COMP.A/1167/2001 of Vs on 4 December 2001

:JUDGMENT

(Judgment of the court was delivered byJustice R.Balasubramanian)

A1 to A4 in S.C.No.111/2001 on the file of the Court of Sessions,Nagapattinam are the appellants in this appeal. All of them were charged foran offence under section 302 read with section 34 I.P.C. In addition to theabove, A4 was also charged for an offence under section 307 I.P.C for makingan attempt on the life of P.W.1. The learned Sessions Judge convicted all theaccused under the first charge referred to above and sentenced them to undergoimprisonment for life together with a fine of Rs.1,000/- each, carrying adefault sentence. However, A4 was acquitted of the offence under section 307I.P.C and instead, he stands convicted for an offence under section 324 I.P.Cand sentenced to a fine of Rs.1,000/-, carrying a default sentence. It isthat conviction which is in challenge in this appeal. Heard Mr. V.Gopinathlearned senior counsel appearing for the appellants and Mr.E.Raja learned

2. The occurrence is shown to have taken place at about 3.00 p.m on08.01.2000, during which, one Mathivanan, who is stated to have been attackedby A1 to A4, succumbed later on to the injuries on 22.01.20 00 and in thecourse of the same transaction, P.W.1 is also shown to have been attacked byA4. To sustain their case, the prosecution examined P.Ws.1 to 3 as eyewitnesses to the occurrence, besides medical and other official witnesses.The case of the prosecution as spoken to by P.W.1 is as follows:"A1 is her father-in-law. A2 is A1's brother-in-law. A3 and A4 arethe sons of A1. She is the wife of the deceased. There was a propertydispute between the accused on the one hand and her husband. A panchayat wasconvened in regard thereto on the day of the occurrence, which was attended toby her husband. He was returning home. En-route, he was way-laid by all theaccused and they attacked him, which she witnessed. They attacked her husbandwith sticks and suluki. A1 and A2 attacked her husband on his head and handswith suluki. A2 also attacked her husband on his head and hands. A3 and A4attacked her husband on his head with a wooden log. She ran towards herhusband and she was also beaten. A4 attacked her on her head and hands withsuluki. Her husband fell down and all the accused ran away. P.W.2, a localvillager, took her and her husband to the Government Head Quarters Hospital atNagapattinam, where they were admitted as in-patients for treatment. On thethird day, her husband was transferred for better treatment to the GovernmentHead Quarters Hospital at Thanjavur and thirteen days after the date ofoccurrence, her husband died."

3. P.W.1 identified the weapons of offence used by the accused.

P.W.7 is the Casualty Medical Officer in the Government Head Quarters Hospitalat Nagapattinam. At about 4.30 p.m on 08.01.2000, injured Mathivanan/sincedeceased was brought before him by P.W.2 and the injured told him that atabout 3.00 p.m on that day, five persons attacked him. P.W.7 noticed theinjured smelling arrack. He found on him various injuries as noted inEx.P.6/accident register and they are as follows:

"1) Diffusion left fore arm.

2) Contusion 12 cm x 2 cm left proximal part fore arm (L)

3) Punctured injury + cm x + lower part of left arm lateralaspect

4) Contusion 8 cm x 6 cm right arm

5) Incised injury 4 cm x , cm left side of the occipital

6) Punctured injury + x , right arm lower part lateral aspect X-Ray left fore arm, Right arm - Lat"

He also examined P.W.1, who was brought before him by P.W.2, at about 4.40 p.mon the same day and she informed him that she was attacked by five knownpersons with a stick at about 3.00 p.m on 08.01.2000. On examining her, hefound on her the following symptoms:

"1.Incised injuries 5 cm x 1 cm above occiput

2. Contusion 8 cm x 4 cm left fore arm

3. Diffused left fore arm"

Ex.P.7 is the accident register and Ex.P.8 is the wound certificate. TheDoctor is of the opinion that the injuries noticed by him on injuredMathivanan/since deceased and P.W.1 could have been caused in the manner andat the time alleged. In Ex.P.8, injury No.3 found on P.W.1 is described asgrievous. (At this stage, this court is informed by the learned seniorcounsel that as the X-Ray taken for this injury had not been marked andtherefore, the learned trial Judge was inclined to convict A4 only for theoffence under section 324 I.P.C and that finding had become final).

4. P.W.10 was the Head Constable in the Investigating Police Station during the relevant time. At about 4.45 p.m on 08.01.2000, he receivedinformation from the Nagapattinam Government Hospital police outpost aboutthis incident; he reached the hospital at 6.00 p.m and collected Exs.P.11 andP.12 namely, the hospital intimation regarding injured Mathivanan and P.W.1.He examined Mathivanan; recorded his statement and took his left thumbimpression in it. Ex.P.13 is the said statement. He came back to the policestation and registered it in Crime No.22/2000 for offences under sections 323and 324 I.P.C. Ex.P.14 is the printed first information report prepared byhim. He sent the material records to the court as well as to the higherofficials. On the same day at 6.00 p.m., he examined A1 in the hospitalitself (he was there as an in-patient) and recorded his statement. Heregistered that complaint in his police station Crime No.21/2000 for offencesunder sections 294-B and 323 I.P.C. He examined P.Ws.2, 3, 4 and others andrecorded their statements. He went to the scene of occurrence and in thepresence of P.W.4 and another, prepared Ex.P.1, the observation mahazar. Thenhe prepared Ex.P.15, the rough sketch. As injured Mathivanan was not in aposition to speak on 09.01.2000, he could not record his statement again. He arrested A1, A2 and A4 on 21.01.2000 and sent them for judicial remand. Hereceived an information from the hospital that injured Mathivanan died on21.01.2000 and therefore handed over the case diary to the InvestigatingOfficer. Ex.P.10 is the death intimation.

5. P.W.12 is the Investigating Officer in this case. On receipt of

Ex.P.10, the death intimation, from the police constable given by theGovernment Head Quarters Hospital at Thanjavur, he went to the police stationat 10.30 a.m on 22.01.2000 and altered the section of offence into one undersection 302 I.P.C. He prepared Ex.P.17, the altered printed first informationreport and sent the same to the court as well as to the higher officials.Then he reached the mortuary in the hospital at Thanjavur and preparedEx.P.18, the observation mahazar, in the presence of P.Ws.2 and 3. Heexamined P.Ws. 1, 2, 3 and others and recorded their statements. From 11.30a.m on that day, he conducted inquest over the dead body in the presence ofpanchayatdars and witnesses and prepared Ex.P.19, the inquest report. Heexamined further witnesses and recorded their statements. On priorinformation, he arrested A1, A2 and A3 on 27.01.000 in the presence of P.Ws.5and 6 and examined them. A1, at that time, gave a confession statement, theadmissible portion of which is marked as Ex.P.20 in this case. Pursuant to Ex.P.20, M.Os.1 to 4 came to be recovered under Ex.P.1 attested by witnesses.He reached the police station with the material objects and the accused andsent them for judicial remand. He went to the scene of occurrence on27.01.2000 and prepared Exs.P.22 and P.23, the observation mahazar and roughsketch respectively. He examined further witnesses and recorded theirstatements.

6. P.W.2 would depose that "he saw all the accused chasingMathivanan/since deceased and he also followed them. Near the house ofMathivanan, all the accused attacked him with suluki and wooden log. A1 wasarmed with suluki and he is not aware as to the nature of weapon in the handsof the other accused. P.W.1 was there and she was beaten by A4.Mathivanan/since deceased fell down and all the accused ran away. He tookboth the injured to the Government Hospital at Nagapattinam and admitted themas in-patients. He also accompanied Mathivanan when he was transferred fromthe Government Hospital at Nagapattinam to the Government Hospital atThanjavur. Mathivanan died thirteen days after the incident." P.W.3 is theyounger brother of the deceased and he would also claim to have seen theentire occurrence. He would also state that P.W.2 took both the injured tothe Government Hospital at Nagapattinam for treatment and that his brotherdied fifteen days after the occurrence. P.W.4 witnessed the preparation ofEx.P.1 , the observation mahazar. P.Ws.5 and 6, who were examined to speakabout the arrest of the accused and recording their statements under section27 of the Indian Evidence Act, turned hostile. As suggested by P.W.7, injuredMathivanan was transferred to the Government Head Quarters Hospital atThanjavur. P.W.11, during the relevant time, was the Medical Officer in theGovernment Medical College Hospital at Thanjavur. On 10.01.2000 at about 2.00p.m., injured Mathivanan, who was transferred from the Government Hospital atNagapattinam, was brought before him for further treatment. He examined himimmediately and found the injured unconscious. As the injured had headinjuries, steps were taken to take X-Rays. Mathivanan was admitted as anin-patient. Ex.P.16 is the accident register given by him. P.W.9 is anotherMedical Officer in the Government Hospital at Thanjavur. He would state thathe received the information namely, Mathivanan was struggling for his life inthe neuro ward at about 00.40 hours on 22.01 .2000 and he immediately went toattend him. He would also state that despite his best efforts, Mathivanan didnot survive and he died. He sent Ex.P.10/death intimation to the police.P.W.12 continued the investigation further, by examining P.Ws.7, 8, 9 and 11and recorded their statements. He sent the case properties to the court withEx.P.24/requisition to subject the same for chemical examination. As anenclosure to Ex.P.25/court's letter, the material objects were sent to thelaboratory and Ex.P.26 is the chemical examiner's report. P. W.12 wassucceeded by P.W.13 and he, after verifying the investigation already done bythe earlier Investigating Officer, filed the final report before court on07.08.2000 against the accused for offences under sections 302 read withsection 34 I.P.C., 326 I.P.C and 327 I.P.C. When the accused were questionedunder section 313 of the Code of Criminal Procedure on the basis of theincriminating materials made available against them, they denied each andevery circumstance put up against them as false and contrary to facts. Nowitnesses were examined on their side. But however, the accused marked Ex.D.1through P.W.7 in his cross examination and marked Ex.D.2 through P.W.10 during his cross examination.

7. The question that falls for decision is whether the conviction of the accused for the offences referred to above is supported by any legalmaterial? Mr.V.Gopinath, the learned senior counsel appearing for theappellants, would submit the following points:

a) The place of occurrence is shifted to the advantage of the prosecution.

b) P.Ws.2 and 3 could not have witnessed the occurrence at all and

therefore their evidence should be disbelieved.

c) P.W.2 had admitted that A1 had sustained injuries in the same transaction in which Mathivanan/since deceased came to sustain the injuries.This means, there was a quarrel between the two groups. If that is so, thenthe case of each individual must be considered on their own individual acts.d) When there is a quarrel, there is no question of sharing the commonintention by one accused with the other accused and it stands eliminated.e) The prosecution had failed to place before the court any medicalevidence to show what is the treatment given to Mathivanan/since deceasedbetween the date of the incident and the date of his death. This vitiates theentire prosecution case and in any event, in the absence of medical evidence,even the individual, assuming he caused the fatal attack, cannot be foundguilty for an offence under section 302 I.P.C but only for a lesser offence.For this purpose, the learned senior counsel relied upon a Division Benchjudgment of this court in the case reported in 2001-1 L.W.Crl.Pg.354(Nammalwar Vs. State, etc.)

f) There is discrepancy in the evidence of the witnesses as to the weapons used by each of the accused vis-a-vis the deceased as well as P.W.1and the benefit of the same should be given to the accused.

We heard the learned Additional Public Prosecutor on all these points. Thelearned Additional Public Prosecutor, relying upon the judgment reported in1999 Volume I S.C.C. Pg.120, would submit that when there is medical evidenceto show that the death was caused by septicemia, which was due to head injuryand the said injury was sufficient in the ordinary course of nature to causedeath, the conviction under section 302 I.P.C would be proper.

8. We applied our mind to the various materials on record. On account of the injuries sustained on 08.01.000, the injured (Mathivanan) diedon 22.01.2000. However, when he was alive, he was examined by P.W.10, theHead Constable, and his statement was recorded, in which, his left thumbimpression was obtained. Since he died after giving that statement, thatstatement becomes admissible in evidence as a dying declaration. We perusedEx.P.13 and the oral evidence of P.W.10. Though P.W.10 had not taken theprecaution of having Ex.P.13 attested by the Medical Officer on duty at thattime namely, at the time of recording, in our opinion, that lapse by itself,on the totality of the circumstances surrounding the recording of Ex.P.13,would not enable this court to doubt the very recording of Ex.P.13. It may benoticed here that, on Ex.P.13, a crime was registered only for offences undersections 323 and 324 I.P.C. Though it is expected of a police officer to sendthe material records namely, the complaint and the first information report, to the court at the earliest point of time to avoid any criticism on the truthof it, yet we find that Exs.P.13 and P.14 had reached the court only at 1.00p.m on 12.01.2000. It is no doubt true that there is a lapse on the part ofthe Investigating Police Station in not sending these material records in timeto the court. But however, having regard to the nature of the offence thatstood registered on that day and the death of the injured itself taking placeonly on 22.01.2000, we are not inclined to attach much importance to the delaycaused in sending Exs.P.13 and P.14 to the court. In other words, in ourconsidered opinion, the delay in sending Exs.P.1 3 and P.!4 to the court is not going to discredit the case of the prosecution, if it is otherwisetrustworthy. Therefore we are inclined to accept the contents of Ex.P.13 as atrue version.

9. In the background of our reflection of mind on Ex.P.13, weproceeded to analyse the arguments advanced by the learned senior counselappearing for the appellants. It is no doubt true that in Ex.P.13 it isstated that the attack took place in the house of the victim. But the uniformevidence of P.Ws.1, 2 and 3 is that, as the victim was on his way back home,he was way-laid and attacked. P.W.1 would admit in her evidence that theplace of attack is hardly 50 feet away from her house. Therefore, theevidence of P.W.1 as referred to above and the contents of Ex.P.13 namely, theinjured had returned to his house, cannot be necessarily taken to mean thatthe occurrence had taken place only inside the house and not anywhere else.The expression used by the injured in Ex.P.13 that after panchayat, he hadcome back to his house, does not rule out the position that he was on his wayback to his house and the place of occurrence is shown to be so near to hishouse. From a perusal of Ex.P.15/rough sketch, it is seen that from the placeof attack, the house of the victim is on the southern side and in between,there are no other houses. Therefore, we do not find much of a differenceregarding the place of occurrence as set out in Ex.P.13 and the oral evidenceof P.Ws.1, 2, and 3 and accordingly, we reject the argument of the learnedsenior counsel for the appellants that there is a serious doubt as to whereexactly the occurrence took place. Now let us find out whether P.Ws.2 and 3could be eye witnesses at all to the occurrence? We have already concludedthat Ex.P.13 is a true version. In Ex.P.13, the name of P.W.3 is notmentioned as an eye witness at all. We are fully aware that a mere omissionto mention the name of any person as an eye witness in the earliestinformation lodged by itself would not mean that persons other than whosenames are mentioned in the complaint could not be examined as eye witnesses.It all depends upon the facts of each case and the observing capacity of theindividual, who lodges the information. But the facts in this case areslightly disturbing us i.e., absence of the name of P.W.3 in Ex.P.13 as an eyewitness could be viewed seriously or not? P.W.3 is none else than the youngerbrother of the deceased in this case and brother-in-law of P.W.1. One canunderstand if there is lack of power to observe a stranger eye witnesses inthe scene of occurrence. But at the same time, it must be remembered that thepresence of a thick relative like a brother can never be lost sight of by theinjured in this case. We find that P.W.3 had not even chosen to go to thehospital along with his elder brother ( deceased) and sister-in-law (P.W.1),when they were taken by P.W.2 to the hospital. Therefore the inaction on the part of P.W.3 in not accompanying his injured brother and sister-in-law to thehospital, coupled with the omission of his name in Ex.P.13 as an eye witnesspresent at the scene of occurrence, does not totally rule out the possibilityof P.W.3 not being present at the scene of occurrence. His evidence beforecourt is also not convincing as to whether he could have witnessed theoccurrence at all. He would state in his evidence that the occurrence went onfor almost an hour and about 100 to 150 people gathered at the scene. P.W.1,in contrast, would state that the entire occurrence was over in ten minutes.In her evidence, she does not mention about the presence of a large body ofpeople at the scene of occurrence. P.W.2 is totally silent on both theaspects. Going by the overall materials noted above, we have a lingeringdoubt as to whether P.W.3 was present at the scene and witnessed the incidentitself. Therefore, we are inclined to give that benefit of doubt in favour ofthe accused. So, we hold that P.W.3 could not have been present at the sceneof occurrence at all and we have to necessarily eliminate his evidence fromconsideration.

10. Then, we examined the case of the prosecution that P.W.2 is alsoan eye witness to the occurrence. The fact remains established that P.W.2took the injured/P.W.1 and Mathivanan/since deceased to the hospital. Exs.P.6and P.7, the accident registers issued by P.W.7 for the deceased and P.W.1respectively do show that P.W.2 brought both of them to the hospital. P.W.7in his oral evidence would also state that P.W.2 brought P.W.1 and thedeceased before him. Therefore there cannot be any doubt that P.W.2accompanied Mathivanan/since deceased and P.W.1 to the hospital. But still,the question is whether he witnessed the occurrence or he came to the scene ofoccurrence later and then took the injured to the hospital? P.W.2 appears tobe related to P.W.1, the deceased and P.W.3. In Ex.P.13, it is not clearlymentioned that P.W.2 is an eye witness to the occurrence. What all is said inEx.P.13 is that, this incident is known to P.W.2 and Anbazhagan (notexamined). In our considered opinion, during the transit time namely, fromthe place of occurrence to the Government Hospital at Nagapattinam, there isevery possibility of both the injured telling P.W.2 about the occurrence andtherefore, when in Ex.P.13 it is stated that the occurrence is known to P.W.2and another, it can be read to mean that he knew it from the injured. Inother words, the wording in Ex.P.13 would be that P.W.2 and the other hadwitnessed the occurrence. We are strengthened to say this, since if reallyP.W.2 had witnessed the occurrence, then P.W.1 would not have failed tomention in her evidence that P.W.2 witnessed the occurrence. But on the otherhand, from a perusal of her entire evidence, we find that she no-wherementions the presence of P.W.2 anywhere near the scene. In other words, thereis total omission in her evidence about the presence of P.W.2 at the scene,either nearer or at a far off place, from where, he could have seen theoccurrence. We have already discarded the evidence of P.W.3 on the groundthat he could not be an eye witness. Even assuming for a moment withoutadmitting that he can also be treated as such, even then, we find that P.W.3also does not speak about the presence of P.W.2 at the scene of occurrence (Wehave applied our mind to the evidence of P.W.3 only for the limited purpose offinding out whether P.W.2 could have been present at the scene or not).Therefore, we have no hesitation at all to conclude once again that it wouldnot be safe to act upon the oral evidence of P.W.2 as an eye witness to the

11. This leaves the court with the oral evidence of P.W.1 and thedying declaration/Ex.P.13. P.W.1 is an injured witness. P.W.1 suffering aninjury in the incident is found mentioned in Ex.P.13. Therefore there cannotbe any doubt that the transaction in which Mathivanan came to sustain theinjuries, to which he succumbed later on, his wife (P.W.1) also had sustainedinjuries. Therefore even at this stage we conclude that P.W.1's presence atthe scene cannot be disputed at all. It is a well settled position in lawthat a man, making a statement in anticipation of his death, may not lie andnormally the statement made by him is accepted by the court in it's letter andspirit. It is also a well settled position in law that witnesses may lie butnot documents. Therefore it is our duty to find out whether the evidence ofP.W.1 is in accordance with the terms of Ex.P.13? In Ex.P.1 3, theinjured/Mathivanan/since deceased had attributed three overt acts to differentaccused as far as he is concerned. According to Ex.P.13, A1, withM.O.1/suluki, stabbed him on his right fore arm. A2, with a stick, attackedon the back side of his head and A3, with a stick, beat him on his right forearm. Therefore in Ex.P.13, three individual overt acts are attributed to therespective accused as referred to above and the seat of injury is alsocorrespondingly given. It may be noticed that in Ex.P.13 no overt act at allis attributed to A4 vis-a-vis the injured/Mathivanan/since deceased. The onlyovert act attributed to A4 in Ex.P.13 is that he attacked P.W.1 with M.O.1 onthe back side of her head, resulting in a bleeding injury and on her right andleft fore arm. Ex.P.8 is the accident register relating to P.W.1. It showsthat the injured has one injury in the occipital region and two injuries onthe left fore arm. Therefore, the overt acts attributed to A4 in Ex.P.13 moreor less gets support from Exs. P.7 and P.8 issued by P.W.7 to P.W.1 at thetime of examining her. Now, if we compare the overt acts attributed to thevarious accused in Ex.P.13 with the oral evidence of P.W.1, it is clear to ourmind that her evidence runs contra to the overt acts attributed to the variousaccused in Ex.P.13. She would state in her evidence as follows:

"A1, with a weapon like M.O.1, hit on her husband's head and twohands; A2, with a weapon like M.O.1, attacked on her husband's head and hands;A3 and A4, with sticks in their hands, hit on her husband's head."

These overt acts, spoken to by P.W.1, as already stated by us, are directly incontravention to the overt acts attributed by the injured/ Mathivanan/sincedeceased in Ex.P.13. Therefore, we are of the opinion that P.W.1 isdefinitely trying to improve the case before court, so that the entire familyof A1 could be brought before court and punished and they would be away fromthe family of P.W.1 for the rest of the time to come. Under thesecircumstances, we are not inclined to attach much importance to the oralevidence of P.W.1 as to the various overt acts she had attributed in herevidence to the various accused. In our opinion, the overt acts attributed tothe accused by P.W.1 before court, wherever it finds corroboration in Ex.P.13alone should be accepted and that too, the weapon stated to have been used bythe various accused in Ex.P.13 alone would prevail over the weapons stated tohave been used by the accused as spoken to by P.W.1 in her evidence. In herevidence P.W.1 would state that A2 attacked her husband with suluki on his head and hands. But in Ex.P.13 it is stated that A2 attacked Mathivanan/sincedeceased with a wooden log on his head. Going by the consistent fact namely,A2 attacked on the head of P.W.1's husband, we are inclined to hold that A2had only used a stick in causing a hurt on the head of her husband

(Mathivanan/since deceased). Her oral evidence before court that A1 alsoattacked her husband on his head and hands with a weapon like M.O.1 standscontradicted in Ex.P.13, in which, we find that A1 attacked with M.O.1 on theright fore arm of her husband and to this extent only, we accept the oralevidence of P.W.1. P.W.1, in her oral evidence would state that A3 and A4attacked her husband on his head with a stick. In Ex.P.13 it is foundmentioned that A3 attacked her husband on his right fore arm with a stick.There is no mention in Ex.P.13 that A3 attacked on the head of the victim. Totest the veracity of the oral evidence of P.W.1 about the overt actsattributed to all the accused vis-a-vis the deceased, we perused Ex.P.6, theaccident register as well as the post mortem certificate. Both the documentsshow that there is only one injury on the head of the victim in this case andthat injury consistently stands attributed to A2 alone. Therefore we are notinclined to believe the oral evidence of P.W.1 that A4 and A3 also attacked onher husband's head with a stick. The result of our discussion based on thecontents of Ex.P.13 and the oral evidence of P.W.1 is as follows:

"(a) A4, with a weapon like M.O.1, attacked P.W.1 on her head and herleft and right fore arm; (b) A2 attacked with a stick on the rear side head of the deceased inthis case; (c ) A1, with a weapon like M.O.1, stabbed on the right fore arm ofthe deceased; and (d) A3, with a stick, attacked on the right fore arm of the deceased."

Except to the above extent, we are not inclined to believe the prosecutioncase with reference to the other overt acts attributed by P.W.1 in her oralevidence.

12. The question that follows from our above conclusion is, what are the offences for which the various accused can be convicted? In other words,whether the conviction of A1 to A4 for the offence under section 302 read withsection 34 I.P.C and the conviction of A4 for the offence under section 324can be sustained? We will take up the conviction of A4 first. We havealready found that A4 had caused an injury on P.W.1. Her oral evidence is insupport of the prosecution case. Her oral evidence is corroborated by themedical evidence of P.W.7 and Exs.P.7 (accident register) and P.8 (woundcertificate). Though Ex.P.8 shows that P.W.1 had suffered a fracture, yet thetrial court had held that since X-Rays taken for that wound had not beenmarked, it was inclined to convict A4 only for the offence under section 324I.P.C. Since the State had not challenged that finding, we confirm theconviction of A4 given by the trial court for the offence under section 324I.P.C and sentenced to pay fine alone, carrying a default sentence.

13. Next, we go to the question of conviction of A1 to A4 for theoffence under section 302 read with section 34 I.P.C. In this context, theargument advanced by the learned senior counsel for the appellants that there

is total absence of medical evidence as to how the injured/Mathivanan/sincedeceased was treated from the date of his admission in the Government Hospitalat Nagapattinam till he ultimately breathed his last on 22.01.2000 in theGovernment Head Quarters Hospital at Thanjavur deserves acceptance, sinceadmittedly the connecting link of medical evidence is missing in this case.P.W.7 is the Doctor in the Government Hospital at Nagapattinam, who examinedMathivanan/since deceased at 4.40 p.m on 08.01.2000. His oral evidence showsthat all the injuries found by him on Mathivanan/since deceased are simple innature. Ex.P.6 is the accident register given by him. But in Ex.P.6 he hadmentioned the nature of injuries. Ex.P.6 shows that the injured was smellingalcohol. He would state that he had suggested transfer of Mathivanan/sincedeceased for better treatment to the Government Head Quarters Hospital atThanjavur. P.W.11 is the next Doctor examined in this case. He was working,during the relevant time, in the Government Medical College Hospital atThanjavur and at 2.0 0 p.m on 10.01.2000, on transfer from the GovernmentHospital at Nagapattinam, he admitted Mathivanan/since deceased in hishospital. He would state that as he found the patient unconscious, he tooksteps to take X-Rays and issued Ex.P.16, the accident register. He does notspeak about the treatment given by him when the patient was under his care andcaution. No other medical evidence, except that of P.W.9, is available beforethe injured breathed his last. At the risk of repetition, we state thatP.W.11 is totally silent as to what type of treatment was given by him toMathivanan/since deceased when he was in the Government Hospital at Thanjavur.P.W.9 in his evidence would state that he came to know immediately after themid-night of 21.01.200 0 and the morning of 22.01.2000 (to be precise 00.40hours) that the injured in this case is struggling for his life and thereforehe reached his ward and tried to save him but yet he failed. Ex.P.10 is thedeath intimation. This Doctor is also totally silent as to what type oftreatment was given to the injured in this case before he tried to save hislife. Even P.W.7 does not speak about the nature of the treatment given tothe injured/Mathivanan/since deceased when he was in the Government Hospitalat Nagapattinam. Medical case sheet also is not produced. Therefore, we areinclined to hold that the evidence of P.W.7, P.W.11 and P.W.9 do not disclosewhat type of treatment Mathivanan/since deceased had received at the hands ofthe Hospital Authorities namely, in the hospital at Nagapattinam and in thehospital at Thanjavur. Then, we have the evidence of the Doctor, who did postmortem. The Doctor is P.W.8. Ex.P.9 is the post mortem report given by him.In Ex.P.9, this Doctor had given the cause of death as due to "complicationsof multiple injuries". In his evidence in cross, he had answered what ismeant by "complications of multiple injuries" by stating "bjh[w[;W neha;kw;Wk; mj[[[ph;r;rp" corresponding to the English expression being "contagiousdisease and shock". Of course, after stating in his evidence in chief thatthe cause of death is due to the reason mentioned in Ex.P.9, P.W.9 went on toadd that external injury No.2 with it's corresponding injury Nos.7 and 8 aresufficient to cause death in the ordinary course of nature. This last pieceof evidence by P.W.9 about the fatal impact of injury No.2 with correspondinginjury Nos.7 and 8 is not found reflected in Ex.P.9. Therefore, to our mind,it appears to be an improvement regarding the cause of death. In thiscontext, we are inclined to refer to the judgment relied upon by the learnedsenior counsel for the petitioner namely, 2001-1-L.W.Crl.Pg.354 (Nammalwar Vs.State, etc.). In that case also the injured died after a lapse of time from

the date of the incident. The learned Judges held that the prosecution has aduty to examine all the Doctors, who treated the injured persons in all medicolegal cases and where they could not be secured, the case sheets can be markedthrough available Doctors, who can testify the actual treatment. In that casealso, the cause of death of the victim included complications following theinjury resulting in his death after several days. Exactly, that is the causehere as well. The learned Judges in that case, on analysing the medicalevidence, found that the medical evidence do not unerringly indicate that thecause of death was solely due to the injury inflicted. In the present case,we have noted that at the time of admission, Mathivanan was found to havesustained only simply injuries. Those injuries were found sutured at the timeof post mortem. Who had done the surgery and who had sutured those surgicalwounds, there is no evidence. No case sheet relating to the treatment givento the patient had been marked. Who are all the Doctors, who attended thepatient continuously from 08.01.2000 till he breathed his last on 22.01.2000,there is no evidence. The Doctors examined in this case do not speak aboutany treatment at all having been given to the injured while he was either inthe hospital at Nagapattinam or in the hospital at Thanjavur. Going back tothe judgment referred to above, finding fault with the prosecution in notexamining all the medical witnesses, the learned Judges converted theconviction from one under section 302 I.P.C into one under section 304-II.P.C. That judgment squarely applies to the case on hand. In this context,we are inclined to refer to the case law brought to our notice by the learnedAdditional Public Prosecutor namely, 1999 S.C. C.Crl.Pg.120. In that decidedcase also, death was a few days after the incident. But however, the SupremeCourt, in that case, found that the medical evidence disclosed that the deathwas caused by septicemia, which was due to head injury and the said injury wassufficient in the ordinary course of nature to cause death. In other words,in that case, the medical evidence shows the nature of the injury caused; thecomplications developed on that injury and ultimately the cause of death.Since that is lacking in the present case, we are of the most respectfulopinion that the said judgment relied upon by the learned Additional PublicProsecutor for the State may not apply to the case on hand.

14. We have held that A2 had caused the single injury on the head ofthe deceased in this case. Therefore, no other accused is responsible forthat overt act. Whether all the other accused would have shared the commonintention to attack the victim, is again another point that arises forconsideration. From a perusal of Ex.P.13, it is seen that the accused went tothe house of the victim only to question his claim for a right to property.The word used by Mathivanan/since deceased in Ex.P.13 is as follows:

"fz;za;ad; v';fs; tPl;Lf;F te;J cdf;F vJf;Flh brhj;J vd;W brhy;yp /////"

It's English translation means, "A1 came to our house and asking me as towhere do I get the property, stabbed me with M.O.1 in my right fore arm".Therefore, the idea of going to the house of the victim in this case is toquestion his claim or authority for a property and not with any definiteintention of killing him. If really, the intention at that time in the mindof the first accused (Kannaiyan) is to kill him (Mathivanan), then he wouldhave chosen a most vulnerable part of the anatomy of the victim in this case.

But instead, he is shown to have chosen a non-vulnerable part namely, rightfore arm, in causing the injury and that too, a simple injury. In otherwords, in our opinion, the visit to the house of the victim in this caseprobably appears to cause hurt to the victim and put fear in his mind, so thathe would not claim any property thereafter. In this context, the case of A1is as follows:

P.W.7 in his evidence in cross would admit that even at 3.45 p.m on08.01.2000, A1 in this case was admitted in the Government Hospital atNagapattinam as an inpatient for injuries stated to have been sustained by himat about 2.00 p.m on that day at the hands of two known persons by the use ofa stick. He admits Ex.D.1, the accident register given by him for A1. InEx.D.1, P.W.7 had noticed a contusion measuring 7 cm x 5 cm left dorsal parton A1. Ex.D.1 shows that A2 accompanied him to the hospital. P.W.7 admitsthat. P.W.7 also admitted that A1 could have sustained the injuries at thetime and in the manner alleged. P.W.10 is the Head Constable of theInvestigating Police Station during the relevant time. He admits Ex.D.2 asthe printed first information report prepared on the complaint given by A1 andit stands registered in Crime No.21/2000 and the deceased in this case is theaccused in that crime. The crime in the murder case, as could be seen fromEx.P.14, stands registered as Crime No.22/2000 on the same day namely,08.01.2000. P.W.10 would admit that he enquired both the crimes separatelyand he did not know what happened to the investigation done in CrimeNo.21/2000. But later on, he admits that during investigation in CrimeNo.21/2000, witnesses were examined and a report was filed as "mistake offact". He would also state that only the Sub-Inspector of Police knows as towhether the referred report was served on the accused in this case or not.The referred report is admittedly not exhibited in this case. After A1 hadcaused the attack, A2 and A3 also had attacked Mathivanan. No words ofexpression have been used by A2 and A3 while they attacked the victim.Therefore, this court is not in a position to hold that, either prior to theattack of the victim or during the time when A1 attacked the victim, they everhad any intention to do away with the victim in this case. But theirintention appears to be only to cause hurt to him and put fear in his mind.If that is so, then in our opinion, there is no question of sharing the commonintention by the accused and each individual must be considered for hisindividual acts only. If we consider the individual act of the variousaccused in this case, then A2 alone is held responsible for the injury causedby him on the head of the injured/Mathivanan/since deceased. A1 and A3 areguilty of causing hurt (simple hurt) on the right fore arm of Mathivanan/sincedeceased in this case, the former using a weapon like M.O.1 and the latterusing a stick. This means, all the accused are entitled to be acquitted ofthe offence under section 302 read with section 34 I.P.C. This does not meanthat all the accused should be allowed to escape unpunished and each one'scase has to be decided on the basis of their individual acts. A2 had causedthe injury on the head. For want of medical evidence as noted in the earlierpart of this judgment, he must be held to be aware or he must be held to haveknowledge that his act is likely to result in the death of the injured. We donot find any intention on his part to cause the death of the victim in thiscase. Therefore the act of A2 can be brought under section 304-II I.P.C. As far as the act of A1 and A3 are concerned, they areshown to have caused simple injuries to the victim in this case.

15. In view of our discussion as referred to above, the appeal standsdisposed of as hereunder:

"All the accused are acquitted of the offence under section 302 readwith section 34 I.P.C. Instead, A2 stands convicted for an offence undersection 304-II I.P.C., for which he would stand sentenced to undergo rigorousimprisonment for five years together with a fine of Rs.1,000/-, carrying adefault sentence of six months rigorous imprisonment. A1 and A3 are convictedunder section 324 I.P.C., for which, each one of them shall stand sentenced toundergo rigorous imprisonment for two years together with a fine of Rs.1,000/-each, carrying a default sentence of three months rigorous imprisonment. Thefine amount, if any, already paid shall be adjusted towards the fine amountimposed by this court now. A4's conviction for the offence under section 324I.P.C stands confirmed. A1 and A3 are shown to be in prison from the date ofthe judgment of the Court of Sessions namely, 22.11.2001, which means, theywould be completing three years on 22.11.2004 . Since they stand sentenced toundergo rigorous imprisonment only for a period of two years, the imprisonmentalready suffered by them is set off against the sentence imposed now.Therefore, A1, A3 and A4 are directed to be released forthwith.

VslIndex : Yes

To

1. The Principal Sessions Judge, Nagapattinam

2. The District Collector, Nagapattinam

3. The Director General of Police, Chennai

4. The Public Prosecutor, High Court, Madras

5. The Superintendent, Central Prison, Cuddalore

6. The Inspector of Police, Thalaignayar, Thiruthuraipoondi Taluk