Madras High Court

Vellairaja @ Rajendran vs State By The Inspector Of Police on 30 November, 2021

                                                                            Crl.A.No.151 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                    DATED : 30.11.2021
                                                         CORAM

                        THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                                    Crl.A.No.151 of 2019

                     Vellairaja @ Rajendran                                          ... appellant

                                                            Vs.

                     State by The Inspector of Police,

                     South Police Station, Tiruppur District.

                     (Cr.No.456 of 2015)                                          .... Respondent

                                   PRAYER : Criminal Appeal is filed under Sections 374(2) of
                     Criminal Procedure Code to set aside the judgment and conviction passed
                     in S.C.No.12 of 2016 dated 04.01.2019 on the file of the                    I
                     Additional District and Sessions Judge, Tiruppur.

                                   For Appellant       : Mr.K.V.Sridharan

                                   For respondent      : Mr.S.Sugendran, GA (Crl. Side)



                                                      JUDGMENT

The first accused in S.C.No.12 of 2016 has filed the present

Criminal Appeal challenging the judgment of conviction and sentence

dated 04.01.2019 rendered by the learned I Additional Sessions Court,

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Tiruppur, finding him guilty for the offence punishable under Section

304(i) IPC and convicting him thereon and sentencing him to undergo

rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/- in

default to undergo simple imprisonment for further period of three

months.

2. The factual matrix in brief, as revealed from the evidence of

the prosecution witnesses and the materials available on record, is as

under:-

(i) PW1 Kamalavathi is the wife of the Deceased Paalpandi.

A1, A2 and deceased Paalpandi were working as Ironing Masters in a

Banian Factory namely Sakthi Tex at Tirupur under the same Contractor.

(ii) On 17.05.2015, the deceased went to Pudur Junction near

Saastha Bakery to receive his salary from A1 and A2, since he was

informed by the Contractor that it was sent through A1 and A2. On

return to his house at 6.00 p.m., the deceased had informed PW1 and

PW2 that he was assaulted by A1 and A2 while they had an altercation at

that point of time and thereupon, PW1 and PW2 along with the deceased

went to Oorkounder Compound to question as to why A1 and A2

assaulted him, but, without replying, A1 and A2 had assaulted PW1 and

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on being questioned by the deceased, they had once again beat the

deceased on his face and chest repeatedly.

(iii) By that time, PW3, Rangaraj, a neighbour and a lady

running a grocery shop at the locality pacified them. However, while

returning, just after they went a little distance, the deceased fainted.

PW1 and PW2 alongwith PW8 Karthickraja, cousin of PW2, who arrived

on call from P.Ws.1 and 2, took the deceased to the hospital at Tirupur.

PW5, Dr.Jatki Neslin, who examined the deceased, had issued Ex.P3

Accident Register. According to Dr. PW5, the injured died on the way to

Hospital and thereby, he instructed for keeping the body in mortuary.

(iv) PW1 and PW8 Karthik Raja went to Tirupur South Police

Station and lodged a complaint, Ex.P1.

(v) On receipt of the complaint, Ex.P1 at 9.30 pm on

17.5.2015, PW10, Sub Inspector of Police, Tirupur South Police Station

had registered a case in Cr.No.456 of 2015 under Section 302 IPC and

sent the FIR, Ex.P9 along with the complaint, Ex.P1 to Judicial

Magistrate II, Tiruppur which reached the Court at 6.45 a.m. on

18.05.2015. Subsequently, PW10 sent a copy of the same to PW12,

Inspector of Police, South Police Station and other copies to the higher

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officials.

(vi) PW12, Inspector of Police proceeded to the scene of

occurrence and prepared Rough Sketch Ex.P11 and Observation Mahazar

Ex.P2 attested by PW3 and another. At 7.00 a.m. on 18.05.2015, PW12

had conducted inquest over the dead body of Paalpandi in the presence of

PW1, PW2, PW8 and others and recorded their statements. . Ex.P12 is

the Inquest Report. Thereafter, PW12 had sent the body for post mortem.

(vii) PW6, Dr.Kirupakaran, who conducted postmortem, found

the following external injuries over the body:-

(1) Abrasion over left shoulder

(2) Contusion over left eye ball

(3) Contusion 5x2cm over left side chest.

The Doctor had not reported any internal injuries. After sending the

Viscera and the Hyoid bone to the Scientific expert for examination, the

Doctor, PW6 had issued the post mortem certificate, Ex.P4 opining that

no poison was detected; hyoid bone was found in tact and the deceased

would appear to have died of cardiogenic shock due to Acute Myocardial

Infarction. Ex.P5 is the Pathology Report. Ex.P6 is the opinion issued

by Dr.S.Peranathan, the Forensic Expert (not examined) finding that the

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hyoid Bone was found in tact and no anti mortem injury was sustained by

Hyoid Bone. Ex.P7 is the final opinion given by PW6. In Ex.P7, the

Doctor PW6 had given opinion that the deceased would appear to have

died of Cardiogenic Shock due to Acute Myocardial Infarction at abou 14

to 20 hours prior to autopsy. PW11, Scientific Officer at Regional

Forensic Science Laboratory, Coimbatore had issued his Report Ex.P10

stating that on examination of the stomach and its contents, intestine and

its contents, liver, kidney and preservative, no poison was detected.

(viii) At 2.00 p.m. on 18.5.2015, PW12, on receipt of

information about the accused, arrested A1 and A2 in the presence of

PW9 and another.

(ix) Subsequently, on transfer of PW12, his successor, PW13

Rajasekhar, Inspector of Police took up further investigation and after

examination of the Doctor, PW6, he filed the final report against Accused

1 and 2 under Section 302 of IPC.

(x) The case was taken up on file in PRC.No.66 of 2015 on the

file of the Judicial Magistrate No.II, Tiruppur and on appearance of A1

and A2 before the Magistrate, they were furnished with copies of

documents under Section 207 Cr.PC and thereafter, the Court, finding

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that the case was exclusively triable by the Court of Sessions, had

committed the case under Section 209 Cr.PC to the Principal Sessions

Court, Tiruppur. The case was taken up by the learned Principal

Sessions Judge, Tiruppur in S.C.No.12 of 2016 and it was made over to

the Trial Court in accordance with law.

3. On appearance of A1 and A2 and after hearing the

submissions of the accused and arguments of the counsel on both sides,

the Trial Court framed charges against A1 and A2 for the offence under

Section 302 IPC and when the charges were read over to the accused,

they denied the charges and pleaded not guilty and sought to be tried.

During trial, A2 in this case had committed suicide and thereby the

charges against A2 got abated.

4. In order to prove the charges against the accused, the

prosecution had examined PW1 to PW13 and marked Exs.P1 to PW12

and no Material Object was marked. Though the appellant/accused had

denied the charges when he was questioned under Section 313 Cr.P.C.,.

he had not chosen to let in any evidence on his side.

5. The Trial Court, after perusing the materials and after

hearing the counsel found the accused guilty for the offence under Section

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304(i) IPC and convicted and sentenced him as stated above, against

which the present Appeal has been filed.

6. Assailing the judgment of conviction and sentence,

Mr.K.V.Sridharan, learned counsel appearing for the appellant, would

make the following submissions:-

(i) Even accepting the incident to be true, the appellant cannot

be found guilty for the offence under Section 304(i) IPC.

(ii) The accused had neither the intention to cause death nor the

knowledge that their act would result in the death of the victim. The

occurrence took place allegedly during a quarrel and free fight. The

deceased along with his wife/PW1 and his son/PW2 are stated to have

gone to the house of the appellant to question them with regard to an

earlier quarrel. At that time, A2 (since deceased) is stated to have told

that the deceased had come to the house and he should not be left and he

should be finished and during such time, there was free fight.

(iii) The opinion of PW6/Doctor, who conducted post mortem

is that the death was due to Cardiogenie Shock due to Acute Myocardial

Infraction and there is no specific evidence the Doctor that the injuries

found on the body of the deceased are sufficient, in the ordinary course of

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nature, to cause death, especially, when the injuries were found to be of

not grievous in nature and no corresponding internal injuries were found.

In the absence of such evidence that the injuries found on the body of the

deceased are sufficient, in the ordinary course of nature, to cause death,

the accused cannot be convicted for the offence under Section 304(i) or

304(ii) IPC.

(iv) The Medical Officer, in his cross examination, has admitted

that the three external injuries, found on the body of the deceased, would

have been caused by multiple falling also. The Medical Officer has also

given opinion that consumption of liquor would also be a cause for

Cardiogenie shock. Therefore, the prosecution has failed in this case to

establish by evidence of medical experts and rule out the probability, as

admitted by the Doctor, PW6 in his cross examination that consumption

of liquor would also be a cause of Cardiogenic Shock. The Chemical

Examiner was requested to given opinion only with regard to Hyoid bone

and presence of poison in the stomach and intestinal contents and no test

for alcohol was conducted.

(v) The evidence of the prosecution is that the deceased was

attacked with hands and only simple injuries were caused during the

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occurrence. When there is no evidence that the injuries are sufficient in

the ordinary course of nature to cause death, the case of the prosecution

will fall only under Section 323 IPC. Therefore, the medical evidence

does not support the case of the prosecution.

(vi) Though two persons were charged for the offences, there is

absolutely no specific evidence with regard to the injuries stated to have

been caused by them and there is no charge against them for having

shared a common intention and even as per the evidence of PW1, there

was a free fight. The evidence of PW1 and PW2 coupled with the

medical evidence would clearly show that the deceased died due to Acute

Myocardial Infraction and not on account of the beatings by the

appellant.

7. In support of his contention, the learned counsel for the

appellant would rely on the judgment of a Division Bench of this Court in

Criminal Appeal No.1099 of 2006 dated 30.06.2008 in the case of

Panchatcharam v. State rep by Inspector of Police, Arni Taluk Police

Station, Arni, Tiruvannamalai District.

8. Mr.S.Sugendran, learned Government Advocate (Criminal

Side) appearing for the respondent would submit that the accused and the

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deceased were co-employees in Tiruppur Sakthi Tex Company and that

on 17.05.2015 at about 5.30 pm, the accused had demanded a sum of

Rs.250/- from the wages of the deceased and there was a quarrel between

them, due to which, the accused had assaulted the deceased and it was

informed by the deceased to his wife/PW1 and son/PW2 and thereafter

PW1 and PW2 alongwith the deceased had gone to the house of A2 and

at that time A2 had told A1 that they should not leave the deceased and

thereafter they had assaulted the deceased with hands resulting in the

deceased sustaining injuries and later, had collapsed. He would fairly

concede that no weapons were used in the occurrence and that no test

was done by the prosecution with regard to presence of alcohol in the

viscera and that the Doctor, who conducted the post mortem, had opined

that the death was due to Acute Myocardial Infarction.

9. Heard the learned counsel appearing for the parties and

perused the materials available on record.

10. While analysing the evidence of witnesses, PW1 is the wife

of the deceased. She had deposed that her husband/deceased Palpandi

was working as Ironing master in a Banian company and she has got two

sons. On 17.05.2015, the deceased went to meet the accused near

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Saastha bakery situated at Pudhur Junction for asking his salary. After

return, at about 6.00 pm, he had informed PW1 that there was an

altercation between them and that the accused had assaulted him. When

PW1 and her son PW2 went alongwith the deceased to question the

accused, once again, a quarrel had erupted and the accused were said to

have attacked PW1 and the deceased on his face, neck and chest

repeatedly. On pacification by the neighbours, the deceased was

returning to his house with P.Ws.1 and 2, but, suddenly, he got fainted

and fell down and he was taken to hospital by P.Ws.1, 2 and 8, however,

on examination, the Doctor had informed that her husband died on the

way to hospital.

11. PW1 had deposed that A1/appellant and yet another person

(who figured as A2) assaulted her husband and the other person, who

attacked her husband was no more by then. She had deposed that she

had given a written complaint and on the information given by her, PW2

wrote the complaint and she had signed and gave it to the

respondent/police. The said complaint was marked as Ex.P1. The police

had enquired her and thereafter the body of her husband was sent to the

mortuary and post mortem was conducted on her identification.

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12. PW2/Selvakumar is the son of deceased Palpandi. He had

corroborated the evidence of his mother PW1. He had deposed that his

father was attacked by the accused and on intervention of PW3,

Thangaraj and a grocery shop keeper in the neighbourhood, the scuffle

had come to an end, however, on the way to their house, his father fainted

complaining chest pain and they sprinkled water on him and informed to

his brother/Karthickraja, PW8, who came to the spot and took his father

to the Government Hospital, Tiruppur, where the Doctor had declared

that his father was brought dead and then, he gave a complaint at the

police station.

13. PW3/Rangaraj is a resident in Oorgounder Nagar at

Perichipalayam. He had deposed that on 17.05.2015 at 7.00 pm, while he

was in his house, 2 to 3 persons were fighting inside the neighbourhood

compound and also on the street and he had seen the accused attacking

the deceased and thereafter, they had dispersed. He had further deposed

that the police had come at 10.00 pm and visited the scene of occurrence

and the surrounding area and prepared rough sketch. He stood as a

witnesses to the observation mahazar marked as Ex.P2 and one

Murugeswari stood as second witness. He had also identified the accused

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produced in court as that of the person who involved in the fight, who

resides in the house opposite to his house.

14. PW4/Ravichandran had deposed that on 17.05.2015 at

5.30 pm, while he was having tea with his friend in the Bakery at

Perichipalayam, he had seen three persons fighting and later their fight

become intense and thereby, he and his friend had disengaged the

persons fighting and later they had left the place. He had also identified

the accused as one of the persons who took part in the fight and he had

later come to know about the death of a person by name Palpandi.

15. PW5/Dr.Jatkin Neslin had deposed that on 17.05.2015,

while he was on duty as Assistant Medical Officer in the Tirupur

Government Hospital, a person by name Palapandi aged about 45 years

was brought by his wife/Kamalavathi to the hospital at about 8.40 pm

and on examination, he found that the said person was dead and he

advised his staff to keep the corpse in the mortuary for conducting post

mortem. The Accident Register issued by him is marked as Ex.P3.

16. PW6/Dr.Kirubakaran had deposed that on 18.05.2015,

while he was on duty, he had received an information from the Inspector

of Police, Tirupur South Police station requesting to conduct autopsy over

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the corpse of one Palpandi and based on the identification made by the

constable, he conducted autopsy. On examination, he found an old

wound scar below right knee and an old would scar over left ankle as

identification marks. He had further deposed that he had conducted

autopsy on 11.30 hours and found that the body was moderately

nourished symmetrical, eyes closed, no discharge from ears and nose,

mouth was closed and teeth were in tact. On further examination he

found the following injuries :-

" i)abrasion over left shoulder 2x1cm on its back side

ii)contusion over left eye ball 3x2cm and iii)contusion left

side chest 5x2cm.

The internal appearance : Ribs intact, Heart congested

Dark thick coloured clotted blood 30gm septum pale.

Lungs congested hyoid sent for analysis. Stomach

contain about 25ml of brown colour fluid. Liver

congested. Spleen congested kidneys congested intestine

distended with gas bladder empty. Skull bones intact.

Membrance intact, brain pale. He had further collected

the following organs:- 1)Stomach and its contents

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2)Intestine and its contents 3)Sample of liver 4)one

kidney 5)Preservative 6) Heart for Histo Pathological

examination 7)Hyoid in formalin and sent for chemical

analysis."

He had concluded the post mortem on the same day at 12.30 hrs.

Thereafter, he had received the chemical analysis report and had given

final report. In the final report, he had stated hat he had found fat in the

blood vessel to the heart (Atherometous) and he had further deposed that

there is a chance of fat in the blood vessels to the persons aged above 40

years. He had found the Hyoid bone in tact and he had given his opinion

that the deceased would appear to have died due to Cardiogenic Shock

due to Acute Myocardial Infarction at about 14-20 hours prior to the

autopsy. The post mortem certificate given by him was marked as Ex.P4.

The pathology report was marked as Ex.P5 and the opinion regarding

Hyoid bone was marked as Ex.P6 and the final report was marked as

Ex.P7.

17. However, in his cross examination, PW6 had deposed that

the external injuries which were found in the body of the deceased would

have been caused due to the multiple fall by the person and that there was

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a chance of person having heart attack during stress or depression and

that there was also a chance of heart attack in the event of a person

consuming alcohol.

18. PW7/Sathishkumar deposed that on 17.05.2015 at 5.30

pm, while he and his friend Ravichandran/PW4 gone to have a tea at

Tasty Bakery in Pudhur pirivu at Dharapuram road, he had seen the

deceased and two other persons fighting and thereafter he and his friend

Ravichandran intervened and withdrawn them from fighting. At that

time, the accused had told that they would finish the deceased on the next

day and on the next day, he heard about the death of Palpandi. The

accused present in the Court was was identified by PW7 as one of the

persons who fought with Palpandi.

19. PW8/Karthickraja nephew of the deceased had deposed

that on 17.05.2015 Sunday at 7.30 pm, he received a call from his

brother/PW2 and he was informed that his uncle was attacked and he

was found in an unconscious state. He further deposed that he went to

his uncle's house and saw his uncle lying unconscious near the staircase

and even on sprinkling water, his uncle did not regain consciousness and

he tried to get an ambulance and he came to know that it would take time

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and thereafter he had sent his uncle to the Tiruppur Government Hospital

by an auto and he had followed them in two wheeler and admitted

Palapandi in the hospital, however, after examination, the Doctor had

informed that his uncle had died on the way and thereafter, he had

informed to his relatives. He had further deposed that subsequently, he

enquired his aunty about the incident and lodged a complaint and kept

the corpse of his uncle in the mortuary. On the next day, the corpse was

identified as that of his uncle and post mortem was conducted. He had

further deposed that he went along with the police in their jeep to identify

the accused, then he identified the accused who were standing near the

new bus stand and the police had arrested them and later he went to

attend the funeral of his uncle.

20. PW9/Sugumar had deposed that on 18.05.2015 at 2.00 pm

he had gone to Tiruppur bus stand to pick up his friend who were coming

from Ooty and when he was waiting, he had seen the police rounding up

two persons and they were identified by one person. He had further

deposed that the police had arrested the two persons and they gave their

confession statement and he had signed as witness to the the confession

statement which was marked as Ex.P8.

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21. PW10/Sub Inspector of Police deposed that on 17.05.2015

while he was on duty PW1/Kamalavathi had come to the police station at

about 21.30 pm and she had given a complaint, based on which, he had

registered a case in Crime No.456 of 2015 under Section 302 IPC and

forwarded the express FIR/Ex.P9 alongwith the complaint to Judicial

Magistrate No.II, Tiruppur and one copy was sent to Inspector of

Police/PW12 for investigation and other copies were sent to the

concerned superior officers.

22. PW11/Parthasarathy, Scientific Officer at Regional

Forensic Science Laboratory, Coimbatore had deposed that based on the

requisition of the Medical Officer of Tiruppur Government Hospital, he

received the viscera of the deceased on 22.05.2015 and after analysis he

had given opinion that as per medical analysis, no toxic substance was

found.

23. PW12/Nelson had deposed that he had received the FIR in

Crime No.456 of 2015, took up the investigation and visited the scene of

occurrence and prepared the observation mahazar/Ex.P2 and rough

sketch/Ex.P11 in the presence of the witnesses and on the same day he

had examined the witnesses Kamalavathi, Selvakumar, Karthickraja,

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Rangaraj, Murugeswari and recorded their statements separately. On the

next day at 7.00 am, he conducted inquest over the corpse in front of the

panchayatars and prepared inquest report Ex.P12 and examined the

witnesses and thereafter, he had sent the corpse to the Tirupur

Government Hospital for autopsy in order to know the medical reason for

death. Thereafter, he had examined other witnesses and recorded their

statements separately. On the same day at about 2.00 pm, based on the

secret information, he arrested the accused and recorded their voluntary

confession statement and later they were brought to the police station and

sent to Judicial custody on the same day. He had received viscera after

post mortem and sent it for chemical analysis. On 13.08.2015, he was

transferred and thereby he handed over the case files to his

successor/PW13.

24. PW13/Rajasekaran, Inspector of Police had deposed that

during 2015, while he was working as Inspector of Police, Tiruppur

South Police Station, he took up the case registered in Crime

No.456/2015 under section 302 IPC for further investigation. He had

further deposed that on 29.09.2015, he had enquired the Doctor who

confirmed the death of Palpandi and recorded the statement of

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Dr.Kirubakaran/PW6 who conducted the post mortem and gave final

opinion and recorded his statement and filed the final report against the

accused under Section 302 IPC.

25. In this case, so far as the motive or intention sought to be

attributed on the part of the accused is concerned, it is seen the accused

and the deceased being co-employees in a Textile Company, the accused

is alleged to have demanded a sum of Rs.250/- from the deceased on

17.05.2015 at 5.30 pm near Saastra bakery and thereupon there was an

altercation between them and during such time, the accused were alleged

to have assaulted the deceased Palpandi and on receipt of such

information, PW1 and PW2 accompanied the deceased to the house of

the accused to question the assault, the accused were said to have

assaulted the deceased on his face and chest repeatedly and on

compromise made by the neighbours, they dispersed and on return to

their house, the deceased fell having fainted and on the way to hospital,

he died. The occurrence in which the accused were set to have assaulted

the deceased is concerned, it is a ramification of the earlier incident on

the protest made by P.Ws.1 and 2 at the premises of the accused.

26. Even as per the evidence of PW3/Rangaraj he had seen 2 or

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3 persons engaged in a fight and that they had later disbursed after

fighting. Even according to the prosecution witnesses, no weapon was

used in the quarrel and the accused were alleged to have assaulted the

deceased with their bare hands only. Further, the evidence of the

prosecution witnesses is not specific and clear as to who inflicted which

injury. After the incident, the deceased had been taken to the hospital

where he was declared as "brought dead".

27. On the next day of occurrence, post mortem was conducted

by PW6/Doctor, who had given his opinion, that the deceased would

appear to have died of Cardiogenic Shock due to Acute Myocardial

Infarction at about 14-20 hours prior to the autopsy.

28. It is the contention of the counsel for the appellant that

there is no intention for the accused to commit the offence and that the

deceased and his wife had gone to the house of the accused and the

incident had occurred, only during a rencounter. He further submits that

the evidence of the witnesses is not clear as to who inflicted the injury

and that PW3 has also spoken that there was a fight among three

persons.

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29. The learned counsel for the appellant has also submitted

that as per the opinion of the Doctor, who conducted post mortem, death

could have happened due to consumption of liquor. It is his further

contention that though the viscera and Hyoid bone were collected and

sent for medical analysis, no examination was done with regard to the

consumption of alcohol by the deceased to rule out the probability of

consumption of alcohol being root cause for the death. It is the further

contention of the learned counsel that the Doctor/PW6 has also not

deposed specifically that the injuries found on the deceased could be

sufficient, in the ordinary nature, to cause death and in the absence of

such evidence, the accused cannot be convicted either under Section

304(i) or under Section 304(ii) IPC.

30. At this juncture, it is apposite to refer to the relevant

paragraphs of the judgment of the Division Bench of this Court in

Crl.A.No.1099 of 2006 dated 30.06.2008 in the case of Panchatcharam

v. State rep by Inspector of Police, Arni Taluk Police Station, Arni,

Tiruvannamalai District:-

"15. It is also relevant to note that though

the appellant/accused is alleged to have fisted on the

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chest and kicked on the lower abdomen of the deceased, as seen from the post-mortem certificate, there is no external injury or corresponding internal injury found by the Doctor, namely fracture of ribs or rupture of abdominal vital parts, except blood clot in the congested urethra and bloated scrotum. It is opined by the Doctor that in the absence of any fatal injury, due to the blood clot in the urethra, which was due to the sudden blow to receptor area like penis and lower abdomen, the deceased appeared to have died of primary or neurogenic shock. It is pertinent to note that the Doctor has not stated that such internal injury sustained by the deceased is sufficient to cause death in the ordinary course of nature. Therefore, it is very clear from the medical evidence that the death of the deceased is not due to the direct result of any injury. Therefore, the evidence of the eye witnesses coupled with the medical evidence makes it crystal clear that the accused cannot be imputed with having any intention of causing the death of the deceased.

16. In an identical case, the Apex Court in Pirthi v. State of Haryana, 1994 Supp (1) SCC 498, held that as per the medical opinion, admittedly, the injury to the testicles was not the direct cause of death

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and as such the conviction is modified to one under Section 323 IPC. The accused in this case is said to have kicked the deceased on his stomach. Even assuming that the accused has kicked on the testicles, P.W.5, the Doctor has admittedly not found any external or internal injury. It is also to be pointed out that there is no external injury either on the chest or on the stomach and the Doctor has not stated that the deceased died due to the direct cause of any particular injury said to have been caused by the accused. At the risk of repetition, we are constrained to reiterate that the Doctor has not stated in his opinion that the injury sustained by the deceased is sufficient in the ordinary course of nature to cause the death, as there is no external or internal injury of fatal nature. Therefore, on the basis of the medical evidence, the fact remains that the deceased did not die due to any particular injury.

17. That apart, even according to the evidence of the eye witnesses, the second overt act of kicking of the deceased by the accused with his leg is only on the stomach or abdomen and not on the testicles. Therefore, it is clear that at the moment of commission of the crime, the accused could not have

https://www.mhc.tn.gov.in/judis Crl.A.No.151 of 2019

had any intention to kill the deceased or had the knowledge that his act of kicking in the lower abdomen may accidentally fall on the private parts, and in consequence of that, even accepting the medical opinion, the deceased, who was aged 65 years, would die due to neurogenic shock.

18. In view of the above facts and circumstances of the case, by no stretch of imagination, the accused could be imputed with intention or knowledge of causing the death of the deceased and at the worst, his act would fall only under Section 323 IPC. Therefore, we are left with the inevitable conclusion that the act of the accused would clearly fall under Section 323 IPC for the offence of voluntarily causing hurt. Accordingly, the conviction of the appellant/accused for the offence punishable under Section 302 IPC is modified to that of the offence punishable under Section 323 IPC and the appellant/accused is sentenced to undergo rigorous imprisonment for One Year. Further, we are of the considered view that the the accused/appellant shall pay compensation to the family members of the deceased."

https://www.mhc.tn.gov.in/judis Crl.A.No.151 of 2019

31. Having gone through the evidence on record and taking into

consideration the facts and circumstances of this case, this Court is of the

opinion that by no stretch of imagination, the accused could be imputed

with an intention or knowledge of causing death of the deceased and at

the worst, the act of the accused would attract an offence punishable

under Section 323 IPC.

32. Accordingly, the appeal stands partly allowed and the

conviction of the appellant/accused for the offence punishable under

Section 304(i) IPC is set aside and in the alternative, he is found guilty

for the offence punishable under Section 323 IPC. It is reported that the

accused was arrested on 18.05.2015 and thereafter, he was released on