DEVENDIRAN Vs. STATE

JUDGEMENT

(1.) THE appellants are A1 and A2 in S.C.No.83/1999 on the file of the Court of Sessions, Villupuram. THEy were tried for the following offences: A1 : Sec.324 I.P.C for having caused injury on P.W.1 A2 : Sec.323 I.P.C for having caused injury on P.W.1 A1 : Sec.323 I.P.C for having caused injury on P.W.2 A1&2 : Sec.302 r/w section 34 I.P.C for having caused the death of Ayyavu. THE learned Sessions Judge at the end of the trial found the accused guilty of all the offences referred to above and sentenced A1 to undergo rigorous imprisonment for one year, six months rigorous imprisonment and imprisonment for life for offences under sections 324, 323 and 302 read with section 34 I.P.C respectively. A2 was sentenced to undergo imprisonment for life for the offence under section 302 read with section 34 I.P.C and no separate sentence was imposed on A2 for the offence under section 323 I.P.C. It is the said judgment of conviction that is in challenge in this appeal. Heard the respective learned counsel appearing for the accused and the learned Government Advocate appearing for the State.

(2.) THE case of the prosecution is that, at about 6.00 p.m on 24.10.1998 A1 abusing P.W.1 filthily, asked him to come out of the house. During the course of the same transaction, on P.W.1 coming out of the house, A1 attacked him with a knife in his hand on his face and forehead, which was followed by A2 causing a simple injury with a stick on the back of P.W.1. P.W.2 was also attacked by A1 causing simple injuries on her. In the course of the same transaction, A2 with a stick attacked Ayyavu/since deceased on the back side of his head and then on the body twice or thrice, resulting in his death later on and A2 had shared the common intention with A1 at that time. To substantiate their case, the prosecution had examined two witnesses namely, P.Ws.1 and 2 as eye witnesses to the occurrence and both of them are injured eye witnesses. P.W.1 is the son of the deceased and P.W.2 is the daughter-in-law of the deceased. According to P.W.1, his wife, picking up a quarrel with him, left his company; he made several attempts personally as well as through panchayat to get his wife back but failed; he issued a lawyer's notice to his wife; even for that his wife did not respond and therefore he decided to marry again; they were looking out for a bride as a second wife for P.W.1 and his estranged wife, setting up her henchmen, attacked him and the deceased. A1 was having a "Koduval", with which he attacked on his nose and forehead. A2 attacked Ayyavu with a stick. A1 also attacked Ayyavu with a stick. P.W.2, who is the daughter-in-law of the deceased, stepped in and she was also attacked by A1 and A2. Ex.P.1 is the complaint given by him when he was examined in the hospital by the police. P.W.2 had also given evidence regarding the attack on P.W.1 as well as on herself. Her evidence is in total corroboration to the oral evidence of P.W.1 about A1 and A2 attacking the deceased on his head with a stick. P.W.6 is the Casualty Medical Officer in the Government Hospital at Gingee. At 8.10 a.m on 24.10.1998, P.W.1 appeared before him for treatment. He examined him and found on him simple injuries. Ex.P.4 is the accident register issued by him for P.W.1. He also examined P.W.2 on the same day, who complained of pain on both sides of the hip and back. He issued Ex.P.5/accident register. Ayyavu/since deceased also appeared before him and informed that he was attacked with stick and knife and complained of pain on the back of his head. He also complained of pain in both the ears as well as the lower part of the spinal cord. He admitted Ayyavu as an inpatient in the hospital and referred him on 26.10.1998 for better treatment to the Jipmer Hospital at Pondicherry. Ex.P.6 is the accident register given by P.W.6 to Ayyavu. THE symptoms as noted in Ex.P.6 are as hereunder:

(3.) WHEN questioned in cross examination, P.W.1 would state that his father/since deceased was involved in a road traffic accident about 15 years before. In that accident, the cycle in which his father was going, collided with a motor cycle and his father sustained injuries. It is his further admission that Ayyavu was taken to Puthur thrice for fracture treatment. WHEN P.W.1 admitted that his father met with an accident, which he says was about 15 years before, he should have produced the records relating to the said accident and established that the accident was in fact 15 years before. The suggestion put to him that in a quarrel in the village, the witnesses and the deceased came to be attacked, was denied by him as false. Though P.W.1 would deny the suggestion that his father could not even walk inside the house without the help of a supporting stick, P.W.2/his wife would admit that her father-in-law used to walk only with the support of a stick. The suggestion put to P.W.2 that her father-in-law/since deceased came to sustain injuries in a road traffic accident, was denied by her. Therefore on this aspect, her evidence is at variance with the oral evidence of P.W.1. P.W.1 had not produced any document to show what exactly is the nature of injuries stated to have been sustained by Ayyavu/since deceased in the road traffic accident. Therefore the possibility of the deceased suffering internal head injuries even at that time cannot be totally ruled out, especially taking into account the nature of the accident referred to earlier. WHEN Medical Jurisprudence do not totally rule out any injury sustained long before, if unattended to and not treated, giving room for complication in the latter part of the life, in our considered opinion, a duty is cast upon the prosecution to establish beyond doubt that in the said road traffic accident, assuming it took place 15 years before, Ayyavu, except suffering fracture, had not sustained any other injury. On the facts noted above, we have no hesitation at all in holding that the prosecution in this case must establish by medical evidence, both oral and documentary, that Ayyavu died only due to the injuries shown to have been sustained by him on 24.10.1998 at the hands of the accused. It is all the more so when P.W.6 did not notice any external injuries on the head of Ayyavu at the time of his examination. In Ex.P.6 also no external injuries were noted. Under these circumstances, we have no hesitation in setting aside the conviction of A1 and A2 for the offence under section 302 read with section 34 I.P.C, though the medical evidence shows that the deceased died due to head injuries. In other words, in the absence of any evidence to show that the injuries stated to have been caused by A1 and A2 on Ayyavu on 24.10.1998 are the injuries, which are responsible for the resultant internal injuries leading to his death, the conviction of A1 and A2 for the offence under section 302 read with section 34 I.P.C cannot be legally sustained.