JUDGMENT
P. Sathasivam, J.
1. Accused 1 to 5 in Sessions Case No. 54 of 1994 on the file of Principal Sessions Judge, Nagapattinam, Nagal Quide-E-Milleth District are the appellants in the above appeal. A-1 was charged for an offence under Section 148, IPC; A-2 to A-5 were charged for an offence under Section 147, IPC; and A-1 to A-5 for offences under Sections 341 and 302, IPC. By the impugned judgment dated 28-11-95, A-1 was found guilty under Sections 148. 341 and 302, IPC; A-2 under Sections 147, 341 and 302, IPC; A-3 to A-5 under Sections 147 and 341, IPC and they were acquitted of the offence under Section 302, IPC. The accused challenge the said conviction and sentence in this appeal.
2. On 19-4-1993 at about 22-00 hours at Panneerkottagam village, due to previous enmity, the first accused-Thamizharasan and others waylaided Athimoolam and his family members, A-1 Thamizharasan attacked the said Athimoolam on his head with iron pipe; A-2 Ganesan attacked him at the head with casuarina club and other accused attacked him with casuarina clubs on his persons, as a result of the same, the said Athimoolam was inflicted with bleeding injuries on his head and knees etc. The injured Athimoolam was taken to Government Hospital. Sirkali, from where he was referred to Thanjavur Medical College Hospital, Thanjavur. On 20-4-93 at 20.00 hours Sub-Inspector of Police. Pudupattinam Police Station registered a case in Crime No. 288/ 93 of Pudupattinam Police Station under Sections 147, 148, 341 and 326, IPC and took up investigation. The injured Athimoolam died while under treatment on 30-4-93 at Thanjavur Medical College Hospital. Thereafter, the offence under Section 326. IPC was altered into 302, IPC.
3. The case of the prosecution is briefly stated hereunder :
(i) The prosecution has examined 16 witnesses as RWs. 1 to 16, marked Exs. P-1 to P-20 and also marked M.Os.1 to 10 in support of their claim. The motive as per the prosecution case is that the prosecution party were prevented in selling illicit arrack in their village by the accused party. However, A-1 and A-2, in spite of objection by the deceased Athimoolam, were selling illicit arrack in their village and a case was registered against them (A-1 and A-2) in Pudupattinam Police Station. In regard to the complaint made by the deceased Athimoolam against A-1 and A-2 over the sale of arrack, the accused often threatened the prosecution party and were awaiting an opportunity to take revenge for the same. P.W. 1, son of the deceased, has deposed that on 19-4-93 at about 8.30 p.m. one Sunder of his village had informed him that his brother Ranganathan P.W. 2 was beaten by A-2 Ganesan, while the former was standing near Kalaignar tea stall at Panneerkottagam village. The said tea stall situates at half a k.m. from his village-Kodakaramoolai. On hearing this, P.W. 1 Saravanan, his father-deceased Arumugam, mother Kaliammal and the said Sundar proceeded to the said Kalaignar tea stall at Paneerkottagam village. On the way to the tea stall, A-2-Ganesan’s house is situated. After picking up his brother P.W. 2, they returned back. When they came near A-2 Ganesan’s house, his father deceased Athimoolam questioned by shouting as to the reason for beating his son P.W. 2. As nobody came from A-2’s house, they started to proceed to their village. At that time, near Dhanapal’s (P.W. 3) petty shop, they saw 5 or 6 persons standing there at a distance of 5 or 6 feet. P.W. 1 heard a noise from the side of those persons stating that “Athimoolam is coming. We have to beat him”. He recognised that it was A-2 who gave the sound. At that time, P.Ws. 3 and 4 were there with torch lights. They focused the burning lights on the group of persons, from which they saw the 5 accused standing there. First accused Thamilarasan was armed with an iron pipe, to a length of 31/2 feet and other accused were having casuarina clubs to a length of 21/2 feet. On seeing Athimoolam, A-1 beat him (Athimoolam) with the iron pipe-M.O. 1 on his head, A-2 beat him with Casuarina club on his head and other accused also beat him with casuarina clubs on his right leg knee, buttocks and back and ran away with the iron pipe and casuarina clubs. The deceased Athimoolam sustained bleeding injuries. When he was about to fall down, his mother caught hold of him. This incident had taken place around 10 p.m. the injured Athimoolam was taken to Government hospital. Sirkali around 1 a.m. (on 20-4-93) and after giving first aid, he was shifted to Government Hospital, Thanjavur around 4 a.m. On 20-4-93 at 11 a.m. Sub-Inspector of Police, Pudupattinam Police Station came there. As the injured was not in a position to speak, P.W. 1 narrated the incident to the Sub-Inspector of Police, who reduced the same in writing, which is Ex. P-1. On 30-4-93 at about 1.30 a. m. the deceased Adimoolam died in the Medical College Hospital, Thanjavur due to the injuries. P.W. 2, brother of P.W. 1 and son of the deceased Athimoolam reiterated the statement given by P.W. 1. P.W. 3 Dhanapal, though turned hostile, has deposed that at the time of the incident, he focused his burning torch light on A1, A2, A4 and A5 and identified them. He attested the Observation Mahazar-Ex. P-2, prepared by the Sub-Inspector of Police. He produced before the Sub-Inspector of Police bloodstained “lungi” M.O. 6, torch light M.O. 7, reminder of lungi M.O. 8.
(ii) P.W. 4 Balaiah, resident of Panneerkottagam village, reiterates the statement made by P.W. 1. He also attested Ex. P-2 Observation Mahazar and handed over the torch light M.O. 9 to the Sub-Inspector of Police.
(iii) Dr. Jayaraman, Assistant Medical Officer attached to Government Hospital, Sirkali, who initially treated the injured Athimoolam was examined as P.W. 7. According to him, the injured was taken to the hospital at 1 a.m. on 20-4-93 by one Saravanan P.W. 1, who informed him that on 19-4-1993 at 10 p.m. five known persons attacked his father-injured Athimoolam with iron pipe and casuarina clubs and caused multiple injuries to him. He noticed on the injured Athimoolam a lacerated fresh injury 4 cm x 1/2 cm x bone deep on the left posterior parietal region of the head. After treatment by treating as outpatient, he referred the injured to the Government Medical College Hospital, Thanjavur for further treatment. Ex. P-7 is the Accident Register and Ex. P-8 is the intimation sent by him to the police. P.W. 8, Assistant Medical Officer attached to Government Medical College Hospital, Thanjavur, admitted the deceased Athimoolam in the hospital at 4 a.m. on 20-4-03. The Accident Register issued by him is Ex. P-9 wherein he noted the injuries.
(iv) P.W. 14, the then Sub-Inspector of Police, Pudupattinam, on receipt of Ex. P-8 intimation from P.W. 7, went to the Government Medical College Hospital, Thanjavur and enquired the injured Athimoolam. As he was unconscious at that time, his son P.W. 1 gave a statement and P.W. 14 recorded the same. Ex. P-1 is the complaint. He registered a case in Crime No. 288/93 under Sections 147, 148, 341 and 326, IPC and prepared Ex. P-13 Printed FIR. He visited the scene of occurrence on the same night and after staying there, on the next day i.e. on 21-4-93 at 6 a.m. he prepared Observation Mahazar Ex. P-2 in the presence of P.Ws.3 and 4, drew Rough Sketch-Ex. P-14. He examined P.Ws. 3 and 4. He seized M.Os. 6 to 8 under Ex. P-3 Mahazar in the presence of P.W. 5 and one Kaliamoorthy. He seized M.O. 9-torch light under Mahazar-Ex. P-4 the presence of the same witnesses. On 22-4-93 has enquired P.W. 1 and arrested A-1, A-2. A-4 and A-5 at the junction of Panneerkottagam.
(v) One Thirunavukkarasu, the then Duty Doctor of the Government Medical College Hospital, Thanjavur. was examined as P.W. 9. According to him, the injured died at 1-30 a.m. on 30-4-93 due to head injuries and he intimated the fact of the death to the Out-Post Police Station. Ex. P-10 is the death intimation sent by him.
(vi) P. W. 11 was the Head Constable attached to Outpost Police Station, Government Medical College Hospital, Thanjavur. He received the death intimation-Ex. P-10 regarding the death of Athimoolam and informed the same to Pudupattinam Police Station and other higher authorities through wireless. P.W. 14, on receipt of intimation from the Government Medical College Hospital, Thanjavur on 30-4-93 that the injured Athimoolam died at 10.30 a.m., altered the offence into one under Section 302, IPC in the F.I.R. and forwarded Express report-ex. P-15 to the Court of Judicial Magistrate and higher authorities through P.W. 12 constable.
(vii) Thirugnanasambandam, the then Inspector of Police, Sirkali, was examined as P.W. 16. On receipt of Express report-Ex. P-15, he rushed to Thanjavur Medical College Hospital and conducted inquest on the body of Athimoolam between 2.30 p.m. and 5 p.m. in the presence of panchayatdars. The inquest report is Ex. P-20. He enquired P.Ws. 1 to 4, Kaliammal and Ranganathan and recorded their statements. He entrusted the body with constable-P.W. 1 for postmortem examination with his requisition-Ex. P-11.
(viii) Dr. Gandhi, the then Tutor in Forensic Medicine, Thanjavur Medical College Hospital, Thanjavur, was examined as P.W. 10. On receipt of Ex. P-11 requisition on 1-5-93 from the Inspector of Police, Sirkali, he conducted autopsy on the body of Athimoolam at about 1.00 p.m. He noticed a vertical sutured wound on the right tempero parietal area at the middle; a sutured wound over the left fron to parietal area and other 10 injures on the body of the deceased Athimoolam and issued Ex. P-12 postmortem certificate. He opined that the deceased would appear to have died of head injury.
(ix) P.W. 16-Inspector of Police enquired P.W. 7 on 2-5-93. He also recorded statement from P.W. 14-Sub-Inspector of Police, P.Ws. 12 and 13-constables. On 6-5-93 at about 8 a.m. near Madhanam Mariamman temple, he arrested A-3 in the presence of P.W. 6 and Ramalingam. He made a voluntary confession statement and Ex. P-5 is the admissible portion. Pursuant to Ex. P-5, A-3 took P.W. 16 to the house of one Sambandam, his father-in-law and identified the iron pipe, casuarina sticks-M.Os. 1 to 5 and the same were recovered under Mahazar-Ex. P-6. He also sent the M.Os. for chemical examination. On 15-6-93 he examined P.W. 10-Doctor, who conducted autopsy on the body of deceased Athimoolam, and obtained postmortem certificate-Ex. P-12 and after completing the investigation, he filed charge-sheet against the accused on 8-7-93 for offences under Sections 147, 148, 341 and 302, IPC.
4. The accused were questioned under Section 313, Cr.P.C., with regard to the incriminating circumstances, for which they denied the same.
5. Mr. K. V. Sridharan, learned counsel for the appellants/accused, after taking us through the oral and documentary evidence and the conclusion arrived at by the learned trial Judge, has raised the following contentions :
(i) The prosecution has failed to prove motive;
(ii) The Court below ought to have disbelieved the evidence of eye-witnesses, namely, P.Ws. 1 to 4, since there was no burning light at the time of the occurrence;
(iii) The learned Sessions Judge failed to see that only one injury was found on the head of the deceased; hence A-1 and A-2 cannot be convicted for the fatal injury caused on the deceased;
(iv) The Court below having disbelieved the case of the prosecution on the ground that it has not established its case that A-3 to A-5 have attacked the deceased with casuarina clubs, it ought to have rejected the evidence of eye-witnesses in toto;
(v) The deceased though sustained injuries on 19-4-93 at 10 p.m., died at 1.30 a.m. on 30-4-93 i.e., after 10 days. In such a circumstance, in the absence of examination of the Medical Officer, who treated the injured during that period, it cannot be presumed that the death was due to the injury caused on 19-4-93;
(vi) Inasmuch as the deceased party alone was the aggressors, and responsible for the incident, and the accused party have no intention to murder the deceased, A-1 and A-2 cannot be convicted under Section 302, IPC, but only 304, Part II, IPC applies.
6. On he other hand, learned Additional Public Prosecutor would contend that the prosecution has established the motive for the occurrence, and the evidence of eye-witnesses-RWs. 1 to 4 proved the case of the prosecution; hence the learned trial Judge was right in convicting the accused and sentencing them. There is no ground for interference.
7. We have carefully considered the rival submissions.
8. P.Ws. 1 and 2 are the sons of the deceased Athimoolam. The prosecution party belong to Kodakkaramoolai village which comes within Pudupattinam Police Station. It is also seen that prior to the occurrence, the deceased Athimoolam himself was selling illicit arrack and at the intervention of the panchayatdars, he stopped the business. Accused party belong to Panneerkottagam village. Accused 1 and 2 are also brothers. A-3 is the conductor. A-3 to A-5 are friends of A-1 and A-2. It is also the case of the prosecution that since A-1 and A-2 continued to sell illicit arrack in the village of the deceased and P.Ws. 1 to 4, the deceased Athimoolam made a complaint against them to the police, due to which the accused party has got motive and was waiting for an opportunity to revenge them. Though P.Ws. 1 and 2 referred the same in their evidence, it seems that prior to his death, the deceased Athimoolam was selling illicit arrack and he stopped the business at the intervention of his villagers and in such a situation, he also expected that A-1 and A-2 should not sell illicit arrack in his village at Kottaramoolai.
9. Another incident referred to and relied on by the prosecution witnesses is that on 19-4-93 at 8 p.m., when P.W. 2 after taking tea in Kalaignar tea stall, was standing in the bus-stop at Panneerkottagam village along with one Sunder. All the five accused were standing there. On seeing P.W. 2, A-2 scolded him. When questioned, he (A2) slapped him on his cheek. It is seen that while P.W. 2 stayed there, the said Sunder came to Kottaramoolai and informed the incident to P.W. 2’s parents. On coming to know the incident through Sunder, P.W. 1, his father Athimoolam, mother Kaliammal and Sunder proceeded to the Kalaignar tea stall and verified with P.W. 2. While they were coming back to their village Kottaramoolai, near A-2’s house, the deceased Athimoolam questioned his (A2) behaviour and the reason as to why his son was beaten by him. Since nobody came from A-2’s house, they proceeded to their village. When they were passing through a petty shop of one Dhanapal, P.W. 1 heard a voice of A-2 saying that “we have to beat Athimoolam”. Dhanapal-P.W. 3 who as having a torch light-M.O. 7 at that time was able to see all the five accused standing there. On seeing the accused, the deceased questioned them. At that time, A-1 beat the deceased on his head with iron rod, A-2 also beat him on his head with casuarina stick. The other 3 accused also beat the deceased on his legs. P.W. 2 corroborates the evidence of P.W. 1 in all aspects. Though P.Ws. 3 and 4 also referred the incident, the evidence of P.W. 3 was treated as hostile since he did not support the prosecution case at the later point of time. It is clear from the evidence of P.Ws. 1, 2 and 4 that though initially A-2 beat P.W. 2 in front of the Kalaignar tea stall at Panneerkottagam village, on hearing the same through one Sunder, P.W. 1 and his father deceased Athimoolam went there, enquired about the incident and while coming back to their village, near A-2 house, he questioned the act of A-2 by stating that, “(Vernacular matter omitted)”. It is relevant to note that in spite of the aggressive scolding of the deceased as to the authority under which A-2 beat his son-P.W. 2, no one came out from A-2’s house. Thereafter, the prosecution party “proceeded further to the village and only near P.W, 3’s (Dhanapal) petty shop, they saw all the five accused standing there through the burning torch lights-M.Os. 7 and 9. It is also spoken to by P.W. 1 that on seeing the accused party armed with weapons, their village Headman-Natesan, Dhanapal-P.W. 3 and Balaiah-P.W. 4 tried to pacify the accused party and requested them not to quarrel with the prosecution witnesses. It is further seen that at that time, the deceased questioned the accused. Immediately, A-1 beat him on his head with an iron rod and A-2 beat him with a casuarina club. As said earlier, P.W. 2 also refers the conduct of his father-deceased Athimoolam and the accused party. It is also relevant to refer the evidence of P.W. 4, who deposed that Athimoolam and his son-P. Ws. 1 and 2 returned back from the tea stall by discussing about the incident of beating of P.W. 2 by A-2 and while they were crossing the house of A-2 Ganesan, they scolded them. In cross-examination, P.W. 4 has stated that, “(Vernacular matter omitted)” In Ex. P-1 which is a complaint made by P.W. 1 to the Sub-Inspector of Police-P.W. 14, it is stated that, “(Vernacular matter omitted)” It is also seen that in spite of such provocative statement from the deceased, neither A-2 nor any other accused came out and resisted the prosecution party. Only when they went near P.W. 3’s petty shop, they saw the accused standing there.
10. As rightly argued by the learned counsel for the appellants, it is clear from the evidence of P.Ws. 1 to 4 and Ex. P-1 that both the deceased, A-1 and A-2 were selling illicit arrack in their village. Though A-2 slapped P.W. 2 near the Kalaignar tea stall prior to the occurrence, on hearing the same through one Sunder, it was P.W. 1, the deceased, his mother Kaliammal and Sunder proceeded to the scene of occurrence to question A-2. We have already extracted the scolding or threatening call of the deceased near the house of A-2. It is also relevant to note that P.Ws. 1, 2 and 4 nowhere stated in their evidence that A-1 or other accused threatened to kill the deceased or other prosecution party. It is relevant to note that even P.W. 1 has stated that he had heard a sound that “we have to beat Arumugham”. In chief examination, he has stated that, “(Vernacular matter omitted)” It is clear from the words uttered and spoken to by P.Ws. 1 and 2, the accused have no intention to murder the deceased and at the most, it may be presumed that they decided to beat the deceased Athimoolam. In such a circumstance, A-1 and A-2 cannot be dealt with under Section 302, IPC as claimed. In this regard, learned counsel for the appellants has pressed into service a decision in the case of Sudina Prasad v. State of Bihar, reported in 2003 SCC (Cri) 1692. In that case, the appellants/accused had been convicted by the trial Court for the offences under Section 302 read with Section 149 of the Indian Penal Code besides Sections 147 and 149, IPC and Section 27 of the Arms Act. All of them sentenced to imprisonment for life on the main count and for lesser sentences for the lesser offences. The High Court confirmed the conviction and sentence passed on all of them and dismissed the appeal filed by them. Aggrieved by the judgment of the High Court confirming the life imprisonment, the accused preferred appeal to the Supreme Court. After noting ante-mortem injuries on the body of the deceased from the postmortem report, the argument was made that A-1 was armed with a gun and another accused armed with a pistol. In spite of such possession of lethal weapons neither of them used it and if the intention was to murder the deceased, at least A-1 would have fired the gun. It was also contended that 11 out of 12 injuries did not cause any damage to the internal organs. Considering the said arguments, Their Lordships observed (para 7) :
“7. We feel that the aforesaid arguments based on the abovementioned two broad features is a strong circumstance for us to think that the common intention of the assailants was only to thrash the deceased and to inflict him with injuries. The grievous injury caused need not necessarily have been intended by them. Nonetheless they should have been credited with the knowledge that such injuries could possibly result in his death.
8. For the aforesaid reasons, we are inclined to accept the arguments of the learned counsel for the appellant. We, therefore, alter the conviction from Section 302, IPC to Section 304, Part II, IPC……”
Another decision relied on is in the case of Sardul Singh v. State of Haryana, . Considering similar circumstance and similar argument that the word uttered by the accused did not show that they had real intention to murder the deceased, the Supreme Court convicted the accused therein only under Section 325. IPC and not under Section 302. IPC. The following conclusion in para 13 is relevant:
“13. The next important question is as to what would be the nature of offence really committed, on the facts proved by the prosecution. The sticks said to have been used and recovered are of “poplar tree”, the wood of which was considered to be soft and light and stated to be usually used for manufacturing matchsticks. While testifying on oath before Court, P.W. 8 has only stated that he and the deceased “should not be allowed to go” and not allowed to go alive or must be finished. This factor taken together with the nature of sticks used and the admitted rivalry on account of some elections would indicate that the accused meant at best, to give a sound thrashing to the victim. Since it was during night-time, some of the blows might have also landed on the vital portion of the head, even in the absence of any deliberate intention to kill and, therefore, be possibly inferred from the facts proved. The intention to cause death or cause such bodily injury as was likely to cause death in the normal or ordinary course cannot be readily imputed to the accused. Taken individually or even jointly together, if at all the common intention could have been merely to commit an assault and inflict some injuries but not to cause such injuries as would or is likely to cause or result in death………..”
11. Now we shall consider the evidence relating to injures. In Ex. P-1, P.W. 1 has stated that A-1 beat the deceased on his head with iron pipe-M.O. 1 and A-2 on the head by casuarina club. P.W. 1 reiterated in his evidence before the Court that A-1 beat his father on his head with M.O. 1 and A-2 with casuarina club. The incident had occurred at 10 p.m. Immediately after the occurrence, the injured Athimoolam was taken to Sirkali Government Hospital at 1 a.m. and after administering First Aid, he was shifted to Thanjavur Medical College Hospital around 4 a.m. for further treatment. P.W. 7 who treated the deceased at Government Hospital, Sirkali has stated that at the time of admission, the deceased Athimoolam, who was brought by his son-P.W. 1, was unconscious and Was not able to speak. He noticed only one injury on his head. In his evidence before the Court, he has specifically stated that except one injury on the left side of the head, no other injury was found in the body of Athimoolam. P,W. 7 has noted the following injury in Ex. P-7-Accident Register :–
“1) A lacerated fresh injury 4 cm x 1/2 cm x bone deep found. Sagitating on the left posterior parietal region of the head. No other ext. injuries found……..”
P. W. 10 Dr. Gandhi, who conducted postmortem on the body of the deceased Athimoolam, has stated in his evidence that he has noticed two injuries on the head and 10 injuries in other parts of the body of the deceased. He has opined in his postmortem certificate-Ex. P-12 that “the deceased would appear to have died of head injury.” Though in his evidence he has referred to injuries on left hand, left leg, right leg and other parts of the body, in his cross-examination, he has admitted that it would be difficult for him to say how the deceased sustained such abrasions. In the light of the evidence of P.W. 7, Exs. P-7, P-10 and P-12, it is clear that the deceased sustained head injuries at the hands of A-1, which resulted in his death. Though it is stated that A-2 beat the deceased on the head with casuarina club, the evidence of P.W. 7-Doctor and Ex. P-7-Accident Register do not prove the same. Likewise, there is no acceptable evidence to show that A-3 to A-5 beat the deceased with casuarina clubs. For the sake of repetition, we once again referred to the evidence of P.W. 7, who noticed an injury on the deceased at the earliest point of time viz., at the time of admission in the Government Hospital, Sirkali and after examination, he noted the said injury that was caused on his head in Ex. P-7 Accident Register and he has specifically stated that except the said head injury, he could not find any other injury in the body of the deceased. In such a circumstance, merely because there is reference that there were injuries on the hand and leg of the deceased in the postmortem certificate-Ex. P-12, it is not safe to hold that A3 to A5 caused injuries on the deceased by casuarina club. It is also relevant to note that though P.W. 3 has said that with the burning torch light-M.O. 7, he saw the accused near his petty shop, admittedly, he was treated as hostile witness. It is true that according to prosecution, P.W. 4 was also having torch light-M.O. 9 and with the help of the burning torch light, he saw the accused. The occurrence took place at 10 p.m. Except the two torch lights, the recovery and seizure itself are in doubtful. There is no light burning at the place of occurrence to identify the specific overt act attributed against the accused, particularly A-3 to A-5. Even if we accept that A-1 beat the deceased on his head with iron pipe-M.O. 1 and A-2 with casuarina club, absolutely there is no acceptable legal evidence in so far as A-3 to A-5 are concerned. The learned Sessions Judge having held that the prosecution has hot established its case that A3 to A5 attacked the deceased with casuarina club, it committed an error in holding that the prosecution has proved the charge under Sections 147 and 341, IPC.
12. Now we shall consider the other contentions, namely, non-examination of the Doctor who treated the deceased at the Medical College Hospital, Thanjavur from 20-4-93 to 30-4-93. when the prosecution case is that the deceased, who sustained injuries on 19-4-93, died only on 30-4-1993. There is no dispute that the occurrence took place on 19-4-2003 at about 10 a.m. Immediately the deceased was taken by P.W. 1 to Government Hospital, Sirkali at 1 a.m. on 20-4-93, where he was examined and given First Aid by P.W. 7. The Accident Register-Ex. P-7 shows only one injury on his head. Then the injured was referred to Thanjavur Medical College Hospital and he was admitted there around 4 a.m. on the same day. When he was taking treatment as in-patient, he died on 30-4-03 at 1.30 a.m. Though P. 10, who conducted postmortem, refers to the head injury and certain other injuries on the body of the deceased, Ex. P-12 Postmortem report shows that the deceased would have died of head injury. As rightly argued by the learned counsel for the appellants, absolutely there is no evidence regarding the treatment given to the deceased between the period 19-4-93 and 30-4-93 at Thanjavur Medical College Hospital. No doubt, no suggestion was put to P.W. 8 who admitted the deceased at the Thanjavur Medical College Hospital 20-4-93 at 4 p.m. and P.W. 10, who conducted post-mortem on the body of the deceased, and recorded his opinion in Ex. P-12 that he died due to the injury on the head. When the deceased died of other injuries, it is the settled legal position that it is incumbent on the part of the prosecution to explain the nature of the treatment given to the deceased during the period he took treatment till his death. Learned counsel for the appellants would submit that in the absence of evidence regarding the nature of treatment given to the deceased during that period it is not safe to convict the accused for the offence of murder on the ground that the injury inflicted by A-1 caused his death. Though P.W. 10 in his report Ex. P-12 has stated that the deceased would have died of head injury, inasmuch as the deceased had treatment from 19-4-93 to 30-4-93, the details regarding the treatment given to him are relevant while convicting the accused for the offence of murder on the ground that the injury inflicted by A-1 and A-2 caused his death. In Thangappan v. State, reported in (2002) 1 Mad LW (Cri) 107, the very same contention was considered by a Division Bench of this Court. In the case before the Division Bench, the deceased though sustained injury on 8-12-1990, died only on 23-12-90 and the prosecution did not examine the doctor who treated him at Kottar Government Hospital, Nagercoil as well as the other doctor who treated him at the Government Hospital, Palayamkottai and contended that in the absence of nature of the treatment given by the doctors, it will not be safe to convict the accused for an offence of murder on the ground that the injury inflicted by him caused his death. Accepting the said argument, the Division Bench has observed that (para 12) :
“12…….. The prosecution had no explanation to offer, as to why the wound certificate, issued by the said Doctor for the injuries noted on the deceased was not marked. The prosecution also did not examine the Doctor, who treated the deceased at the Kottar Government Hospital, Nagercoil. The nature of treatment received by the deceased at Kottar Government Hospital at Nagercoil as well as at Palayamkottai Government Hospital remain a mystery to the Court. The prosecution neither examined the Doctors, who treated the deceased, nor did they produce any document to show the nature of treatment received by him. They did not even mark the case sheet, which would have shown the nature of treatment given by the Doctors to the deceased……… In the absence of any evidence from the side of the prosecution that the said complications were on account of the injury, this Court has only to presume that those complications were on account of some other supervening cause and not on account of the injury. Once we hold that there is a doubt as to the cause of the complications viz., whether they were due to the injury or whether they were due to some other supervening cause, then, this Court cannot give a finding that the deceased died on account the complications arising directly out of the wound.”
After holding so, the Division Bench found that the accused inflicted injury on the head of the deceased, the prosecution did not establish that the injury caused the death of the deceased, convicted the accused under Section 326, IPC for causing grievous injury to the deceased and modified the sentence accordingly.
13. It is also relevant to refer another Division Bench decision of this Court in Rajan v. State represented by Inspector of Police, etc., reported in (2002) 2 Mad LW (Cri) 769. It was contended before the Division Bench that even assuming the prosecution has proved its case beyond all reasonable doubts, A-1 cannot be found guilty under Section 302, IPC and at best he can be held guilty only under Section 304. Part II, IPC. In support of the said contention, out of two points referred to, the second point relates to non-examination of the Doctor who treated the deceased at CMC Hospital, Coimbatore. In that case, the deceased died after two days at the CMC Hospital, Coimbatore and that the nature of the treatment given to the deceased during that period has not been made known to the Court by marking the case sheet or by examining the Doctor concerned, who treated the deceased. While accepting the said contention, taking note of the fact that the Doctor who treated the deceased at the CMC Hospital, Coimbatore was not examined and case sheet not produced, the Division Bench has concluded thus (para 15) :
“15. We also find substance in the submission that the non-examination of the Doctor, who treated the deceased at the C.M.C. Hospital, Coimbatore and failure to produce the case sheet would come to rescue of the accused from being found guilty under Section 302, IPC. As rightly pointed out by the learned counsel for the appellant, had the case sheet been marked and the Doctor who treated the deceased was examined, the accused would have been in a position to examine the same and cross-examine on the aspects required.”
The Division Bench has also referred to a ruling of the Supreme Court in 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 the treatment given to the deceased. After referring to the factual details, in the absence of examination of the Doctor, who treated the deceased and other materials like case sheet etc., the Supreme Court has observed thus :
“………..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.”
In the case before the Division Bench, the deceased died after a period of two days at the C.M.C. Hospital, Coimbatore. Even for the treatment for the period of two days, due to non-examination of the Doctor, who treated the deceased at the said hospital and failure to produce the case sheet, accepted the submissions made by the learned counsel for the appellant and found that A-1 can be held guilty only under Section 304, Part II and not under Section 302, IPC.
14. As we have already referred to the fact that the deceased after sustaining injuries at 10 p.m. on 19-4-93, was initially taken to Government Hospital, Sirkali, thereafter shifted to the Medical College Hospital at Thanjavur for further treatment, where he died on 30-4-93. Though three Doctors have been examined on the side of the prosecution, there is no evidence with regard to the details regarding the treatment given to the deceased or case sheet was not filed and marked. P.W. 7 after noting the nature of the only injury in Ex. P-7-Accident Register, and after administering first aid, referred the deceased Athimoolam to Thanjavur Medical College Hospital for further treatment. We cannot expect anything more from him for the treatment given by him in the Government Hospital at Sirkali. P.W. 8-Dr. Anantharamakrishnan, who admitted the deceased in the Medical College Hospital at Thanjavur at 4 a.m. on 20-4-93, has not spoken to the treatment given to the deceased. The Accident Register-Ex. P-9, issued by him, also does not show anything about the treatment given to the deceased. The only other Doctor is P.W. 10, who conducted the postmortem on the body of the deceased Athimoolam. He noted the injuries found on the body of the deceased Athimoolam in his postmortem certificate-Ex. P-12. As said earlier, though in Ex. P-12 he. observed that the deceased would appear to have died of head injury, absolutely there is no material or iota of evidence with regard to the details of treatment given to the deceased from 4 a.m. on 20-4-93 till his death at 1.30 a.m. on 30-4-93. During this period of 10 days, some treatment might have been given to the deceased Athimoolam at the Thanjavur Medical College Hospital by various Doctors. The fact remains that neither of the Doctors, who treated him during this period, was examined nor the case sheet was filed and marked before the Court. In such a circumstance, in the absence of any evidence regarding the nature of treatment given to the deceased Athimoolam during the period between 19-4-1993 and 30-4-93, we accept the submissions made by the learned counsel for the appellants and we have no hesitation to hold that A-1 and A-2 can be held guilty only under Section 304, Part II, IPC and not under Section 302, IPC.
15. In the light of the above discussion, we hold that A-1 and A-2 are guilty of the offence under Section 304, Part II, IPC. It is relevant to note that the occurrence took place on 19-4-93, roughly 10 years have gone. Records show that A-1 was in jail for a period of 3 years and 8 months, while A-2 for a period of 2 years and 9 months. Hence, we set aside the conviction and sentence imposed on A-1 and A-2 for the offence under Section 302, IPC, instead they are convicted for the offence under Section 304, Part II IPC, and sentence them to the period already undergone by them. A-3 to A-5 are acquitted of the offences under Section 147 and 341, IPC. The Appeal is allowed to the extent mentioned above. The bail bond, if any, shall stand cancelled.