Full Judgment
PRAYER
Criminal Appeal is filed by the appellants under Section 374(2) of the Criminal Procedure Code, against the judgment of the Additional Sessions Judge(Fast Track Court), Dindigul, Dindigul District in S.C.No.107/2004, dated 11th February 2005.
JUDGMENT
1. The present Criminal Appeal has been filed by the appellants/accused against the conviction and sentence passed by the Additional Sessions Judge(Fast Track Court), Dindigul, Dindigul District, dated 11th February 2005 made in S.C.No.107/2004, convicting the accused 1 and 2 for the offence under Section 304(2) I.P.C. and sentencing each of them to undergo rigorous imprisonment for a period of three years and directed to pay a sum of Rs.25,000/-(Rupees Twenty Five Thousand Only) jointly as compensation to the wife and children of the deceased, in default each of them to undergo imprisonment for a period of two years imprisonment.
2. The facts of the case is that when the deceased was playing with marbles along with two others, at that time the accused prevented and taken the marbles and refused to give and due to that quarrel, the accused attacked the deceased on the face, chest and abdomen by using their right leg and the deceased became unconscious. Thereafter, he was taken to the Nilakottai Government Hospital. P.W.8 is the Doctor, who gave treatment to the deceased in the hospital. Thereafter, P.W.1-the wife of the deceased gave complaint before the police which is marked as Ex.P.1. On receiving the information from the Government Hospital and on receiving the complaint from P.W.1, P.W.11-the Sub- Inspector of Police went to the spot at 05.45p.m. and investigated the matter and Cr.No.519 of 2002 has been registered in the printed form of First Information Report. Thereafter he sent a copy of F.I.R. to his Superiors. Thereafter he started the investigation and examined the eye-witnesses P.W.2 and P.W.3. P.W.6, who is also yet another eye-witness turned hostile. Thereafter the accused were arrested by P.W.13-the Investigating Officer and the accused gave confession by producing the marbles and it was recorded in the presence of P.W.5 and thereafter, the father of the accused was also examined as P.W.6. P.W.7 is the Observation Mahazar witness. P.W.8 is the Doctor, who gave treatment to the deceased and after 30 minutes, the deceased died. The body of the deceased was sent to postmortem and P.W.9 is the Doctor, who conducted autopsy and the intestine of the deceased had been taken and sent for chemical analysis. P.W.11, the Sub-Inspector of Police registered the First Information Report. P.W.12 is the Scientific Assistant. P.W.13 is the Investigating Officer and after investigation, he laid a charge sheet against the accused under Sections 341 and 302 I.P.C.
3. Taking cognizance of the offence, it has been taken on file by way of S.C.No.107 of 2004 before the learned Additional Sessions Judge,(Fast Track Court), Dindigul, Dindigul District.
4. During trial, the prosecution, in order to prove its case beyond reasonable doubt, has examined P.W.1 to P.W.13 and marked Exs.P.1 to P.18. and M.Os.1 to 6. The trial Court, after considering the oral and documentary evidence, has convicted the accused 1 and 2 for the offence under Section 304(2) I.P.C. and sentencing each of them to undergo rigorous imprisonment for a period of three years and directed to pay jointly a sum of Rs.25,000/-(Rupees Twenty Five Thousand Only) as compensation to the wife and children of the deceased, in default each of them to undergo two years imprisonment. Against which, the present Criminal Appeal has been filed by the appellants/accused.
5. The vehement contention of the learned Counsel for the appellants/accused is that on 29.09.2002 at about 01.45p.m., while they were playing, the accused attacked the deceased. But according to the case of the prosecution, the accused attacked the deceased only by using hands and legs, which would not cause death to the deceased. Further, the scientific report would indicate that the death is due to different reasons. Hence, he prayed that the present Criminal Appeal has to be allowed.
6. The learned Additional Public Prosecutor appearing for the respondent contended that the eye-witnesses have been examined to speak about the occurrence and the offence against the accused has been proved and hence he prayed that the appeal has to be dismissed by confirming the sentence and conviction passed by the trial Court.
7. Heard the learned Counsel for the appellants/accused and the learned Additional Public Prosecutor appearing for the respondent and perused the materials available on record.
8. As per the evidence of the prosecution case on 29.09.2002 at about 01.45p.m, the deceased was playing marbles along with two others and at that time, he objected it and the accused caught hold of the deceased and they pushed him and attacked him on the right leg. Further it is the case of the prosecution, due to the kick, it had caused severe injuries on the neck, chest, hip and abdomen of the deceased and he died and hence, the offence against the accused has been proved. Immediately, after the occurrence, some of the nearby persons took the deceased to the house of P.W.1 and thereafter, P.W.1 took the deceased to the Government Hospital, Palayamkottai. P.W.8 is the Doctor, who gave treatment in the hospital and who would state that the patient was admitted by his wife at about 02.00p.m. and at that time, the patient was unconscious and he has categorically stated that no external injury on the body of the patient and thereafter, she gave treatment and after 30 minutes, the patient died.
9. The contention raised by the learned Counsel for the appellants/accused is that there is no external injury on the body of the deceased. According to the case of the prosecution, because of the kick made by the accused on the abdomen of the deceased must have been caused death, whereas in the evidence of P.W.12 as well as in the scientific report, the opinions are different. From the perusal of the evidence of P.W.8, who is the Doctor admitted and treated the patient and P.W.9, who is the Doctor conducted the postmortem, in their evidence, even though P.W.8 would say in Ex.P.10-the Accident Register that no external injury has been noticed, but in the postmortem report which is marked as Ex.P.7, P.W.9 has mentioned about the four simple injuries, but in the abdomen, he has noticed that cyanide equivalent to 182milligrams of pottassium cyanide and 3392 milligrams of ethyl alcohol and further the intestine contains 224 milligrams of ethyl alcohol, but not cyanide. The same things have been notified in the scientific report, which is marked as Ex.P.8. Therefore, the deceased must have taken the spurious liquor, prior to the occurrence has been established and that liquor contains very spurious one, which is equivalent to cyanide. P.W.8, the Doctor has also stated that she has no idea about the taste of cyanide and if one has taken the cyanide, the death must be intensely happened. Further from the perusal of the postmortem certificate, it is seen that the blood vessels have been bursted and due to that, there is a haemorrhage on the head as well as on the neck portion and in the kidney portion and the lungs became pale. Therefore, from this it is very clear that the cause of the death is only because of cyanide and not because of the simple injuries sustained by the deceased at the time of scuffle. Therefore, this aspect has not been properly appreciated by the trial Court, even though the defence has elicited that these cyanide and equivalent spurious material will cause death to the consumer. Even though it has been cross-examined on that aspect before the Doctor, the trial Court has not properly appreciated. Further from the perusal of the postmortem certificate, it is seen that all the blood vessels have been bursted and there is a leakage of blood and the lungs became pale, only because of the spurious liquor which contains heavy poisonous substance. Therefore, I am of the view that the death is due to consuming of spurious liquor prior to the occurrence by the deceased, for which the accused are not responsible. Therefore, they are not bound to make any payment towards compensation, since the deceased only invited the death by consuming poisonous liquor and for that the accused are not liable. Therefore, I am of the view that the conviction and compensation awarded by the trial Court has to be set aside.
11. In fine, the Criminal Appeal is allowed and the conviction and sentence imposed against the accused for the offence under Section 304(2) I.P.C. and the compensation of Rs.25,000/-(Rupees Twenty Five Thousand only) vide judgment passed in S.C.NO.107 of 2004 dated 11th February 2005 by the learned Additional Sessions Judge(Fast Track Court), Dindigul, Dindigul District is set aside and the appellants/ accused are acquitted of the charges levelled against them and the fine amount paid, if any, shall be ordered to be refunded to the appellants/accused. The bail bonds shall stand cancelled.