Murugesan v. The State Rep By

BAIL SLIP The Appellants/ Accused namely 1. Murugesan, S/o.Chinnasamy 2.Sekar, S/o.Subramaniyam, 3.Satish Kumar S/o. Subramaniyam were directed to be released on bail as per order dated 21.06.2019 made in Crl.MP No.6761/2019 in Crl.A.No.293/2019 and subsequently cancelled by an order dated 07.04.2021 made in Crl.A.No.293/2019 on the file of this Court.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 03.12.2021.

CORAM

THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA Crl.A.No.293 of 2019

1. Murugesan

2. Sekar

3. Satishkumar ...Appellants/Accused 1to3 vs.

The State represented by, The Inspector of Police, Anuparpalayam Police Station, Tiruppur District.

(Crime No.981 of 2015)

...Respondent/Complainant

Prayer: Criminal Appeal filed under Section 374(2) of Criminal Code Procedure, to set aside the conviction and sentence passed by the learned II-Additional District cum Sessions Judge, Tiruppur made in Sessions Case No.156 of 2016, dated 30.01.2019. For Appellants :

Mr. John Sathyan for Mr.MA.P.Thangavel.

For Respondent :

Mr.S.Sugendran Govt. Advocate (Crl.Side)

J U D G M E N T

The Criminal Appeal seeking to set aside the conviction and sentence passed by the learned II Additional and Sessions Judge, Tirupur in S.C.No.156 of 2016, dated 30.01.2019 finding that the accused guilty for the offence under Section 304(ii) IPC and sentenced them to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2,000/- each and in default to undergo rigorous imprisonment for three months.

2. Brief facts of the prosecution case is as follows :- PW1/Nagajothi is the wife of victim/Senthil. PW2/Ganesan is younger brother of victim. PW3/Saravana Kumar is co-brother of the victim. On 27.09.2015, at about 8.00 p.m. PW2 had gone to the house of his brother Senthil and asked him to give the weighing machine to sell the same in order to settle his liability. The victim had insisted to retain weighing machine and there was a quarrel and altercation between brothers. Hearing the commotion, A1/Murugesan had questioned PW2 as to why he was shouting and had slapped him. Seeing that the victim had questioned the first accused as to why he had slapped his brother and had told A1 that it was a fight between brothers and they would settle the matter among themselves.

Pursuant to the wordy altercation, A1 had pushed the victim/Senthil and punched him on his stomach and thereafter, A2 and A3 have joined A1 and all the three had kicked the victim on his stomach repeatedly. PW3 who is the co-brother of the victim was also informed about the incident. On the very night on 27.09.2015, victim/Senthil was taken to Jacob hospital at 9.30.p.m., where he was examined by PW10/Dr.Suresh Kumar and later Senthil was referred to Saran Hospital. However, he went back home and on the next day, i.e., 28.09.2015, Senthil was taken to Saran Hospital at about 9.50a.m., where he was examined by PW5/Dr.Palanisamy and scan was taken, since the family members of the victim insisted to go to Government Hospital. PW5 had issued Ex.

P3/discharge certificate and had referred the victim to Coimbatore Government Medical College Hospital for getting a surgery done at the earliest.

3. On 28.09.2015, PW8/Kalimuthu, Head constable of the respondent police station received the information from Saran Hospital regarding the injury to Senthil. He had gone to the Saran Hospital and he came to know that victim/Senthil was shifted to Coimbatore Government Medical College Hospital. Thereafter, PW8 had reached Government Hospital at around 9.00p.m. and finding that Senthil was not in a position to speak and recorded the statement of PW1. PW8 returned to the police station at around 11.00p.m. and registered a case in Crime No.981 of 2015 for the offences punishable under Sections 294 (b), 324, 506(ii) IPC. PW9/Sub Inspector of Police of the

respondent police station took up the investigation and reached the scene of occurrence at 6.00a.m. on 29.09.2015 and prepared Observation Mahazar/Ex.P4 in the presence of PW6/Murthy and another, thereafter prepared rough sketch/Ex.P7 and examined PW2 and PW3 and recorded their statements under Section 161(3) Cr.PC. Once again, PW9 went to the hospital, since Senthil was not in a position to speak, he examined his wife and recorded her statement. Thereafter, on the same day, the accused on being identified by PW2, arrested the accused at about 12noon and brought them to the police station at about 12.30pm and thereafter remanded them to judicial custody. In the mean time, on 28.09.2015, PW11/Dr.Narayanamurthy and Doctors along with him attached to the Coimbatore Government Medical College Hospital performed surgery on Senthil.

Since the surgery was not successful, another surgery was performed to Senthil by PW11 on 20.10.2015 and further treatment was given. Despite treatment, Senthil died on 14.12.2015 at 10.30 p.m. On receipt of information about the death of Senthil, PW12/Jayachandran, Sub Inspector of Police who succeed PW9, deputed PW8 to receive death intimation from the hospital and took up the investigation and examined witnesses, as the witnesses reiterated the same statement, PW9 did not recorded any further statement from them. Thereafter, the offence was altered to one under Section 302 IPC and the altered FIR/Ex.P5 was despatched to Judicial Magistrate No.1, Tiruppur. PW14/Shanmugam Inspector of Police took up further investigation on 15.12.2015 and reached the Coimbatore Government Medical College Hospital at about 7.30p.m.

and conducted the inquest on the body of the deceased in the presence of Panchayatars and examined the witnesses. Ex.P9 is the inquest report. Thereafter, PW14 given a request to PW13 to conduct autopsy on the deceased Senthil. PW13/Doctor who conducted autopsy and opined that the deceased would appear to have died due to blunt injuries in the abdomen and its complications. Ex.P8 is the postmortem report. PW14 effected arrest of the accused on 17.12.2015 at 1.00 p.m. in the presence of the PW4/Shanmughavel and recorded the confession given by the A1. PW14 continued the investigation and examined the witnesses and recorded their statements and seized documents.

4. After completion of investigation, PW14 obtained opinion from the Deputy Director of Prosecution and laid final report against the accused on 12.12.2016 for the offence under Section 302 IPC. The final report was taken on file by the Judicial Magistrate I, Tirupur in P.R.C.No.13 of 2016 and on appearance of the accused copies were furnished to them under Section 207 Cr.PC. The Magistrate finding that the case was exclusively triable by the Court of Sessions and committed the case to the learned Principal District and Sessions Judge, Tiruppur and the case was taken up in S.C.No.156 of 2016 and made over to the Trial Court for trial. The accused when questioned denied the

charges and sought to be tried. The trial Court after hearing the accused and the prosecution framed charges against the accused for the offence under Section 302 IPC.

5. On the side of the prosecution, PW1 to PW14 were examined and Ex.P1 to Ex.P9 were marked. When the accused were questioned under Section 313 Cr.P.C, they denied the charges, further no witness were examined or documents were marked on the side of the accused.

6. The Trial Court after hearing the prosecution and the accused found them not guilty for the offence under Section 302 IPC, whereas found them guilty for the offence under Section 304 (ii) IPC and convicted and sentenced them as stated above. As against the judgment of conviction and sentence, the present appeal has been filed by the appellants/accused.

7. Assailing the judgment of conviction and sentence, Mr.John Sathyan, the learned counsel for the appellants would submit that at the outset the incident is alleged to have taken place on 27.09.2015 @ about 8.00pm and the victim breathed his last on 14.12.2015 @ 10.30pm, after a period of 78days. The occurrence had taken place during night hours and at that time of admission, no external injuries were found on the deceased, even as per the prosecution few minutes prior to the alleged occurrence there had been wordy quarrel and altercation between the victim/Senthil and his brother/PW2, with regard to returning of a weighing machine.

8. As per the evidence of PW1/wife of the deceased, PW2 had came to their house and had requested the victim/Senthil to hand over the weighing machine to sell and settle his liabilities. Since, the victim had refused to return the weighing machine, there had been a quarrel between them and since, they had raised their voice during quarrel, the accused who were stated to be neighbours are alleged to have intervened and during intervention, one of the accused is stated to have slapped PW2 and the victim had informed them, it was the fight between the brothers and they need not interfere and they should not have assaulted his brother and there had been a quarrel and altercation and the incident is alleged to have happened during that period.

It is the specific case of PW1 that she had left the house to a nearby shop, when her husband and PW2 were fighting and when she came back after 10minutes, the fight was continuing between them.

caused death of the victim/deceased.

9. The learned counsel for the appellants would further submit that the victim/deceased is stated to have sustained injuries on 27.09.2015 @ 8.30pm and he was referred to a nearby hospital and after initial treatment brought back home and thereafter on the next day on 28.09.2015 referred to a private hospital and from the private hospital he was referred to Coimbatore Government Medical College Hospital, where a surgery was performed on the victim on 28.09.2015, initially, the case was registered for the offence under Section 294(b), 324 and 506 (ii) IPC. The victim deceased was treated as inpatient and since the surgery performed on 28.09.2015 was not successful and there was complication another surgery was performed on 20.10.2015 and even thereafter, the victim continued to be in treatment for several days and he died on 14.12.

2015 due to the complications in surgery. Neither the scan report taken at hospital for first time nor the case sheets and the surgery notes regarding the surgery performed on the victim/deceased were marked by the prosecution. The prosecution has failed to prove by letting in cogent evidence that the injuries alleged to have been sustained by the victim was sufficient in the ordinary course of nature to cause death of the victim. Though, three appellants were stated to have involved in the occurrence, no specific evidence has been let in by the prosecution to prove which accused caused which injury. Though there were several houses available in the vicinity other than PW1 and PW2 no other independent witnesses had been examined to speak about the incident.

Further, PW9/Sub Inspector of Police is stated to have examined the victim while he was under treatment and no steps have been taken to mark his statement or record the dying declaration of the victim, thereby creating suspicion in the prosecution case.

10. The learned counsel would further submit that even as per the prosecution no weapon has been used and the incident is alleged to have happened during the sudden quarrel, when the accused neither had the intention nor the knowledge that their act would result in the death of the victim deceased and nothing has been elicited by the prosecution that such injuries were sufficient in ordinary course of nature to cause death. The appellants could utmost be held liable for the offence under Section 323 IPC and not otherwise, he would reiterate that the incident had happened on 27.09.2015 and the death was on 15.12.2015, due to the complications in surgery.

11. Per contra, Mr.Sugendran, learned Government Advocate (Crl.side) would submit that the appellants are neighbours of the deceased. On 27.09.2015 at 8.00pm there was a fight between PW2/brother of the victim and victim/Senthil. Since, there was

commotion and noise the accused who are neighbours had intervened and the first accused had warned them not to raise voice and had slapped PW2, the victim/deceased had questioned the accused stating that it was a dispute between brothers and they may not intervene in it. During fight, the first appellant had punched on the stomach of the victim/deceased and the other accused have assaulted the victim/deceased with hands and they have also assaulted PW2 with hands. When the victim/deceased had fallen down they have also kicked on his stomach, due to which the victim had sustained internal injuries. He was taken to a private hospital nearby for treatment and thereafter he was referred back to home.

On the next day he was taken to a private hospital were scan was taken and since, the victim/deceased did not have money to perform surgery in the private hospital, they have taken him to the Coimbatore Government Medical College Hospital were a surgery was performed on him and since there was complications in the surgery a second surgery was performed on him on 20.10.2015. Thereafter, the victim continued to be as an inpatient in the hospital and later he died on 14.12.2015, due to the complication in the surgery.

12. The learned Government Advocate would further submit that the victim/deceased had sustained internal injuries due to the assault by the accused and the Doctor who had conducted postmortem had deposed that the injury was sufficient in the ordinary course of nature to cause death. However, he would submit that scan report and the surgery notes and case sheets of the victim/deceased regarding the surgery were not marked by the prosecution.

13. Heard the rival submissions made on both sides and perused the materials available on record.

14. Now what is to be seen is whether the prosecution has proved the charges against the accused/appellant beyond all reasonable doubt. Whether the trial Court is right in finding the accused guilty for the offence under Section 304(ii) IPC.

15. While analysing the evidence on record, PW1 who is the wife of the victim/deceased, had deposed that on 27.09.2015 @ 8.00pm her husband and her brother in law (PW2) were discussing and PW2 was asking her husband to give him the weighing machine at that time, the first appellant/Murugesan had come to their house and questioning him why he was raising noise and assaulted (PW2) and at that time her husband had questioned him why he had assaulted his brother and the other two accused had assaulted her husband in the stomach and stamped him and thereafter the victim was taken to Jacob Hospital and they administered an injection to him and sent them. However, her husband complained of stomach pain and on the next day morning she had taken her

husband to another hospital and taken scan of her husband and the Doctors there had informed that he was serious and referred him to Coimbatore Government Medical College Hospital. The police had obtained her statement at Coimbatore Government Medical College Hospital and registered the case. On 14.12.2015, her husband passed away without responding to treatment. In her cross examination, she had stated that she is not aware of the time of quarrel between her husband and her brother in law. She had further deposed that she had left to a nearby shop and the fight continued between her husband and brother in law for 10minutes, till she returned back from the shop. She had stated that at the time of occurrence all the villagers had gathered there, however, she had denied the suggestions that her husband sustained injury during the fight between her husband and her brother in law/PW2.

16. PW2 is the brother of the victim/deceased he had deposed that on 27.09.2015 at 8.00pm he had gone to his brother's house to show his two wheeler, at that time, he had asked his brother to give the weighing machine to him to sell and settle his liabilities, his brother had refused and they were discussing and at that time, the first accused had intervened and questioned him as to why he was raising his voice and that he had told him that it was his brother's house and he was discussing with his brother. The first accused had slapped him and his brother had intervened and told him that it was a fight between brothers and he raised his hands against A1 and attempted to assault A1, at that time, A1 had pushed his brother and punched on his stomach and his brother had fallen down.

A2 and A3 nearby had rushed to the place and assaulted him and his brother and he intervened and the accused also pushed him. Hearing the noise, the neighbours had gathered there and the accused have gone away. Thereafter, he had taken his brother to Jacob hospital and they had administered an injection and sent his brother back. During night his brother had stomach pain and it was informed to him by his sister in law/PW1. On the next day, he had asked his sister in law to take him to Saran hospital and that they have taken X-ray and informed that his brother had sustained injury in his stomach and they have to perform a surgery and it will incur expenses. Since, he did not have money he had taken his brother to the Coimbatore Government Medical College Hospital. The police enquired him in the hospital and later on 14.12.

2015 his brother passed away. He has denied the suggestion during the cross examination, that his brother sustained injuries, during fight between him and his brother.

17. PW3 is the relative of the deceased and he is hearsay witness, he had spoken about having come to know about the incident and about admission of the victim in the hospital on

27.09.2015 and his death on 14.12.2015.

18. PW4 is the witness for arrest and confession of the accused. He had deposed on 17.12.2015, the police enquired the accused and they have confessed to the offence and that the confession was typed in a computer and that he and one Shanmugavel had signed as witnesses.

19. PW5 is the Doctor at Saran hospital, he had deposed that on 28.09.2015, the victim was brought to his hospital and that he was informed that the neighbours of the victim had assaulted him and that he was having stomach pain and vomiting sensation, on examination he found his stomach was bloated and that he was having pain and he had not excreted on that day. He was having BP 110/70 and that his heart beat was high. He had immediately scanned the victim and found blood clot near stomach and the spleen. He had further referred to take CT Scan and after taking CT Scan he gave an opinion that victim could have sustained injury in the Nemoperitonium and there could be tear of intestine. He had suggested for surgery, whereas, the attendants wanted him to be taken to Government Hospital and thereafter one Tamilselvan working in the hospital had given medical certificate/Ex.P3 and he does not know about the whereabouts of Dr.Tamilselvan. In his cross examination, he deposed that there is a possibility of sustaining such injury while falling down when running fast or driving a vehicle.

20. PW6 is the witnesses for the observation mahazar/Ex.P4, however, he had deposed that he was not aware of the contents of Ex.P4.

21. PW7 is the Grade II constable, he had deposed that on 15.12.2015, he had altered the case in Cr.No.981 of 2015 registered under Section 294(b), 324 & 506(ii) IPC to one under section 302 IPC and handed over the alteration report/EX.P5 through Express FIR to the Judicial Magistrate.

22. PW8 is the Head Constable in the respondent police station, he had deposed that on 28.09.2015, while he was on duty he received intimation from Saran hospital and gone to Saran hospital, there he was informed that the victim had been referred to Coimbatore Government Medical College Hospital and the he had gone to the hospital on the same day at 21.00hrs. At that time, the victim was unable to speak and thereby he recorded a statement from his wife/PW1 and came back to the police station at 23.00hrs and registered a case in Cr.No.981 of 2015 for the offence under Section 294(b), 334 and 506(ii) IPC and forwarded the original to the Judicial Magistrate and copies to the higher officials and handed over one copy to the Sub Inspector for investigation. Thereafter, after three months on

15.12.2015 at 1.00am, he received information that the victim succumbed to the injuries on 14.12.2015 at 22.45hrs and he went to the hospital at 3.00am and received the request given by the Inspector of police for postmortem and again went to the hospital and received the corpse at 10.15am and handed it over to the mortuary and after completion of postmortem handed over the body to the relatives of the deceased. The printed FIR is Ex.P6. In his cross examination, he had deposed that he had received intimation from the hospital only on 28.09.2015 and that PW1 had not stated about her presence during the occurrence in her first statement and that he had not obtained signature of PW1 in the FIR.

23. PW9 is the Sub Inspector of the respondent police station, he had deposed that he had received the FIR from PW8 and taken up the case for investigation on 29.09.2015 and went to the place of occurrence at 6.00am and prepared the observation mahazar and rough sketch/Ex.P7 in the presence of PW6 and other witnesses and thereafter he had examined PW2 and other witnesses, later he had gone to the Coimbatore Government Medical College Hospital and since the victim was unable to speak he had recorded the statement from PW1 and on the same day at 12.00hrs arrested the accused in the presence of the witnesses and they were remanded to judicial custody. In his cross examination, he had stated that he had examined the victim, while he was alive and that he has not stated anything about the presence of his wife/PW1 at the time of occurrence.

24. PW10/Dr.Suresh Jacob, Doctor at Jacob hospital had deposed that on 27.09.2015, the victim/Senthil was brought to his hospital at 9.30pm and he had been informed that he sustained injuries in the stomach during a fight. On examination, he had informed that the victim was having pain in the stomach and finding that he could have sustained injuries inside the stomach had advised him to nearby Saran hospital. He had further deposed that the police had not enquired him.

25. PW11 is a Senior Assistant Professor in the Surgery Department of Coimbatore Government Medical College Hospital, he had deposed that on 28.09.2015, the victim was referred to hospital for further treatment and the Doctors team in the emergency surgery department after examining him finding that he had sustained internal injuries in the stomach had performed emergency surgery in the stomach. As per the surgery notes, the victim had sustained an injury in the smaller intestine and there was a hole and the blood vessels were found to be damaged and bleeding and they had removed the decayed portion of the smaller intestine and rejoined it. After surgery he was given treatment and while he was under treatment, there was leak in the joined portions and thereby on 20.10.2015, they had

performed a second surgery. After second surgery, he was given continuous treatment, however his condition got deteriorated and that the victim had passed away on 14.12.2015 while he was under his treatment. He had issued certificate regarding his death and later body was taken for postmortem. In his cross examination, he has deposed that there is possibility of sustaining such injury while hitting a stone by fall from a vehicle and there is a chance for death also.

26. PW12 is the Sub Inspector of Police in the respondent police station, he had deposed that on 15.12.2015 at 1.00am he received intimation that the victim passed away and he had deputed PW8 to get the intimation and since PW9/I.O was on leave he had gone to the scene of occurrence and examined the witnesses and since they reiterated the same version he had recorded their statement and thereafter he had altered the section to one under Section 302(ii) IPC and forwarded the altered FIR to the Judicial Magistrate and he had handed over the file to the Inspector of Police along with alteration report/Ex.P5.

27. PW13 is the Assistant Professor in the Department of Forensic Medicine had performed autopsy on the body of the deceased on 15.12.2015 at 3.15pm and he had made the following notings :- Appearances found at post mortem : emaciated body of a male aged about 33years. Finger and toenails were pale. Bed sore noted over both gluteal region, back of both side chest and back of both elbow.

The following ante mortem injuries seen over the body:

1)Vertically placed surgical scar 13x2cm noted over upper abdomen, 4cm below the xiphi sternum.

on dissection of Thorax and Abdomen :- Both pleural cavities each contain about 500ml of straw colour fluid. Peritoneal cavity contains about 500ml of fluid blood. Sutured would 2x0.5cm noted over jejunum, 60cm distal from duodeno jejunal flexure. Sutured would 10x0.5cm noted over mesentery. Dens adhesions noted over small bowels loops and sutured would 3x0.5cm noted over small bowels. Both lungs covered with pus materials and cut section shows frothy secretions.

OTHER FINDINGS :

- Hyoid bone : Intact - Heart - all chambers contains about few cc of fluid blood

- Stomach contains about 50ml of brown colour fluid with unpleasant smell, mucosa pale.

- Small intestine contains about 10ml of bile stained fluid, with unpleasant smell, mucosa pale. - Liver, Spleen and Kidneys - cut section pale. - Brain : Edematous - Urinary bladder - empty.

- Viscera preserved and sent for chemical analaysis.

OPINION : The deceased would appear to have died of BLUNT INJURY ABDOMEN and his complications.

Thereafter, he had forwarded the viscera to chemical analysis and received the report and he had given postmortem certificate/Ex.P8. He had given an opinion that the deceased would have died due to blunt injury abdomen and its complications.

28. PW14/I.O. he had deposed that on 15.12.2015, while he was working as the Inspector of Police in the respondent police station PW12 had handed over the CD file after conducting initial investigation and on 15.12.2015 @ 7.00am he had conducted inquest in the presence of the witnesses and on the same day examined PW1, Govindammal, Nagavalli, Saravana Kumar, Balasubramani and PW2 and thereafter, prepared postmortem report/Ex.P9 and forwarded it to the Court and on the same day went to the scene of occurrence and examined one Pradeep, Murali, Moorthi and another Murali. On 17.12.2015 at 13.00hrs arrested the accused and they have confessed to the crime, the first accused had given a voluntary confession statement and it was recorded in the presence of PW4 and one Shanmugavel and sent the accused to judicial custody. On 21.09.

2016, recorded the statement of Doctor/PW13 and later examined PW11 and PW5 and PW10 (Doctors). Later examined the constables and the Sub Inspector of Police, after obtaining consent of the Deputy Zonal Director filed the charge sheet against the accused on 12.02.2016 for the offence under Section 302 IPC. In his cross examination he had deposed that PW2 did not informed him that he was present in the hospital till the death of his brother.

29. This Court bestowed its careful and anxious consideration to the evidence and materials available on record. Admittedly, in this case, the incident had occurred on 27.09.2015 at 8.00pm and the complaint was made to the respondent on the next day on 28.09.2015 at 23.00hrs. The victim has succumbed to the injuries on 14.12.205 at 10.30pm (i.e., after 78 days).

30. The case of the prosecution as per Ex.P6/complaint given by PW1 is that on 27.09.2015 her brother in law/PW2 had came to the house and asked her husband to give the weighing machine and her husband had refused to give it to him, due to which there was a fight between her husband and her brother in law/PW2.

At that time, A1 who was living in the opposite house had shouted at them saying why are they fighting and creating noise and slapped her brother in law and that her husband told him that it was fight between the brothers and why he had slapped his brother and there was a fight and at that time, two other neighbours A2 and A3 have rushed to the place and they have punched his stomach and kicked on his stomach and her husband had sat down holding his stomach and later she had taken him to Jacob hospital and after initial treatment had come back to home and on the next day her husband was having stomach pain and she had taken him to Saran hospital and the Doctor at Saran hospital after taking a Scan had informed her that there was a bleeding inside the stomach and referred him to Coimbatore Government Medical College Hospital.

31. Thereafter, as per PW11 a surgery had been performed on 28.09.2015 by a team of Doctors in the Emergency unit of Coimbatore Government Medical College Hospital, since there was complication in the initial surgery a subsequent surgery had been performed on 20.10.2015 and ultimately the victim had passed away on 14.12.2015 due to complications in surgery. Admittedly, in this case, neither the initial scan report nor the case sheets, surgery notes of the victim had been marked by the prosecution and no evidence had been let in by the prosecution to explain what was the nature of the surgery performed and the nature of the treatment given to the victim.

Though, PW9/Sub inspector of Police is stated to have recorded a statement from the victim when he was in the hospital during treatment, the statement has not been marked, thereby creating a suspicion in the case. Further, PW1 had stated that all the villagers have assembled at the scene of occurrence, whereas the prosecution has not examined any independent witnesses to speak about the incident. Further, even as per the postmortem report/Ex.P8 excepting a surgical scar 13x2cm noted over the upper abdomen, 4cm below xiphi sternum, no other injuries have been found. As per the evidence of PW1 and PW2, the incident had occurred during a quarrel and the witnesses have not spoken as if the accused had intention or knowledge that their act would cause death of the victim. However, in this case, the victim had died 78days after the occurrence.

The prosecution has failed to rule out that the victim did not died on account of complications in the surgery and the injuries inflicted by the accused was sufficient in the ordinary course of nature to cause death. The prosecution has also failed to establish which accused caused which injury.

been framed for the offence under Section 302 IPC and not under Section 302 r/w.34 IPC.

32. In this case, the prosecution has failed to prove its case for the offence under Section 304 (ii) IPC beyond all reasonable doubts. The trial Court had not considered the lacunas on the part of the prosecution side in proper perspective. However, in this case, there is some evidence that the accused have assaulted the victim deceased. This Court is of the opinion that at the most, the accused could be convicted for the offence under Section 323 IPC.

33. In the result, the criminal appeal stands partly allowed by setting aside the judgment dated 30.01.2019 made in SC.No.156 of 2016 on the file of the II Additional District and Sessions Judge, Tiruppur and the conviction of the appellants/accused for the offence punishable under Section 304 (ii) IPC is modified to offence punishable under Section 323 IPC. Consequently, the sentence of imprisonment is modified to undergo rigorous imprisonment for 325 day. It is stated that the accused are now in prison and the period of sentence already undergone by them shall be set off under Section 428 Cr.PC. Sd/- Assistant Registrar (CS-II) //True Copy// Sub Assistant Registrar tsh To 1.The II Additional District cum Sessions Judge, Tiruppur.

2.-do- through The Principle Sessions Judge, Tiruppur.

3.The Judicial Magistrate No.1, Tiruppur.

4.The Chief Judicial Magistrate, Tiruppur (For Information) 5.The Superintendent, Central Prison, Coimbatore.

6.The Inspector of Police, Anuparpalayam Police Station, Tiruppur District.

7.The Public Prosecutor, High Court of Madras.

Copy to:

The Section Officer, Criminal Side Record, High Court, Madras.

+1cc to Mr.Ma.P.Thangavel, Advocate SR. No.64165 Crl.A.No.293 of 2019 NR (CO) PR (15/02/2022)