Madras High Court
Rm. Arun Swaminathan vs The Principal Secretary To The ... on 28 September, 2020
Bench: N. Kirubakaran, S.S. Sundar
W.P.(MD).No.78 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.09.2020
CORAM
THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN
AND
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
W.P.(MD) No. 78 of 2019
and
W.M.P.(MD) No.7865 of 2019
RM. Arun Swaminathan ..Petitioner
Vs.
1. The Principal Secretary to the Government,
Health and Family Welfare Department,
Government of Tamil Nadu, Chennai.
2. The Director of Medical Education,
156, Poonamallee High Road,
New Bupathy Nagar, Chetpet,
Chennai 600 031.
3. The Directorate of Medical and Rural
Health and Services,
(DMS), 359, Anna Salai, Teynampet,
Chennai 600 006.
4. The Dean,
The Government Rajaji Medical College
Hospital, Madurai.
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W.P.(MD).No.78 of 2019
(R4 is suo motu impleaded vide order dated
05.03.2019) ..Respondents
Prayer: Petition under Article 226 of the Constitution of India praying for
issue of a Writ of Mandamus directing the respondents to (a) strictly follow the
Tamil Nadu Medical Code while conducting autopsies (b) to implement
videographing of all autopsies across the State in order to avoid issues and re-
postmortems and the same videograph shall be sent to the jurisdictional
Magistrates (c) the postmortem certificates shall be sent to the Jurisdictional
Magistrates on the same day of the post-mortem as stipulated in Article 621 of
the Tamil Nadu Medical Code (d) to appoint the Scientific Officers in the
Medical Colleges to enable to conduct fair and proper autopsies and (e) to
adhere the directions given by the Hon’ble High Court in Criminal O.P. NO.
12582 of 2007 dated 16.02.2008 in letter and spirit.
For Petitioner :: Party in person
For Respondents :: Mr. Chellapandian,
Additional Advocate General assisted by
Mr.M.A. Muthukaruppan,
Additional Government Pleader
For R1 to R4
Mr.T. Lajapathi Roy for Petitioner in
W.M.P.(MD) No.7865 of 2019
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W.P.(MD).No.78 of 2019
ORDER
(Order of the Court was made by N. KIRUBAKARAN,J.) This Public Interest Litigation has been filed by a practising Advocate before this Court seeking issue of directions with regard to conducting of autopsies.
2.The petitioner states that there is a huge shortfall of qualified Forensic Medical Experts. They are available only in Medical Colleges and not available in any of the Government Hospitals resulting in conducting of post-mortems without following the procedure as contemplated in Tamil Nadu Medical Code. The Medical College Hospitals are coming under the purview of Director of Medical Education and other Government Hospitals are coming under the Director of Medical Services. According to the petitioner, about a lakh of post- mortems are being done every year in the Government Hospitals. Due to shortfall of qualified staff, various shortfalls/lacunas are found in the procedure followed in conducting post-mortems. There is no transparency apart from lack of infrastructure for performing post-mortems. Dissection kits are not used for conducting autopsies and according to the petitioner, hammer and other tools are used.
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3.The petitioner contends that as per Article 621 of Tamil Nadu Medical Code, post-mortem report has to be forwarded on the same day to the Magistrate concerned and the Article is followed in breach on several occasions. Since Article 621 is not followed, innocent persons are affected.
4.One of the main contentions of the petitioner is that Medical Officers simply sign the post-mortem reports without even coming near the autopsy table. They usually sign in pre-drafted certificates on the same day, once in a week or on Monday. Usually, they cut and paste the post-mortem certificates without any changes, except name, age and Police Station, stating the same heart rate, volume of fluid in stomach and identically, the same identification marks. In none of the post-mortem certificates, time of completion of post- mortem is indicated. All the post-mortem certificates do not mention about the manner of death, which must be stated. Even the format prescribed by the NHRC is not being followed by Directorate of Medical Services or Directorate of Medical Education. Out of 115 registers and documents to be maintained by Medical Colleges relating to post-mortem, only six or seven registers are being used. Contrary to the Rules, Lab Technicians from DME are used and they are http://www.judis.nic.in 4/73 W.P.(MD).No.78 of 2019 not trained in Forensic Science. As per Rules, Lab Technicians must come from Forensic Science Department (Home).
5.The petitioner submits that a Scientific officer has a key role to perform during autopsies. A Scientific Officer has to assist the Medical Officer during all medico-legal autopsies, medico-legal bone cases, and age estimation by X- rays. He has to find out the manner of death and assist the Medical Officer apart from acting as Liaison Officer to Police and public on official matters. Though there are about 30 Medical Colleges in Tamil Nadu, there are only three Scientific Officers working in Chengleput, Stanley Hospital, Chennai and Madurai. Without Scientific Officers, post-mortems are carried out by Attendants/Sweepers/Scavengers, who have no knowledge or education about autopsies. In most of the cases, Medical Officers are not indicating the manner of death in their respective post-mortem certificates. Being Graduates of Criminology/Forensic Science, Scientific Officers are well aware about the scene of occurrence and the manner of death. However, Scientific Officers are deliberately omitted by the Forensic Science Officers during post-mortems. http://www.judis.nic.in 5/73 W.P.(MD).No.78 of 2019
6.This Court, in Crl.O.P. No. 12582 of 2007, by order dated 16.02.2008, gave a number of directions in order to provide necessary and basic things in Forensic Department in order to sustain Criminal Justice Delivery System. However, the said directions have not been implemented till date. The Honourable Supreme Court gave a number of guidelines in the matter of investigating Police encounters, custodial deaths, as a standard procedure for effective independent investigation. One of the foremost important guideline is that post-mortems should be videographed. If videograph of post-mortem is done, later issues arising therefrom, malpractices, re-post-mortems and delay in adjudications could be avoided. Though the petitioner sought for information with regard to the compliance of guidelines issued by this Court, in Crl.O.P. No.12582/2007 and the number of post-mortems conducted from January, 2011 to December, 2016 in all the Medical Colleges in the State, he was denied information stating that there is no provision under the RTI Act in 2005. The petitioner, in crux, would submit that autopsies are not done as per the procedure and there are several irregularities committed during autopsies, apart from lack of transparency. Therefore, he has approached this Court. http://www.judis.nic.in 6/73 W.P.(MD).No.78 of 2019
7.According to the petitioner, the Biometric system of attendance has been introduced from the year 2012 onwards. However, it has not been acted upon. The biometric system is best for attendance and also for recording the number of working days of the Government Servants and for considering the number of holidays. In spite of introduction of biometric system, it is not seriously followed. Salary is not paid as per the biometric attendance. Even if full attendance is not recorded, full salary is being paid. Hence, biometric system of attendance has to be scrupulously followed.
8.The 2nd respondent has filed a counter affidavit on his behalf as well as on behalf of respondents 1 and 3 denying the allegations made in the writ petition stating that the allegations are sweeping and generalised. The Forensic Medical Experts are available only in Medical College Hospitals as they are required to teach Forensic Medicine subject to medical students. Post-mortems are carried out as per procedure. In 2018, about 55,761 post-mortems were done in the State and not one lakh as stated by the petitioner. It is stated that at least one Forensic Medical Expert is available in all Medical Colleges and the Government is taking necessary action to increase the number of Forensic Medical Experts. As per Article 621 of Tamil Nadu Medical Code, post-mortem http://www.judis.nic.in 7/73 W.P.(MD).No.78 of 2019 certificates are usually despatched to the jurisdictional Magistrate on the same day and sometimes, delay is caused due to increase in the number of post- mortems to be done. There is no complaint from Judicial Officers or from the Police Department in this regard. The allegation that Medical Officers simply sign the post-mortem certificates without coming to the autopsy table are all false and resorting to cut and paste method is denied.
9.The Forensic Medical Experts have to undergo a lot of problems while conducting post-mortems as they are sometimes required to conduct post- mortem on a highly decomposed, mutilated, disfigured and defaced bodies. The Forensic Medical Experts have to conduct post-mortem on dead bodies which are swarming with maggots and harmful bacteria and they are performing post- mortems in such a dire and repulsive situation. The very act done during post- mortem is noted down and measurements and other details are scrupulously entered. The duration of post-mortem varies from 1 to 3 hours depending upon each case. The cause of death is especially mentioned in all the post-mortem certificates and Forensic Medical Experts can give only information regarding cause of death and they are not competent persons to give any information regarding the manner of death. Lab Technicians are recruited by the Medical http://www.judis.nic.in 8/73 W.P.(MD).No.78 of 2019 Recruitment Board and they are utilised in the Forensic Department after giving necessary training in forensic aspects.
10.The allegation that post-mortems are actually carried out by Attendants/Sweepers/Scavengers is not correct. It is, in fact, a collective work and the Forensic Doctor is the leader of the team consisting of well-experienced and abled 4 to 6 persons like technicians, mortuary attendants and sanitary workers in the practical aspects of post-mortem. Their assistance can, by no means, be underestimated. There is no necessity for the presence of Scientific Officer as alleged by the petitioner. The duty of Scientific Officer is only to assist the Forensic Medical Officer and they do not have any independent or exclusive role to play in the post-mortems. The Scientific Officers never studied any Science and they are having M.A. (Criminology) Degree only. They do not have any knowledge of anatomy, physiology, bio-chemistry, microbiology, pathology, Medicine, surgical procedures, etc. They do not have expertise, skill or knowledge to make any opinion or decision regarding cause of death and other intricacies of a post-mortem. They are only peripheral and they do not have any say in conducting post-mortems. Further, it is stated that all earnest steps are taken to implement the guidelines given by this Court in http://www.judis.nic.in 9/73 W.P.(MD).No.78 of 2019 Crl.O.P. NO. 12582/2007 and due to paucity of funds and some other practical difficulties, some of the guidelines are still to be implemented
11.Regarding encounters and custodial deaths, the guidelines and directions given by the Honourable Supreme Court in the case of People’s Union for Civil Liberties V. State of Maharashtra reported in 2011 10 SCC 635 are being followed. Only in those cases, post-mortems are videographed and preserved. There is no necessity to videograph each and every post-mortem and preserve the same as it would be highly cumbersome. The videographing of autopsy would affect the outcome of autopsy. The presence of a videographer, who is totally an outsider, would hamper the process of autopsy. There is no basic infrastructure to videograph all autopsies.
Stating all the above contentions, the respondents seek to dismiss the writ petition.
12.The Tamil Nadu Government Doctors Association has filed an impleading application in W.M.P. (MD) NO. 7865/2019 to implead them as a respondent. They stated that unnecessary allegations are being made against http://www.judis.nic.in 10/73 W.P.(MD).No.78 of 2019 Doctors contrary to facts questioning the entire medical fraternity, their integrity and morality.
13.Heard Mr.RM.Arun Swaminathan, petitioner in person, Mr.Chellapandian learned Additional Advocate General, assisted by Mr.M.A. Muthukaruppan, learned Additional Government Pleader for respondents 1 to 3 and Mr.T.Lajapathi Roy, learned counsel appearing for the impleading petitioners.
14.The writ petition is not an adverse litigation. It is only a Public Interest Litigation. The petitioner pointed out certain deficiencies and lacuna and even irregularities while conducting post-mortems.
15.While admitting the writ petition on 03.01.2019, previous Division Bench perused a series of post-mortem certificates produced by the petitioner to contend that autopsies are conducted in a mechanical manner and certificates are issued with very same identification marks and findings. Paragraph No. 2 of the said order reads as follows:
“According to the petitioner, autopsies are conducted in a mechanical manner by the concerned officers of the Forensic Medicine. To make the position clear, the petitioner has produced a string of post-mortem certificates in respect of different people. The post-mortem certificate contains very same identification marks in http://www.judis.nic.in 11/73 W.P.(MD).No.78 of 2019 respect of different people. There are other similarities also with respect to the certificates. The petitioner, is therefore, prima facie, correct in his contention that autopsies were done in a very mechanical manner without even taking note of the actual identification of the concerned persons. We are, therefore, of the view that the issue requires consideration.” The post-mortem certificate is very important to decide the cause of death, the injuries found on the body and whether any poisoning is there or not.
It is very important for criminal justice delivery system. The evidence of doctors based on post-mortem certificates play a vital role in deciding criminal cases, especially murder cases, suicides and assaults. The Courts usually take the Doctors’ opinion/evidence as gospel truth as they are the best persons or experts in the field and based on their evidence only, the cases are decided. The importance of post-mortem reports as well as medical evidence deposed by the medical experts are proved by the following cases:
(a)In Kapil Deo Mandal V. State of Bihar reported in 2008 16 SCC 99 ::2010 4 SCC (Crl) 203, the Hon’ble Supreme Court acquitted the accused/appellant giving the benefit of doubt as the medical evidence completely rules out the prosecution version of injuries being caused by firearms coupled with the fact that no evidence has been produced by the prosecution of any pellet or bullet http://www.judis.nic.in 12/73 W.P.(MD).No.78 of 2019 being recovered from the place of incident or from the body of the deceased in the post-mortem. Paragraph 27 of the judgment is extracted as follows:
"27. In the present case, the medical evidence is to the effect that there were no firearm injuries on the body of the deceased, whereas the eye-witnesses' version is that the accused-appellants were carrying firearms and the injuries were caused by the firearms. In such a situation and circumstance, the medical evidence will assume importance while appreciating the evidence led by the prosecution, by the court and will have priority over the ocular version and can be used to repel the testimony of the eye-witnesses as it goes to the root of the matter having an effect to repel conclusively the eye- witnesses' version to be true. The medical evidence when specifically rules out the injury claimed to have been inflicted as per the eye- witnesses' version, then the court can draw adverse inference to the effect that the prosecution version as being put forth before the court, is not trustworthy. In the present case, the medical evidence completely rules out the prosecution version of the injuries being caused by firearms, coupled with the fact that no evidence has been produced by the prosecution of any pellet or bullet being recovered from the place of incident or from the body of the deceased in post-mortem. In the light of the fact that there was a previous enmity between the parties and the eye-witnesses examined are related to the deceased and are interested witnesses; and that in absence of the lantern or the torch, in the light of which the incident was said to have been witnessed, the prosecution case as placed before the court is full of doubts, and as such the accused-appellants are entitled for benefit of doubt.” http://www.judis.nic.in 13/73 W.P.(MD).No.78 of 2019
(b) In Amar Singh V. State of Punjab reported in 1987 1 SCC 679 :: 1987 SCC (Crl) 232, the Hon’ble Supreme Court acquitted the accused as there was inconsistency between the post-mortem report submitted by P.W.2 which shows that there was only contusion, abrasion and fractures and there was no incised wound on the left knee of the deceased as alleged by P.W.5 who deposed that all the accused inflicted injuries on the deceased with their respective weapons.
As the evidence of P.W.5 is totally inconsistent with medical evidence, the accused were acquitted. Paragraph 10 of the judgment is extracted as follows:
“10. It is next contended on behalf of the appellants that the learned Additional Sessions Judge and the High Court were not justified in placing any reliance upon the evidence of P.W. 5 Smt. Veero, which is totally inconsistent with the medical evidence. It has been already noticed that all the accused persons were armed with sharp weapons. It is the evidence of P.W. 5 that Amar Singh, son of Bachan Singh, and Rattan Singh were each armed with a Sua, Lakha Singh was armed with a Barchi, Harbhajan Singh was armed with a Kulhari and Amar Singh, son of Isher Das, was armed with a Kirpan. She said "then all the accused except Bachan Singh accused surrounded my son Piara singh (deceased). Then Lakha Singh accused gave a Barcht blow on the left knee of my son. Then Piara Singh (deceased) fell down and all the accused then gave injuries to him with their respective weapons". In her cross-examination she said that the accused persons gave quite a number of blows with their respective weapons after they had overpowered him, and that many of the blows fell on the ribs and abdomen of deceased Piara Singh. But, not a single incised wound was found on the body of the deceased by P.W. 2 Dr. Verma. Moreover, the medical report http://www.judis.nic.in 14/73 W.P.(MD).No.78 of 2019 shows that there was no injury on the ribs and abdomen of the deceased. We are unable to accept the evidence of P.W. 5 that although a number of blows were given by the accused with their weapons on the ribs and abdomen of deceased, yet such blows did not produce any mark of injury. The medical report submitted by P.W. 2 shows that there were only contusions, abrasions and fractures, but there was no incised wound on the left knee of the deceased as alleged by P.W. 5. If her evidence that all the accused inflicted injuries on the deceased with their respective weapons, has to be accepted, then there would be incised wounds all over the body of the deceased, but the medical report shows that not a single incised wound was found on the body of the deceased. Thus the evidence of P.W. 5. is totally inconsistent with the medical evidence. This Court in Ram Naraln v State of Punjab ATR (1975) SC 1727 has laid down that if the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence, this is a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case. There is no explanation for the apparent total inconsistency between the evidence of P.W. 5 and the medical evidence.”
(c) In Khurshid Ahmed V. State of Jammu and Kashmir reported in 2018 7 SCC 429 :: 2018 SCC Online SC 529, the accused were charged with murder assault with weapons. The surgeon who conducted post-mortem P.W.13 after marking the post-mortem report Annexure P2 of the deceased giving the details of the injuries found on the body opined that the injuries found on the body of the deceased were sufficient to cause death. On the said evidence, the Court http://www.judis.nic.in 15/73 W.P.(MD).No.78 of 2019 found that the post-mortem report and the evidence of Doctor (P.W.13) corroborated the evidence of P.W.9, who described about the assault made by the accused and therefore, the Court convicted the accused observing that the direct oral evidence on record coupled with medical evidence point out the guilt of the accused. Paragraph Nos. 22, 23 and 28 are extracted as follows:
“23. In view of the above discussion, we are of the considered view that the direct oral evidence available on record coupled with the medical evidence, points at the guilt of the accused and not proving the motive for commission of the offence lost its significance in the facts of the case.
24. The learned senior counsel submits that in the present case, according to the prosecution, Sajad Ahmed, father of the deceased (PW9) was the only person who was present at the scene of offence at the time of occurrence.
The entire case, therefore, depends on the veracity of his evidence. PW9, being father of the deceased, the appellant—accused had naturally made the allegation that he is an interested witness and therefore his evidence is not reliable. We are not able to appreciate such contentions. This Court considered the aspect of truthfulness of an interested witness in several cases. In Dalip Singh & Ors. v. State of Punjab, (1954) 1 SCR 145 it is observed:
“Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth”.
…..
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28. In our opinion, the testimony of PW9 inspires confidence, and the chain of events and the circumstantial evidence thereof completely supports his statements which in turn strengthens the prosecution case with no manner of doubt. We have no hesitation to believe that PW9 is a 'natural' witness to the incident. On a careful scrutiny, we find his evidence to be intrinsically reliable and wholly trustworthy.”
16.Even to decide the age of the victim in Motor Accidents Claims cases, the opinion or post-mortem certificates issued by Doctors are accepted by Courts and based on the age shown in the post-mortem certificate, the Courts would apply corresponding multiplier as envisaged in II Schedule of Motor Vehicles Act, 1988 under Section 166(A) of the said Act, for calculating the compensation to be paid to the dependants of the victim. Such is the importance attached to post-mortem certificates in criminal cases as well as Motor Accidents Claims cases. Therefore, post-mortem certificates have to be prepared following the procedure as per Article 621 of Tamil Nadu Medical Code, which is extracted as follows:
“(621) Post-mortem certificates – Instructions for filling in – (i) After the words “body of a“ the sex should be entered.
(ii) The approximate age to be entered should be judged from appearance.
(iii) The date and time of receipt of the body and the name and official position of the person ordering the post-mortem should be entered, together with the number and date of the document sent by him.
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(iv) The number, rank and name of the constable in-charge of the body should be entered.
(v) After the words “ the body when first seen by the undersigned was” , its condition should be noted, (i.e.), whether warm cold condition of “ rifor mortis” or undergoing “putrefaction”.
(vi) The time at which the post-mortem examination was commenced and the date on which it was made should be accurately entered.
(vii) After “appearances found” all particulars found regarding wounds, injuries, suspicious signs, external or internal, should be concisely and sufficiently described, the site and extent of any wounds being carefully entered.
(viii) Identification and caste – marks should be entered in the office copy of the certificate.
(ix) The original certificate should be placed in a cover which should be sealed and sent direct by the Medical Officer to the Magistrate specified by the Police. The Police should be given the second copy of the certificate immediately the examination is over. The third copy of the post-mortem certificate should be sent to the District Medical Officer and the fourth copy should be retained by the Medical Officer of the Institution for record.
(x) The certificate should not be filled in until the post-mortem notes have been entered in full in ink, in the post-mortem register. This should be done at once to obviate the possibility of any delay to the delivery of the certificate to the police.
(xi) It is to be distinctly understood that the original certificate is, in all cases, to be sent by the Medical Officer direct to the Judicial Magistrate specified by the Police on the day on which the post-mortem is held. In order to facilitate the above procedure being followed, the police should specify in their requisition for post-mortem examination on the Magistrate to whom the post-mortem certificate should be sent.
(xii) A certified copy of the post-mortem certificate marked confidential may be given to the Military Authorities on requisition.” http://www.judis.nic.in 18/73 W.P.(MD).No.78 of 2019 Similarly, registers to be maintained in the Department of Forensic Medicine are 42 and they are extracted as follows:
“REGISTERS TO BE MAINTAINED IN THE DEPARTMENT OF FORENSIC MEDICINE
1. Attendance Register of the Medical Officer and others of Forensic Medicine at the office of Institute/Department of Forensic Medicine.
2. Post Mortem Entry Register maintained at mortuary RGGGH by IFM.
3. Dispatch Letter Register of the Institute/Department of Forensic Medicine.
4. Incoming Letter Register of the Institute/Department of Forensic Medicine.
5. Court Duty Attendance Register of the Institute/Department of Forensic Medicine.
6. Late Attendance Register of the Institute/Department of Forensic Medicine.
7. Movement Register of the Institute/Department of Forensic Medicine
8. Register of Allotment to the Medical Officers to conduct autopsy at the mortuary at Medical College/Hospital.
9. Register of post-mortem certificate handing over by the Medical Officers by the medical officers to conduct the autopsy to the Director of the Institute of Forensic
10. Register of PM certificate issued to the Police by the Institute/Department of Forensic Medicine.
11. Register of PM certificate issued to the public by the Institute/Department of Forensic Medicine.
12. Sexual Offence Entry Register of the Institute/Department of Forensic Medicine. Second opinion Entry Register of the Institute/Department of Forensic Medicine.
13. Bone Case Entry Register of the Institute/Department of Forensic Medicine.
14. Other Medico Legal Case Entry Register of the Institute/Department of Forensic Medicine.
15. Name of Incharge of the Persons whom maintained the Institute/Department of Forensic Medicine.
16. Students Attendance Register (UG & PG) of Institute/Department of Forensic Medicine.
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17. Attendance Register of Medical Officers and Staffs of the Institute/Department of Forensic Medicine.
18. Movement Register of Medical Officers and Staffs of the Institute/Department of Forensic Medicine.
19. Register for receiving and handing over the Department metal seal of Institute/Department of Forensic Medicine.
20. Stock Registers of Plastic Bottles using for skin bits and tissues sent to Histopathology Examination.
21. Register of receiving plastic bottles by the Medical Officers from the incharge.
22. Register of handing over Sealed Viscera bottles to concern police at mortuary.
23. Register of HPE bottles handing over to Pathology department at mortuary.
24. HPE results receiving register.
25. Viscera results receiving register.
26. Register for the purchase of sealing materials (arak), wire thread, cotton box (FOR PACKING THE VISCERA BOTTLES).
27. Stock list register of empty post-mortem rough notes at Institute/Department of Forensic Medicine.
28. Stock list register of empty post-mortem certificates of Institute/Department of Forensic Medicine.
29. Attendance registers of mortuary attendants and basic workers.
30. Copy of opening and closing key register of decision hall of Institute of Forensic Medicine.
31. Register of Library Books to the students, Medical Officers and Staffs of Institute of Forensic Medicine.
32. Register of circulation in the library of Institute/Dept of Forensic Medicine.
33. Register of receiving and handing over the microscope by Post Graduates, Assistant and Associate Professor.
34. Register of receiving and handing over the dissection kit for conducting autopsy at mortuary by the Medical Officers, Assistant and Associate Professor and Director.
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35. Copy of the Departmental/Government order to the above said form or document? And when does it implemented, with Letter receiving Register number of the above said.
36. Visitors register at mortuary (to see the deceased)
37. Register for the above said requisitions.
38. Register of visit of Health Inspector
39. Register of requesting kit for conducting autopsy on HIV affected deceased maintained by Director of Forensic Medicine.
40. Copy of phone message receiving register of Institute/Dept of Forensic Medicine.
41. Phone Message Receiving Register
42. List of specimen in the museum of Institute/Department of Forensic Medicine.” From the above, it is clear that elaborate procedures have been prescribed including registers to be maintained.
17.Four copies of post-mortem certificates have to be made ready, one original and the other three being copies. The original has to be sent in a sealed cover to the Magistrate concerned, the second one to the Police, the third one to the District Medical Officer and the fourth one to be retained in the institution for record purpose. It is also clear that as per Article 621 of Tamil Nadu Medical Code, the original certificate has to be sent by the Medical Officer to the Magistrate through the Police on the same day after post-mortem. However, it is contended by the petitioner that procedures are not followed, cut and paste method is followed, except changing the name, age and the Police Station. To http://www.judis.nic.in 21/73 W.P.(MD).No.78 of 2019 buttress the said point, when the matter was argued on 05.03.2019, the petitioner produced four post-mortem certificates. A perusal of the said certificates would reveal that the identification and caste marks of four different persons are one and the same namely (i) Black mole on left side chest (ii) Black mole over right side abdomen even though the persons who died were different. As this Court, after perusing the said post-mortem certificates grew suspicious as to whether actually post-mortems are done and if post-mortems are done, whether the details are correctly reflected in the certificates, passed an interim direction on 05.03.2019 to the respondents to conduct a post-mortem which shall be videographed, a copy of which shall be kept as CD.
18.When the matter was argued on 05.03.2019, the petitioner brought to the notice of this Court that around 700 post-mortems have been done in Government Rajaji Medical College and Hospital, Madurai and none of the certificates have been signed and have been sent to the Police Station concerned so far. Therefore, this Court impleaded suo motu the Dean, Government Rajaji Medical College and Hospital, Madurai as 4th respondent and instructed the Government Pleader to get details regarding the aforesaid allegations. On 09.04.2019, a typed set of papers has been filed by the Special Government http://www.judis.nic.in 22/73 W.P.(MD).No.78 of 2019 Pleader which contains despatch particulars regarding post-mortem certificates in Government Rajaji Medical College Hospital, Madurai. The following tabular column gives the despatch particulars regarding post-mortem certificates in the said hospital:
Total No. of post-mortems from 01.01.2019 to 01.04.2019 :: 952 Post-mortem certificates pending for want of In-patient sheets by two Doctors :: 2 Post-mortem certificates pending with Medical Officers :: Nil Post-mortem certificates pending with Typist :: Nil Post-mortem certificates received by Police till 03.04.2019 :: 647 Post-mortem certificate completed, yet to be received by Police :: 303 The above details provided by the Professor and Head of the Department of Forensic Medicine, Government Rajaji Medical College and Hospital, Madurai, would prove the allegation of the petitioner that the post-mortem certificates are not sent as per Article 621 (ix) of Tamil Nadu Medical Code. It is evidently clear that there is a failure to send 303 post-mortem certificates which are yet to be received by the Police. It is the duty of the Forensic Expert http://www.judis.nic.in 23/73 W.P.(MD).No.78 of 2019 to give the post-mortem certificate immediately after the post-mortem is over.
For the period during 01.01.2019 to 01.04.2019, namely, 3 months, around 303 post-mortem certificates are pending in the hospital. If the Police is not receiving it on the same day, it is the duty of the authorities to inform either the Deputy Superintendent of Police or the Superintendent of Police regarding the failure of Local Police and the Doctors cannot keep the post-mortem certificates in cold storage, in violation of Article 621 (ix) of Tamil Nadu Medical Code.
19.Though this Court is not underestimating the role played by the Forensic Experts in conducting autopsies, it is common knowledge that usually, the dissection of the body is being done by other persons in the mortuary room, mortuary attendants/sanitary workers. Therefore, this Court cannot ignore the allegations made by the petitioner. It is stated in the counter affidavit filed by respondents 1 to 3 in paragraph No. 8(a) that the duration of post-mortem varies from 1 to 3 hours depending upon each case. However, a Forensic Medical Expert is said to have done 16 post-mortems in a single day. In fact, it is tacitly admitted by the respondents in paragraph 6 of the counter affidavit. http://www.judis.nic.in 24/73 W.P.(MD).No.78 of 2019
20.As the petitioner contended that in each Medical College, two Scientific Officers have to be appointed and their presence is necessary during post-mortem which is denied in the counter affidavit as unnecessary, this Court by order dated 05.03.2019, directed two experienced Scientific Officers, who are in service to appear before this Court, (i) Mr. K. Loganathan, Scientific Officer, Stanley Medical College and Hospital, Chennai and (ii) Mr.J. Ramesh, Scientific Officer, Madurai Medical College, Madurai to appear before this Court to assist the court and also to spell out the qualifications and their duties as Scientific Officers. The Additional Government Pleader undertook to inform them to be present before this Court on 19.03.2019.
21.The said Scientific Officers were present before the Court on various dates. This Court asked them to give the details honestly. Hence, they explained in detail about what are all happening in Medical Colleges including performance of dissection unscientifically by mortuary assistants and other persons who are present in the mortuary without following the scientific methods. They submitted the Forensic Experts are not personally performing autopsies most of the times. The post-mortem certificates have not been issued as per the format issued by the National Human Rights Commission, which has http://www.judis.nic.in 25/73 W.P.(MD).No.78 of 2019 been made mandatory as per G.O.Ms.No. 91 Health and Family Welfare Department dated 04.03.1998.
22.Moreover, the post-mortem reports do not accurately reflect the findings as found on the body. Sometimes, even in the absence of medical experts, autopsies used to be done by others. Forensic Experts used to prepare on their own without seeing the body and many times, cut and paste methods have been followed. In fact, Mr.K.Loganathan would submit that when he questioned about all those things, he was threatened and complaints were made against him as if he was at fault. It is submitted that the Doctors do not come regularly and they come and sign the Attendance Register for many days on a single day. Though many Doctors are supposed to attend the hospital work, in turn, they themselves allot one Doctor to look after the work on a single day. The post-mortem certificates, as stated above, are pre-drafted or prepared on dotted lines and they are not sent to the Magistrate through Police as mandated under Article 621 of Tamil Nadu Medical Code and many post-mortem certificates were not submitted to the Head of the Department to be sent to the Magistrate and they were belatedly sent, sometimes even months together, giving room for manipulations.
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23.The Scientific Officers would state that G.O.Ms. No. 24 dated 20th June, 1973 by which the qualification for appointment of Scientific Assistant Grade II is given stating that preference will be given to holder of M.A. Degree in Criminology and Forensic Science. Subsequently, another Government Order in G.O. Ms. No. 1951 Health and Family Planning Department dated 7th August, 1975 has been issued stating that a candidate for appointment as Scientific Assistant Grade II must possess M.A. Degree in Criminology and Forensic Science.
24.Since the respondents have questioned the qualifications and the necessity of Scientific officers, the Scientific Officers produced various Rules and Government Orders and stated that the post of Scientific Assistant is governed by Tamil Nadu Medical Subordinate Service Rules and subsequently, by virtue of G.O.Ms. No. 296 Finance (Pay Cell) Department dated 26.08.2010, the post of Scientific Assistant is said to have been re-designated as Scientific Officer and revision of pay scale for various posts including Scientific Assistant has been mentioned. The duties attached to the post of Scientific Assistant are http://www.judis.nic.in 27/73 W.P.(MD).No.78 of 2019 stated in Memo Reference No. 118546 – ME I (2) /73 dated 22.01.1973 of the Director of Medical Education, Chepauk, Madras – 5 and it is as follows:
(a) Will be assisting the Medical Officers in conducting medico-legal autopsies;
(a) Will be assisting in conducting medico-legal bone cases;
(b) Will be assisting in age estimation by X-rays;
(c) Will be selecting suitable specimen for museum study;
(d) Will be acting as co-ordinator in all matters of criminology and medical courses;
(e) Will be acting as Liaison Officer with Police and public on official matters.
The aforesaid duties as prescribed by the respondents themselves would denote that the role of Scientific Officers during post-mortem is necessary. Therefore, the contention of the respondents that the presence of Scientific Officers is not necessary during post-mortem as stated in paragraph No. 9 of the counter affidavit is not correct. In view of the important role to be played by the Scientific Officers during autopsy, as narrated above, enough Scientific Officers should be appointed.
25.As the aforesaid officers appeared before this Court and stated the happenings in Forensic Department, it seems they have been put to unnecessary http://www.judis.nic.in 28/73 W.P.(MD).No.78 of 2019 trouble. The respondents went to extent of making a statement before this Court that the Scientific Officers namely, K.Loganathan and J.Ramesh were appointed only on contract basis and they are not permanent employees. The falsity of the statement made on behalf of the Government is proved by the proceedings dated 09.07.2018 issued by the Dean, Stanley Medical College, in which it has been stated as follows:
“Thiru K.Loganathan, Scientific Officer has been regularly appointed as Scientific Officer with effect from 14.04.2008 FN. He has completed 10 years of service as on 13.04.2018 AN including services rendered in the post of Scientific Officer.
Consequent on his appointment as Selection Grade Scientific Officer, his pay is fixed at Pay Matrix , Level -19, Cell NO. 16 &
17.Rs.59,600/- with effect from 14.04.2018 FN in the scale of Pay Matrix Level-19 (37200 – 117600) with usual allowances admissible from time to time.
Certified that the sanctioned strength of the post of Scientific Officer is not increased due to the advancement in Selection Grade.
Consequent on the appointment to Selection Grade, the pay of the individual is fixed as shown in the annexure to this order.
The date of next increment in the Ordinary Grade post is allowed to the Selection Grade post also.
He is permitted to draw the arrears of Pay and allowances with retrospective effect under the usual Head of Account.” http://www.judis.nic.in 29/73 W.P.(MD).No.78 of 2019
26.Similarly, in respect of Mr.J.Ramesh, by proceedings dated 25.06.2012, the Director of Medical Education, stated the service of J.Ramesh is regularised with effect from 16.04.2008 which is extracted as follows:
“The temporary services of Thiru J. Ramesh in the category of Tamil Nadu Medical Subordinate Services are regularised with effect from 16.04.2008 AN.
2) Consequent on the above, Thiru J. Ramesh, Scientific Officer, Madurai Medical College, Madurai is deemed to have been completed satisfactorily the period of probation of 2 years on duty within a continuous period of 3 years in the post of Scientific Officer under Rule 23 (a) (1) of the General Rules of Tamil Nadu State Subordinate Services on 15.04.2010 AN.
3) Thiru J. Ramesh, Scientific Officer is eligible to draw arrears of increments, if any, consequent on the retrospective regularisation of his service as ordered in para (1) above and on the orders issued for the declaration of completion of probation in para (2) above.
4) The Dean, Madurai Medical College, Madurai is requested to make necessary entries in the Service Register of the individual.” The above proceedings would prove that Mr.K. Loganathan and Mr.J. Ramesh, Scientific Officers are permanent employees and their services have been regularised and therefore, the denial by the Government/respondents is contrary to the documents. It is very unfortunate that the higher Government http://www.judis.nic.in 30/73 W.P.(MD).No.78 of 2019 officials have gone to the extent of denying regular Government Servants as contract staff.
27.Though the respondents stated that Scientific Officers are not qualified, the educational qualifications of the officials would prove that they possess Degree in Criminology and they have put in more than 12 years of service. The vindictive attitude of the respondents is further exhibited by denial of salary payable to them and the same was reported to this Court. By orders dated 05.04.019 and 09.04.2019, this Court directed the respondents to pay the salary payable to them and thereafter, the salary was paid to them.
28.Mr.K.Loganathan, Scientific Officer made a statement before this Court that he is being threatened including foisting of a case under PCR Act. Paragraph No.2 of the order dated 09.04.2019 is as follows:
“2.Mr.K. Loganathan, Scientific Officer, who appears and assists this Court with regard to post-mortem done in the Government Hospitals, would submit that the people are threatening in many ways including foisting of case under PCR Act and he is afraid of his security is being threatened. The said statement is recorded.” http://www.judis.nic.in 31/73 W.P.(MD).No.78 of 2019 It is very crystal clear that two straight forward bold Scientific Officers who have come before this Court as per the order of this Court and assisted the Court by giving details and the happenings in the Forensic Department have been victimised and threatened by the higher officials as they are afraid that they will be exposed by their negligence in their duties. What is shocking and surprising is that the respondents went to the extent of denying the post of Scientific Officers as permanent and deliberately withheld the payment of salary payable to permanent Government Servants. Even though they are in service, they boldly assisted the Court, unmindful of the fact that their act would invite the displeasure of their higher officials. What is worrisome is that all these are happening when the matter is pending before this Court and what would be the position of these Scientific officers after disposal of this matter cannot be imagined. Therefore, there is every possibility or likelihood of these officials being victimised by unnecessary departmental proceedings and therefore, the respondents are warned not to exhibit any vindictive attitude towards these officials and take any unnecessary, coercive, unwarranted proceedings against these officials as they were present before this Court only to assist the Court.
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29.It is stated in paragraph No.7 of the counter affidavit that a Forensic Medical Expert can give his opinion only on the cause of death and he is not a competent person to decide the manner of death and the right person to decide the manner of death is only the Police Officer. The aforesaid contention made by the Director of Medical Education/2nd respondent is contrary to the Medical Literatures. The following Medical Literatures would show that a Forensic Medical Expert has to give his opinion as to the cause and manner of death.
30.Modi’s Text Book of Medical Jurisprudence and Toxicology, edited by NJ Modi, 1963 Edition, in Chapter III, namely, “Post-Mortem Examination” (Autopsy), at Page No.62 states as follows:
“ D: Opinion as to cause and manner of death” :
A Medical Officer performing a post-mortem examination should be familiar with the normal and pathological portions of viscera and should be able to interpret post-mortem findings by proper training and experience, otherwise miscarriage of justice is sometimes a possibility. He should note the time of the arrival of the body at the morgue, the date and the hour of the post-mortem examination and the name of the place where it was held. The necessary papers authorising a Medical Officer to hold an autopsy are frequently brought by the Police long after the body is arrived. This dilatory method on the part of the Police has occasionally led to the decomposition of the body in the post-mortem room even when it has arrived in good condition. It is therefore safer to note the exact time of delivery of these papers. There should be no unnecessary delay in holding a post-mortem http://www.judis.nic.in 33/73 W.P.(MD).No.78 of 2019 examination. It should be made as soon as the papers are brought and the excuse of attending upon midwifery case or any other similar reason should not prevent him from performing this most important, though too frequently, unpleasant duty.
No unauthorised person should be allowed to be present at the autopsy.” “The Essentials of Forensic Medicine & Toxicology, 34th Edition, by Dr.K.S. Narayan Reddy, M.D., DCP, Ph.D, F.A.M.S., F.I.M.S.A, F.A.F.Sc, F.I.A.M.S, F.A.F.M., Honorary Professor of Forensic Medicine, SVS Medical College, Mahabub Nagar, (Retired Member, Osmania Medical College, Hyderabad) and Dr.O.P. Murthy, M.D., Professor of Forensic Medicine and Toxicology, All India Institute of Medical Sciences, New Delhi, states about the objects of medico-legal autopsy, which is as follows:
“Objects: (i) To find out the cause of death, whether natural or unnatural. This is done by detecting, describing, recording any external or internal injuries, abnormalities and diseases (ii) To find out how the injuries occurred (iii) To find out the manner of death, whether accidental, suicidal or homicidal (iv) To find out the time since death (v) To establish identity when no information (vi) To collect physical evidence in order to identify the object causing death and to identify the criminal (vii) To retain relevant organs and tissues as evidence (viii)In new-born infants, to determine the question of livebirth and viability.” http://www.judis.nic.in 34/73 W.P.(MD).No.78 of 2019 Legal Medicine for Lawyers and Doctors by K.S. Narayan Reddy, First Edition 1998 speaks that post-mortem would reveal the manner and cause of death:
“The manner of death is the way in which the cause of death was produced. If death occurs exclusively from disease, the manner of death is natural. If death occurs exclusively by injury or is hastened due to injury in a person suffering from natural disease, the manner of death is unnatural or violent. Violence may be suicidal, homicidal, accidental or of undetermined or unexplained origin. The manner of death is established mainly by investigational information and also by pathological findings.” The object of autopsy has been elaborately given in the Text Book “Review of Forensic Medicine & Toxicology (including clinical and pathological aspects).
“Purpose/Objective of Autopsy: To find out the manner of death, whether accidental, suicidal or homicidal and if homicidal, whether any trace of evidence has been left by the accused on the victim.” J.B. Mukherjee’s Forensic Medicine and Toxicology, edited by R.N. Karmakar, 3rd edition states the aims and objects of Medico Legal Autopsy as follows:
“1.Who was he/she? What was the identity of the deceased?
2.What was his cause and mode of death?
(a)Whether death was natural or unnatural?
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(b)Whether death was due to effects of injury, asphyxia, poisoning, etc. and whether it was suicidal, homicidal or accidental?
3.What were the injuries? Whether incised or lacerated, abrasion or bruise, punctured, penetrating or perforating, gunshot injury, burn or scald, etc.?
4.Whether injuries were ante mortem or post-mortem?
5.What was the time elapsed since death?
6.Whether the injuries – individually or collectively, were sufficient to cause death in ordinary course of nature?
7.What was the nature of the offending weapon to inflict the injuries?
8.What were the number of assailants in case of multiple and varied types of injuries?
9.What was the relative position of the victim and the assailant at the time of infliction of injuries?
10.What was the victim doing at the time of infliction of injuries and thereafter? What voluntary acts are caused by him?
11.Whether injuries on the victim’s body could be defence injuries or self-inflicted ones?
12.What was the place of death – that is ascertained from saponification, mummification?
13.Was the body shifted from the scene of crime? Any inference possible about scene of crime?”
31.The National Human Rights Commission also felt that the autopsy report forms in use in the various States are not comprehensive and they do not serve the purpose which give scope for doubt and manipulation. Hence, it http://www.judis.nic.in 36/73 W.P.(MD).No.78 of 2019 suggested to revise a different form to plug the loopholes and make it very incisive and very purposeful. The Commission almost adopted UN model autopsy protocol and prepared the model autopsy form and recommended through the Government, a model autopsy form and additional procedures for inquest to be followed in the State. The State Government accepted the recommendation of the National Human Rights Commission by G.O.Ms. NO. 91 Health and Family Welfare Department dated 04.03.1998. A model post- mortem report form contains six pages with Appendix (a) consisting of 18 columns. The said model post-mortem report form has been produced by the petitioner and a perusal of the same would reveal that at Serial No.5, which is the opinion column, the opinion should contain various findings and the relevant portion reads as follows:
“(i) Probable time since death: (keep all factors including observations at inquest)
(ii) Cause and manner of death : The cause of death to the best of my knowledge and belief is:
(a) Immediate cause-
(a) Due to-
(c) Which of the injuries are antemortem/post-mortem and duration after antemortem?
(d) Manner of causation of injuries.
(a) Whether injuries (individually or collectively) are sufficient to cause death in ordinary course of nature or not?
(iii) Any other” http://www.judis.nic.in 37/73 W.P.(MD).No.78 of 2019 The aforesaid literatures and the model post-mortem report form suggested by NHRC categorically speak about the necessity to give a finding regarding the cause and manner of death in the post-mortem report. However, shockingly and surprisingly, the respondents, without knowing the fundamentals has stated in paragraph No.7 of the counter affidavit, the cause of death alone to be mentioned in the post-mortem certificate and the manner of death cannot be given by the Forensic Expert. When the understanding of the higher officials is very pathetic with regard to the finding to be given in the post-mortem report, this Court cannot expect the Forensic Experts to give a finding regarding the manner of death. Hence, the contention made by the petitioner that post-
mortem reports are not comprehensively prepared and they are not done scientifically has to be accepted by this Court.
32.The petitioner contends that mostly the autopsies are not done by the Doctors and it is left to the Mortuary Attendants/Scavengers etc. However, in the Medical Literature Text Book , namely,” The Essentials of Forensic Medicine and Toxicology” by K.S. Narayan Reddy and O.P. Murthy, Chapter V, Medical Autopsy, after the introduction paragraph, it has been categorically stated as follows:
http://www.judis.nic.in 38/73 W.P.(MD).No.78 of 2019 “The autopsy should be carried out by the Doctor, and not left to a mortuary attendant. The Doctor should remove the organs himself. The attendant should prepare the body and help the doctor where required such as sawing the skull cap, reconstruct the body, etc.” From the above, it is seen that leaving the autopsy to the mortuary attendant is not a new phenomenon and it is there for a long time and that is the reason why it has been cautioned by the experts in the aforesaid medical literatures itself. Even it is common knowledge that Doctors mostly will not come near the body and only in contested or very sensitive murders or deaths, they will do autopsies by themselves. Therefore, it is hereby made clear that the Forensic Experts shall themselves do the autopsies with the assistance of experienced Mortuary Attendants, Scientific Officers, Technicians and Sanitary Workers and should not be left to them alone.
33.When the matter was argued before this Court, it was reported by the petitioner on 12.04.2019 that a person suffered burn injuries on 09.04.2019 as a third party allegedly set him on fire in Karaikudi. The victim was rushed to Karaikudi Government Hospital and he was asked to shift to Sivaganga Government Medical College Hospital as there were no facilities in Karaikudi Hospital. Even there, there were no proper facilities and the victim was rushed http://www.judis.nic.in 39/73 W.P.(MD).No.78 of 2019 to Government Rajaji Medical College and Hospital, Madurai, which is about 45 kms from Sivaganga. Even after admission, without considering the pathetic condition of the victim, he was not given proper medical attention. Even the Air Condition was not switched on. Like the victim, there were three other burn injury patients and there were no Doctors in the said ward to attend the patients. Two P.G. Trainee Doctors alone were there who claimed to be P.G. Medical Students, at 4.30p.m. on the said date. The petitioner requested one of the nurses about the injury of the victim, he was informed that the victim suffered 60% of burn injuries. Therefore, the petitioner asked the Doctors, whether any information was given to the Magistrate regarding dying declaration. However, the person, who claimed to be a P.G. Doctor, rudely stated that it was none of his business and the petitioner had to go out of the hospital. Left with no other option, he came out of the hospital and within half an hour, the victim died and there is no dying declaration recorded eventhough the petitioner himself recorded the statement of the victim in his mobile phone. The petitioner also submitted that the persons who claimed to be Doctors were not wearing the name badge, which is mandatory for all the Government Doctors. Moreover, no names of the attendant doctors are found in the Board which has to be exhibited. http://www.judis.nic.in 40/73 W.P.(MD).No.78 of 2019
34.In view of the aforesaid position, by order dated 15.04.2019, this Court made the following order:
“2.Mr.L. Shaji Chellan, learned practicing counsel before this Court is to get CCTV footage of postmortem room attached to the Madurai Government Rajaji Hospital between 01.04.2019 and 15.04.2019 and he is to get the postmortem register and other records on 16.04.2019. In this regard, Mr. Loganathan, Scientific Officer, attached to Stanley Medical College and Hospital, is directed to assist Mr.L. Shaji Chellan, learned counsel for identifying the records, which according to him are relevant to prove his allegations.”
35.Pursuant to the above orders dated 15.04.2019, Mr. Shaji Chellan, Advocate, collected the following registers:
“1. Register 21 Nos.
2. Hard disk (DVR) – 1No (XY303852)
3. PM case sheets total – 190 Nos.
4. Mortuary Labels from 01.04.2019 to 15.04.2019 – 178 Nos.
5. Post Mortem allowances proceedings - 3 Nos. Jan-2018 to February 2019 (Xerox)” Pursuant to the directions issued by this Court, the collected materials, documents, CDS, registers from Madurai Medical College Hospital, Sivaganga Medical College Hospital, Headquarters Hospital at Karaikudi, Sivaganga http://www.judis.nic.in 41/73 W.P.(MD).No.78 of 2019 District were directed to be analysed and a report was asked to be given by Mr.K. Loganathan and Mr.J. Ramesh.
36.A detailed report dated 24.04.2019 has been filed by the aforesaid Scientific Officers on the said date. A perusal of the report shocks the conscience of this Court. The allegations made by the petitioner in the writ petition are proved to be correct. As per the records of Government Rajaji Medical College and Hospital, Madurai, from 01.04.2019 to 15.04.2019, there were 178 post-mortems conducted by the Doctors in Madurai Rajaji Government Medical College Hospital. Out of these 178 post-mortems, there were 57 post-mortems of different cases (Road Accident, Murder, Poisoning, etc.). All these 57 post-mortems are saying almost same findings i.e, cut copy paste of the findings. Very few findings are varying in the certificates. Further, as per the CCTV footage, measurements were not taken in any of these bodies. So, it is obviously clear that all these 57 post-mortem certificates are done using cut copy paste method. In cases of road traffic accidents when the head was injured, the findings are as follows:
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37.It is observed in the report that no manner of death was described by the Doctors in the post-mortem report even though the manner of death was already written on the left side top of the post-mortem rough notes. The manner of death has to be mentioned by the Medical Officer after completion of post- mortem and after perusal of all relevant documents given by the Investigating Officer, namely, (i) History of the case
(ii) Form 67 i.e, report to be forwarded along with dead body
(iii) FIR
(iv) Copy of scene of occurrence
(v) Accident Register
(vi) Treatment Summary and other relevant documents
(vii) Material related to the occurrence/crime The manner of death has not been mentioned in the post-mortem certificates. Therefore, it is very clear that all the above post-mortems were done contrary to the Medical Literature and also NHRC model autopsy report. It can be easily visualised that it is not only in Madurai Rajaji Government Medical College and Hospital, but throughout the State, the same state of affairs should be the reality.
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38.One more shocking revelation made in the report is that even though more Doctors are said to be attending duty, the reports give the details as to how only one Doctor conducts more than 10 autopsies in a single day which is impossible. The following tabular column given in the report would fortify the allegations made by the petitioner that the Doctors are not conducting autopsies themselves scientifically as it is impossible for a single Doctor to do autopsies ranging from 10 to 17 per day. Even in paragraph No.8(a) of the counter affidavit, it is stated that duration of a post-mortem varies from 1 to 3 hours depending upon each case. However, very shockingly, one Doctor alone has done more than 10 autopsies in a single day. This fact would show that the Doctors are not doing it, which proves the allegation of the petitioner. http://www.judis.nic.in 46/73 W.P.(MD).No.78 of 2019 The aforesaid tabular column would prove the contention of the petitioner that almost, all the findings given in one post-mortem is being given in another case even without any post-mortem, which goes against the very purpose of post-mortem and it is as good as not doing post-mortem at all. In most of the medico-legal cases, the outcome of the criminal case depends upon the findings in autopsy certificate and also the Doctor’s evidence. If in this shabby and unscientific manner and without actual performance of autopsies by Doctors, the autopsy reports are prepared, it will lead to collapse of criminal justice delivery system in this country. The Doctors are most respected citizens of this country and they are doing yeoman service and also aid in justice delivery system in medico-legal cases. Therefore, corrective measures have to be taken as otherwise, criminals would escape from the clutches of law because of the negligence and deliberate failure on the part of the Doctors who are doing post- mortems.
39. The report would also reveal that the Doctors are signing the Attendance Register but they are physically not present during the duty hours. One Doctor puts his initials in different manner which has been elaborately described in page No.7 of the report. If the Doctors are not regularly attending http://www.judis.nic.in 47/73 W.P.(MD).No.78 of 2019 duty and still claim salary and other perks without discharge of their duties, it will tantamount to injustice to the society. It is pointed out by the petitioner that even though the system of biometric attendance exists, it is not followed properly. Based on the biometric attendance, salary is not paid. If salary is not paid as per the Attendance Register, the very object of having Biometric System will be defeated as stated in the proceedings of this Court dated 15.04.2019. The Government has introduced Biometric Attendance system by G.O.Ms. No. 277 Health and Family Welfare (E1) Department dated 20.09.2012 and the relevant portion is extracted hereunder:
“3. The Director of Medical Education, Director of Medical and Rural Health Services, Director of Medical and Rural Health Services (ESI), Director of Public Health and Preventive Medicine and the Commissioner of Indian Medicine and Homeopathy are instructed to introduce the Bio-metric system to monitor and regulate the attendance of staff in all the hospitals/ institutions under their control with effect form 01.10.2012 by utilising the available Hospital Maintenance Fund/Patient Welfare Society Fund /from other sources where Hospital Maintenance Fund/Patient Welfare Society Fund is not available.” However, the report would reveal that the Doctors are not attending and defrauding the Government. Therefore, it is directed that based on Biometric http://www.judis.nic.in 48/73 W.P.(MD).No.78 of 2019 Attendance only, namely, depending upon the number of days attended, the salary should be proportionately paid. For the days having not attended or attended late, the salary has to be deducted. Not only Biometric Attendance, while entering as well as while leaving the hospital, attendance should be recorded. Otherwise, in the morning, they will come and record their attendance and thereafter, leave the hospital for reasons best known to them.
40.The important contention made by the petitioner is that as per Article 621 of the Tamil Nadu Medical Code, post-mortem certificate should be given to the Magistrate concerned through the Head Constable as soon as the autopsy is over on the same day. The report in paragraph No.12 states that during the relevant period namely, from 01.04.2019 to 15.04.2019 at Government Rajaji Medical College and Hospital, Madurai, only 17 postmortem certificates were issued to the Police out of 178 post-mortems done. In this regard, a separate sheet has been annexed in the report giving the details. http://www.judis.nic.in 49/73 W.P.(MD).No.78 of 2019 http://www.judis.nic.in 50/73 W.P.(MD).No.78 of 2019 http://www.judis.nic.in 51/73 W.P.(MD).No.78 of 2019 http://www.judis.nic.in 52/73 W.P.(MD).No.78 of 2019 http://www.judis.nic.in 53/73 W.P.(MD).No.78 of 2019
41.Out of post-mortem of 27 murder cases conducted from 01.04.2019 to 15.04.2019, only one post-mortem certificate was given on the next day of post- mortem. Even though post-mortem certificates were signed on the same day, some Doctors have not submitted the certificate to the Head of the Department http://www.judis.nic.in 54/73 W.P.(MD).No.78 of 2019 immediately and there was a huge delay as stated in the following Tabular Column.
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42.As per Article 621 of Tamil Nadu Medical Code, four copies have to be made ready, i.e., three copies apart from one original to be sent to the Judicial Magistrate. The second one should be given to the Police and the third one to the Head of the Department and the fourth one should be retained by the Medical Officer of the Institution for record. However, as revealed in the above Tabular column, there was a huge delay even in murder cases to hand over the copy of the post-mortem certificate to the Police as well as to the Judicial Magistrate and also to the Head of the Department and there is reason to believe as stated by the petitioner, for corrupt practices and for manipulations during those period. Therefore, there shall be a direction that the Doctors shall follow Article 621 of Tamil Nadu Medical Code by sending the post-mortem certificate as soon as it is over to the Judicial Magistrate and send a copy to the Head of the Department on the same day failing which departmental proceedings shall be initiated against them. The Health Secretary shall issue http://www.judis.nic.in 57/73 W.P.(MD).No.78 of 2019 a circular directing the Doctors to follow Article 621 of Tamil Nadu Medical Code in letter and spirit.
43.Various illustrations have been given based on the given cases as to how post-mortems are done, as to how, even if they are done, not properly done and autopsy reports are not prepared properly as per the regulations and NHRC model. As stated earlier, in the case of Muruganantham, he was burnt to death by pouring kerosene on him, on 09.04.2019. He was taken to Karaikudi Government Hospital on 09.04.2019 at 10a.m with 50% burn injuries. Thereafter, he was referred to Sivaganga Medical College Hospital at 11.30a.m.. Both in Karaikudi as well as in Sivaganga , the patient was conscious and oriented. When he was in Government Rajaji Medical College and Hospital, Madurai on 09.04.2019, at 2.40p.m., the Casualty Medical Officer assessed 50% to 60% burns. At the time of admission, the patient was conscious. Dr. Ramasamy, Duty Doctor, Ward NO. 301, sent a detailed report to the Police, which stated that Muruganantham died with 60% burn injuries on 09.04.2019 at 6.15p.m. During Golden Hour, the burn injury patient cannot be referred from Karaikudi to Sivaganga and then to Madurai. Even though General Surgeons were very much available in Karaikudi and Sivaganga, steps were not taken by http://www.judis.nic.in 58/73 W.P.(MD).No.78 of 2019 the Surgeons to save the patient from “hypovolemic shock”. The treatment summary was not sent from Sivaganga Medical College Hospital by the Duty Medical Officer. The report gives the minute details as to how the patient was shunted from Karaikudi to Sivaganga and then to Government Rajaji Medical College and Hospital, Madurai without giving proper treatment. As per the treatment summary, patient Muruganantham had 2/3rd degree burns. But, as per post-mortem certificate, superficial burn injuries. As per CCTV footage, it is proved that the injury was not noted by the post-mortem doctor. The Doctor who had to be present in the Government Rajaji Medical College Hospital, Madurai did not prove that he was present in the hospital.
44.Apart from the difference between findings/injuries in the post- mortem certificate and the treatment records, there is a difference between post- mortem certificate and CCTV footage regarding commencing and completion timing of post-mortem. As per the post-mortem certificate, the commencing time of post-mortem is at 10.30a.m. and the conclusion time is at 11.30a.m.. However, the CCTV footage shows the commencement at 12.25noon and completion by 12.40.p.m. The report says that many unauthorised people come and do all this in the dissection room before the Medical Officer. The Medical http://www.judis.nic.in 59/73 W.P.(MD).No.78 of 2019 Doctor who was to conduct the autopsy was not even dictating injuries to his assistant and the person, who was noting the injuries from the dead body was not a Doctor. So, these are all the flaws pointed out by the Scientific Officer after giving the post-mortem CCTV footage and after perusing the records. In this regard, the Health Secretary has to nominate a higher official to conduct an enquiry with regard to the negligence in treating the patient Muruganantham in Karaikudi, Sivaganga, especially in Madurai on 09.04.2019, who died out of burn injuries. There is also a mention about the Death Audit Meeting to be conducted by the Dean to rule out the negligence of the treating Doctors.
45.The above findings given by the Scientific Officers are all in consonance with the allegations made by the petitioner. Conducting of autopsy/post-mortem by appropriate Forensic Experts assisted by qualified persons like Scientific Officers in a scientific manner and noting of findings properly in the notes as per NHRC model are very important for the purpose of medico-legal cases. That apart, considering the above malpractices noted and deficiencies and illegalities in the preparation and issuance of post-mortem certificates, it is appropriate to direct the authorities to videograph the post- mortems. This Court is aware that it is not possible to videograph each and http://www.judis.nic.in 60/73 W.P.(MD).No.78 of 2019 every post-mortem. However, it should be informed to the relatives and on their request, the post-mortem could be videographed. It should be advertised in the newspapers that at the request of relatives, post-mortem could be videographed, if not all the post-mortems. Such a course is important in view of the aforesaid conduct of Doctors since Doctors are not present at the time of autopsy. At important points, in the mortuary as well as in the dissection halls, CCTV cameras should be placed and should be operational. In case of any doubt, it could be verified.
46.Moreover, unauthorised persons are doing dissections and even during the dissections, the Doctors are not going near the bodies and dictating the injuries to their assistants and noting of the injuries and findings are also not as per the format. The preparation of post-mortem certificate is not in the format as directed by NHRC. There is failure on the part of the Doctors, Forensic Experts to send the post-mortem certificates immediately after the autopsy to the Judicial Magistrate and handing over the copy to the Head of the Department. All these are reasons to suspect malpractices and meddling with the findings of autopsies at the instance of third parties for unknown reasons. http://www.judis.nic.in 61/73 W.P.(MD).No.78 of 2019 The above would categorically prove that autopsies are not done as per the regulations and NHRC model.
47.Besides, the post-mortem reports are handwritten and not legible to be understood either by the Court or by the Investigating Officer conducting investigation. Unless, it is legibly written, it is not possible for non-medical people to understand the writings of Doctors and Forensic Experts, who do autopsies. These post-mortem certificates have to be read and understood by the Investigating Officer for doing further investigation. Similarly, the Judicial Officers have to read, understand and decide criminal cases. Therefore, Medico Legal Reports (MLRs) and Post-Mortem Legal Reports (PMRs) have to be typed.
48.The High Court of Punjab and Haryana in Criminal Miscellaneous M. No. 19820 of 2011 (O&M), (Rajpal @ Labh Singh and Another V. State of Haryanan ) by order dated 29.03.2012 which is regarding an attempt to murder case, wherein handwritten MLR was submitted. The High Court of Punjab and Haryana directed only computer generated MLRs and PMRs have to be sent to the Judicial Magistrate and Police Officials and no handwritten report would be accepted. Accordingly, the NIC Haryana took initiative with inputs from the experts in the field and developed a software in consultation with prestigious http://www.judis.nic.in 62/73 W.P.(MD).No.78 of 2019 institutions like PGIMER (Post Graduate Institute of Medical Education and Research), Chandigarh and Rohtak. The software “Medical Legal Examination and Post-mortem Reports System” has the software project name (MedLeaPR). The salient features of the system are as follows:
(a) Data entry by doctor in stages (keeping in mind, typing speed of doctor and speed of Internet connectivity)
(b)Centralised web enabled solution, hosted at the State Data Centre. Only a system with Internet connectivity required by the Doctor.
(c)In case of some problem with the system, blank formats available for offline entry, which can be entered subsequently when the system is working.
(d) Complete audit trail in Admin module for maintaining User Log and Status details.
(e)The mandatory consent form has been provided in Hindi, English and Punjabi languages.
(f) Since the role of doctors is very crucial in the whole working of the system and transfer of doctors is a regular event, a mechanism has been incorporated in the system in which there is no intervention of System Administrator to accomplish this. A user can make required transfer request in the system and HOD of the transferee institute accepts the request at the time of joining of the doctor in the institute.
The web system has got secure access control to ensure privacy of victim and only authorised users can gain entry into the system based on login, user ID and password issued to them. After acceptance of the software by the designated Doctors and Hospitals in the States of Haryana and Punjab, UT of http://www.judis.nic.in 63/73 W.P.(MD).No.78 of 2019 Chandigarh, Punjab and Haryana High Court made it mandatory for those States to implement MedLeaPR software with effect from 03.12.2012 and is being regularly monitored by the High Court.
49.As already stated, this Court, in Crl.O.P. No. 12582 of 2007 in Muniammal V. The Superintendent of Police and others, by order dated 16.02.2008, gave a slew of directions to be followed while conducting autopsy. Paragraph 32 of the order contains the directions of the Court and they are usefully extracted hereunder:
“32.Medical Evidence is a scientific factor, which plays crucial role for determining many of the crimes perpetrated against the human body. Further, the know-how in Forensic Medicine on the part of Medical Officers is of utmost significance for Justice Delivery System. At this juncture, this Court, after going through the materials available in this case and in the backdrop of the authorities on the subject, deems it appropriate and feels compelled to place some suggestions for consideration and implementation by the authorities concerned, in the following manner :
(1).(a) Directorate of Medical Sciences and Directorate of Medical Education with the concurrence of the State Government may contemplate imparting periodical training to the Medical Officers, who are in Government service, on Forensic Medicine, to make their efficiency updated in the field. A standardised format of noting down the injuries and their signs can be evolved so that a uniform procedure for issuing medical certificate be followed state wide. The said authorities may constitute a team of experts to prepare the format, so as to make the job of doctors, who perform medico-legal functions, easier.
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(b) Every doctor posted in any Government hospital may undergo a week's training in Forensic Science Department in the nearby Government Medical College periodically and the State Government may evolve a scheme in this regard.
(c).The Government may provide sufficient infrastuctural facilities to the mortuaries and places where autopsies are conducted. (2)(a) In certain cases, the internal organs extracted from the corpse by the Doctor at the time of nicropsy have not been properly preserved, resulting the de-composition or dis-integration of the tissues by autolysis. When they are subjected to histopathological examination, desired result could not be secured leading to the loss of valuable evidence, which plays a crucial role in determination of the case by the Courts.
(b)The knowledge of the Medical and Para-medical staff should be updated by imparting periodical training to them. Adequate exposure to the preservation techniques is the need of the hour in order to secure accurate results. Hence, exhaustive examination of viscera can be obtained, only if the Medical and Para-medical personnel are possessing updated knowledge in preservation technique. The Government through Department of Health have been issuing circulars containing the procedures to be observed and followed by Medical and Para-medical Staff then and there. In some cases, errors occur on account of mis-application or improper handling of the procedures concerned, resulting in confusion in procedures, which screen the crimes from getting exposed to the eyes of Judiciary. So, it is desirable to issue the circulars whenever necessity arises, that is to say, if settled or codified procedures were violated or ignored, followed improperly and mis-applied even for a single occasion. (3) Medical Officers, who prepare the medical certificates, shall ensure that the findings written by them are legible. Inadequate, illegible and incomplete particulars in medical certificates are stumbling blocks in the administration of Criminal Justice System. The dimensions of the injuries and their colour age in http://www.judis.nic.in 65/73 W.P.(MD).No.78 of 2019 certain cases and other features shall find place in the medical certificates. The format, presently maintained for the post-mortem certificate, may be modified so as to enable the doctor, who conducts autopsy, to furnish all his findings in detail, with reference to each organ and region as per procedure generally adopted.
(4) Expertise of Forensic Medicine Experts may be availed to train the Medical Officers as to the special features on the subject, to guard against the loss of valuable evidence.
(5).(a) It is high time, the Governments, the Medical Council of India and the Medical Universities, which control the quality of medical education in this country, took serious view of this aspect and brought about appropriate measures.
(b) Every student of medicine should get familiarised with the intricacies of Forensic Medicine apart from academic knowledge, right from his/her undergraduate level i.e., from the educational institution itself, after passing through the curriculum, prescribed for him/her.
(c) To facilitate a better understanding of nuances of Forensic Medicine, the teaching of the subject may be taken up in the later part of the clinical years. In case of their having this subject in the early years of their study, they may not be in a position to know the importance of the principles applicable to the given circumstances. The students may read this subject for the purpose of getting through the examination, but the real involvement therein could not be expected.
(d)During the internship, all the House Surgeons (Compulsory Rotating Resident Internees) may be compulsorily posted in the Department of Forensic Medicine for a reasonable period, for a better comprehension of the subject. This suggestion is made, viewing that the medical students would sufficiently be equipped at the later part of their studies and the niceties of the features in the subject would be appropriately appreciated by them. http://www.judis.nic.in 66/73 W.P.(MD).No.78 of 2019 (6).It is bounden duty of the Government to produce Medical Experts in the educational institutions with a strong academic background, who would be fit for becoming members in the Health Delivery System and also for rendering yeoman services, to assist the Justice Delivery System, for which their exposure in the field of Forensic Medicine is indispensable.
(7)The authorities concerned may initiate efforts to increase number of admissions to Post Graduate Course in Forensic Medicine and to get due recognition from Medical council of India, and ensure output of such experts cater to the needs to a greater extent.
(8)The brass of police may issue directions to the Investigating Officers of the crimes, to get final opinion as regards the nature of wounds in injury cases and time and cause of death, in cases where unnatural death has occurred, before taking any decision either to proceed with the case or to drop further action. Instructions may also be issued, not to make any slipshod or improper investigation in the cases handled by the police, on the strength of wound certificates or post-mortem certificates, which lack material particulars. Necessary training may also be given to the police personnel, with regard to the appreciation of medical records, at the time of investigation in medico legal cases.”
50.Though the said directions were given as early as in the year 2008, even after passing of one decade, all the directions have not been complied with even as per the counter affidavit filed by the respondents stating paucity of funds, which is found in paragraph NO.10 of the counter. Paucity of funds cannot be an excuse for non-implementation of the order passed by this Court about 12 years ago. Therefore, appropriate steps have to be taken by the http://www.judis.nic.in 67/73 W.P.(MD).No.78 of 2019 authorities to implement the directions which are given in the interest of public and compliance should be reported to this Court.
51. In view of the above, the following directions are given while disposing of the writ petition:
(i) There shall be a direction that the Doctors shall follow Article 621 of Tamil Nadu Medical Code by sending the post-mortem certificate as soon as it is over to the Judicial Magistrate and send a copy to the Head of the Department on the same day failing which departmental proceedings shall be initiated against them.
(ii) The Health Secretary shall issue a circular directing the Doctors to follow Article 621 of Tamil Nadu Medical Code in letter and spirit.
(iii) The post-mortem certificates should be issued based on the NHRC model and following the regulations governing the same.
(iv) The Government Servants shall mark their attendance only through biometric system while entering as well as at the time of leaving the office including hospitals.
(v) Based on the biometric attendance only, depending upon the number of days attended, the salary should be proportionately paid after http://www.judis.nic.in 68/73 W.P.(MD).No.78 of 2019 deducting the days for which the employees had not attended subject to their leave entitlement.
(vi) There shall be a direction to the respondents to videograph post-
mortems whenever a request is made by the relatives or friends of the deceased
(vii) There shall be a notice in the hospitals especially in the mortuaries, dissection halls informing that there will be videographing of post-mortem in case of request apart from advertising in the newspaper that at the request of relatives, videographing of post-mortem could be done.
(viii) All important points in the mortuaries as well as in the dissection halls, CCTV cameras shall be placed and shall be operational at all times.
(ix) The Government shall ensure that all the hospitals where the postmortem are done are provided with sufficient set of equipments, tools and other consumables within a period of six months.
(x) The Health Secretary has to nominate a higher official to conduct an enquiry with regard to the negligence in treating the patient Muruganantham in Karaikudi, Sivaganga, especially in Madurai on 09.04.2019, who died out of burn injuries.
(xi) The web based system namely, MedLeaPR developed by NIC, Haryana, shall be followed by all the Doctors of the Hospitals in the State of http://www.judis.nic.in 69/73 W.P.(MD).No.78 of 2019 Tamil Nadu, in Government Health Institutions, Private Nursing Homes and Hospitals and this direction shall be with effect from 1st January, 2021.
(xii) The Government should appoint Scientific Officers in all the Government Medical College Hospitals and in every District headquarters. The qualification, duties and responsibilities for the post of Scientific Officers shall be defined by the Government with the assistance of a Committee of Experts constituted by the Government consisting of experts in Forensic Science, Criminology and medical examination and in other fields as may be suggested by the Forensic Department. The State Government is directed to constitute a Committee of Experts within six months and the appointment of required number of Scientific Officers should be made within one year after the qualifications and duties and responsibilities of the Scientific Officer are defined by the Committee of Experts.
(xiii) Mr.K.Loganathan, Scientific Officer, Stanley Medical College and Hospital, Chennai and Mr.J.Ramesh, Scientific Officer, Madurai Medical College, Madurai, who assisted the Court by giving the true facts shall not be victimised by the respondents or Government Authorities. http://www.judis.nic.in 70/73 W.P.(MD).No.78 of 2019
(xiv) Directions given by this Court in Crl.O.P. No. 12582 of 2007 in Muniammal V. The Superintendent of Police and Others by order dated 16.02.2008 shall be complied with on or before 28.02.2021.
W.M.P.(MD) No.7865 of 2019 is disposed of.
(N.K.K.J.) (S.S.S.R.J.) 28.09.2020 nv http://www.judis.nic.in 71/73 W.P.(MD).No.78 of 2019 To
1. The Principal Secretary to the Government, Health and Family Welfare Department, Government of Tamil Nadu, Chennai.
2. The Director of Medical Education, 156, Poonamallee High Road, New Bupathy Nagar, Chetpet, Chennai 600 031.
3. The Directorate of Medical and Rural Health and Services, (DMS), 359, Anna Salai, Teynampet, Chennai 600 006.
4. The Dean, The Government Rajaji Medical College Hospital, Madurai.
http://www.judis.nic.in 72/73 W.P.(MD).No.78 of 2019 N. KIRUBAKARAN,J.
AND S.S. SUNDAR,J.
nv W.P.(MD) No. 78 of 2019 Dated : 28.09.2020 http://www.judis.nic.in 73/73