JUDGMENT
M. Karpagavinayagam, J.
1. There are two appellants. The first appellant was convicted for the offence under Section 302 r/w 34 I.P.C. and the second appellant was convicted for the offence under Section 302 I.P.C.
2. The case of the prosecution could be stated thus:
(i) The deceased Selvaraj, the first accused – Pauldas and the second accused – Chelladurai are the brothers. P.W.1 Vasantha is the wife of the deceased. They are living in separate houses in the same area. Apart from the house in which the deceased lived, he had got another house, which he let out to P.W.2 Thangam.
(ii) On 1.8.1992 at about 9.30 p.m., the second accused Chelladurai came to the house of P.W.2 Thangam and asked her to vacate the premises. P.W.2 complained about the same to the deceased. The deceased, having got angry over this, came to the house of the second accused and questioned as to how he could demand P.W.2 to vacate the premises, which was owned by him.
(iii) Then, the first accused, who was sitting in the pial of his house, came near the deceased and caught hold of him. At that time, the second accused entered into the house, brought a Vettu Kathi and gave three cuts on the back of the deceased. P.Ws.1 and 2, who saw the occurrence, raised alarm. Both the accused ran away from the scene of occurrence.
(iv) Thereafter, P.W.1 Vasantha took the deceased to the Police station, where P.W.9, the Head Constable recorded the statement of the deceased, which was marked as Ex.P.1 and registered a case at 10.30 p.m. for the offence punishable under Sections 341 and 324 I.P.C. P.W.9 Head Constable also prepared Ex.P-8 First Information Report and sent the victim to the hospital.
(v) P.W.6 Dr.Prasannabai attached to the Kulachel Government Hospital, gave treatment to the deceased Selvaraj and issued Ex.P-5 wound certificate and referred him to the Kottar Government Hospital.
(vi) P.W.7 Dr.Sivarajan admitted the deceased in the Government Hospital, Nagercoil at about 11.p.m and treated him till 11.08.1992. Despite the treatment, at 2.50 p.m. on 11.8.1992, the deceased died. Therefore, P.W.5 Dr.Iyappan, sent Ex.P-4 death intimation of the victim to the Police.
(vii) P.W.12 Sub Inspector of Police, on receipt of the information about the registration of the case, came to the spot on 2.8.1992 and observed all the formalities. The second accused was arrested on 7.8.1992.
(viii) P.W.12 Sub-Inspector of Police, on receipt of the death intimation from the hospital, altered the case into one under Section 302 I.P.C. and prepared Ex.P-9 express report.
(ix) Then, P.W.14 Inspector of Police took up further investigation, went to the Government Hospital,Palayamkottai and conducted inquest in the presence of P.Ws.1 and 2 and others. The inquest report is Ex.P.14. Then, the body was sent for post-mortem.
(x) P.W.8 Dr.Paramasivam, Assistant Medical officer, Tirunelveli Medical College Hospital, conducted post-mortem on the body of the deceased and issued Ex.P-7 post-mortem Certificate, giving an opinion that the deceased would have died due to complications of the injuries sustained by him.
(xi) Thereafter, the material objects were sent for chemical analysis.
(xii) After completion of the investigation, P.W.14 Inspector of Police filed the charge sheet against both the accused, for the offences referred to above.
3. On the side of prosecution, P.Ws.1 to 14 were examined, Exs.P.1 to P.15 were filed and M.Os.1 to 3 were marked before the trial Court.
4. The plea of the accused, when they were examined under Section 313 Cr.P.C., is one of total denial.
5. The trial Court, after assessing the evidence available on record, found that the first accused is guilty of the offence under Section 302 r/w 34 I.P.C and the second accused is guilty of the offence under Section 302 I.P.C. and convicted accordingly and sentenced each of them to undergo life imprisonment and to pay a fine of Rs.5,000/- each. Hence, the appeal.
6. Mr.V.Gopinath, learned Senior Counsel appearing for the appellant/accused, would take us through the entire evidence and make the following submissions:
(i) Even as per Ex.P.1 compliant given by the deceased to P.W.9 Head Constable, P.W.2 Thangam went to the place of occurrence only after the occurrence was over. Therefore, P.W.2 Thangam could not have seen the occurrence.
(ii) The first accused is said to have caught hold of the deceased, while the second accused attacked him with ‘Vettu Kathi’. There is no consistency in the evidence of P.W.2 with reference to this.
(iii) Further, there is no motive for the first accused to facilitate the second accused to attack the deceased. If at all there is any motive, it can only be attributed to the second accused and not to the first accused, and as such, the first accused is liable to be acquitted of the charge.
(iv) The evidence of P.W.8 Dr.Paramasivam, who conducted post-mortem, would show that he is not able to give any specific opinion with reference to the cause of the death. As a matter of fact, he issued a certificate that the deceased died due to complications. Since P.W.8 Doctor would also admit that there were several diseases including enlarged liver and Tuberculosis, the offence committed by A.2 would not fall under Section 302 I.P.C. and at the most, A.2 could be convicted only for the offence under Section 304 Part-II, I.P.C.
7. On these aspects, we have heard the learned Additional Public Prosecutor.
8. At the outset, it shall be stated that the evidence of P.Ws.1 and 2 has been corroborated not only by the medical testimony adduced by P.Ws.6,7 and 8, the Doctors, but also by Ex.P.1 statement given by the deceased to P.W.9 Head Constable at the Police Station. Ex.P.1 statement of the deceased recorded under Section 161 Cr.P.C. and the evidence of P.W.1, clearly set out the overt acts attributed to A.2. Therefore, there is no reason to reject the evidence of P.Ws.1 and 2. Though it is stated that P.Ws.1 and 2 came after hearing the noise, it does not mean that they came to the scene of occurrence only after the occurrence was over. The details of the occurrence, as mentioned in Ex.P.1, have been clearly narrated by P.Ws.1 and 2. On the same lines, they have given statement to the investigating officer during the course of inquest.
9. In regard to the first accused, it is contended by the learned Senior Counsel that the offence under Section 302 r/w 34 IPC does not get attracted.
10. We find some force in the said contention. Ex.P.1 statement of the deceased, would implicate the first accused stating that he came near to the deceased and caught hold of him. P.W.1’s evidence in her chief examination, would show that the first accused caught hold of the deceased from behind. If it is true, there is no possibility for the second accused to cause injuries on the back of the deceased. During the course of cross examination, P.W.1 would state that the first accused caught hold of the deceased from the front side. As such, there is no consistency with reference to the overt act attributed to the first accused. Consequently, it has to be held that there is no acceptable material to show that the first accused came to the scene of occurrence and caught hold of the deceased while the deceased was attacked. Hence, the first accused is liable to be acquitted of the charge.
11. Learned Senior Counsel for the appellants would contend that when the deceased died due to the injuries inflicted upon him, P.W.8, the Doctor, who conducted post-mortem, stated that he could not give any specific reason for the death of the deceased. It would be proper to refer to the relevant portion of Ex.P.7 post-mortem certificate, which is as follows:
” i)1cm sutured gaping lacerated injury seen on the left back 7 cm above and lateral to the anterior-superior illiac spine and 16 cm below the inferior angle of left scalp. The wound is infected and pus pouring from it. The margins of the wound showed evidence of severe necrosis.
ii) Sutured laceration seen on the right back 14 cm lateral to the lower border of right scapula from the mid line. (The wound showed evidence of severe infection-margins yellowish in colour)
iii) 8 cm sutured laceration on the left side of back 17 cm from the anterior-superior illiac spine.
On Dissection of abdomen Two litres of brown coloured fluid seen within the abdominal cavity. Mesentery shows areas of necrosis and contusion. The peritoneum showed diffuse pus collection. The serosal aspect of the small intestine showed extensive thick pus in layers. The bowel in many places showed evidence of gangrene. The wound No.1 communicates with the abdominal cavity”
12. The above particulars given in Ex.P.7 post-mortem certificate, would indicate that there was ‘pus’ formation in the wounds and that various parts of the wounds were in decaying condition. However, P.W.8 Doctor, who conducted the post mortem would admit that the liver was found to be enlarged and the deceased was suffering from Jaundice and Tuberculosis. He also gave an opinion during the cross- examination that the deceased would have died due to these complications. This admission would make it clear that the deceased died of diseases suffered by him.
13. Further, it is seen from the evidence of P.W.8 Doctor that already some operations were done on the deceased. It is the evidence of P.W.14 Inspector of Police that he did not know as to whether any operation was conducted on the deceased, nor did he enquire into that aspect during the course of inquest. P.W.7 Doctor also would not give any opinion about the nature of the treatment given to the deceased. It is to be taken note of that the deceased was attacked on 1.2.1992 and he died only on 11.2.1992, i.e. nearly after ten days of the occurrence. Admittedly, the documents regarding the nature of treatment given and the case sheet, have not been produced before the Court.
14. In this context, it would be worthwhile to rely on the relevant observations of a Division Bench of this Court in 2002 (2) L.W.(Crl.) 769 (Rajan and others vs. State, rep. by Inspector of Police, etc.), wherein, this Court considered the nature of evidence in a somewhat similar circumstance. The relevant observations are as follows:
“16. In this regard, Learned counsel placed reliance on the ruling of the Supreme Court (Harish Kumar v. State (Delhi Administration), wherein the Supreme Court pointed out that the Court was not given proper materials to examine the nature of treatment given to the deceased. ….. ….. …..
‘ … …. We have seen the nature of the injuries and also the time gap between the time of infliction of the injury till the date of death which was two days after the injury was inflicted. We have no sufficient material as to the nature of the treatment given to the deceased during those two days.’
We accept the submissions made by learned counsel for the appellant in this regard and we have no hesitation to hold that A-1 can be held guilty only under Section 304 Part II IPC. and not under Section 302 IPC.”
15. The above decision of this Court, on the strength of the observations of the Supreme court in (Harish Kumar vs. State (Delhi Administration) ), in our view, would apply in all fours to the facts of the present case.
16. Therefore, we are of the view that the second accused is not liable to be convicted for the offence under Section 302 I.P.C. and at the most, he could be convicted for the offence under Section 304 Part-II, I.P.C. As such, he is liable to be convicted for the same.
17. In the result, the appeal is partly allowed;
(i) The conviction and sentence imposed on the first appellant/first accused by the trial Court are set aside. The first appellant/first accused is acquitted of the charge framed against him. The fine amount, if paid by him, shall be refunded to him. Since he is on bail, the bail bond executed by him shall stand cancelled.
(ii) The conviction and sentence imposed on the second appellant/second accused by the trial Court for the offence under Section 302 I.P.C. are set aside and instead, he is convicted for the offence under Section 304 Part-II, I.P.C. and sentenced to undergo rigorous imprisonment for five years. The fine amount, if paid by A-2, as imposed by the trial Court for the offence under Section 302 IPC, shall be refunded to him. Since he is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence.