in
surgery. Admittedly, in this case, neither the initial scan report nor the case
sheets, surgery notes of the victim had been marked by the prosecution and
no evidence had been let in by the prosecution to explain what was the nature
of the surgery performed and the nature of the treatment given to the victim.
Though, PW9/Sub inspector of Police is stated to have recorded a statement
from the victim when he was in the hospital during treatment, the statement
has not been marked, thereby creating a suspicion in the case. Further, PW1
had stated that all the villagers have assembled at the scene of occurrence,
whereas the prosecution has not examined any independent witnesses to
speak about the incident. Further, even as per the postmortem report/Ex.P8
excepting a surgical scar 13x2cm noted over the upper abdomen, 4cm below
xiphi sternum, no other injuries have been found. As per the evidence of
PW1 and PW2, the incident had occurred during a quarrel and the witnesses
have not spoken as if the accused had intention or knowledge that their act
would cause death of the victim. However, in this case, the victim had died
78days after the occurrence. The prosecution has failed to rule out that the
victim did not died on account of complications in the surgery and the
https://www.mhc.tn.gov.in/judis
injuries inflicted by the accused was sufficient in the ordinary course of
nature to cause death. The prosecution has also failed to establish which
accused caused which injury. In this case, the charges have been framed for
the offence under Section 302 IPC and not under Section 302 r/w.34 IPC.
32. In this case, the prosecution has failed to prove its case for the
offence under Section 304 (ii) IPC beyond all reasonable doubts. The trial
Court had not considered the lacunas on the part of the prosecution side in
proper perspective. However, in this case, there is some evidence that the
accused have assaulted the victim deceased. This Court is of the opinion that
at the most, the accused could be convicted for the offence under Section 323
IPC.
33. In the result, the criminal appeal stands partly allowed by setting
aside the judgment dated 30.01.2019 made in SC.No.156 of 2016 on the file
of the II Additional District and Sessions Judge, Tiruppur and the conviction
of the appellants/accused for the offence punishable under Section 304(ii)
IPC is modified to offence punishable under Section 323 IPC. Consequently,
https://www.mhc.tn.gov.in/judis
the sentence of imprisonment is modified to undergo rigorous imprisonment
for 325 day. It is stated that the accused are now in prison and the period of
sentence already undergone by them shall be set off under Section 428 Cr.PC.
03.12.2021
Index: Yes/No.
Internet: Yes/No.
tsh
To
1. The IIAdditional District cum Sessions Judge,
Tiruppur.
2.The Inspector of Police,
Anuparpalayam Police Station,
Tiruppur District.
3.The Public Prosecutor,
High Court of Madras.
https://www.mhc.tn.gov.in/judis
A.D.JAGADISH CHANDIRA, J.
tsh
Crl.A.No.293 of 2019
03.12.2021
https://www.mhc.tn.gov.in/judis
