Madras High Court
Kumar vs State Represented By on 10 August, 2018
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 29.06.2018 Pronounced on : 10.08.2018 CORAM THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Crl.O.P.No.2094 of 2011 and M.P.No.1 of 2011 Kumar, S/o.Late Sekar. ... Petitioner/Defacto Complainant Vs. 1.State represented by The Inspector of Police, P1, Dharmapuri Police Station, Dharmapuri, [Crime No.1660 of 2008] 2.The Superintendent of Police, CB CID, Dharmapuri. ... Respondents/Complainant PRAYER: Criminal Original Petition is filed under Section 482 of the Code of Criminal Procedure, to issue a direction to re-investigate the case in Crime No.1660 of 2008 on the file of the first respondent and to file an appropriate charge sheet. For Petitioner : Mr.M.Selvam For Respondents : Ms.V.Saratha Devi, Government Advocate [Crl.Side] * * * * * O R D E R
This Criminal Original Petition is filed to issue a direction to re-investigate the case in Crime No.1660 of 2008 on the file of the first respondent and to file an appropriate charge sheet.
2.The petitioner herein, who is an informant in Crime No.1660 of 2008 have filed the above petition seeking direction directing the 2nd respondent to re-investigate the case in the above Crime number in which investigation has been completed and the 1st respondent has filed a final report before the Judicial Magistrate No.I, Dharmapuri, which is taken on file in C.C.No.259 of 2009 for the offence under sections 147, 148, 323, 324 r/w 149 of the Indian Penal Code.
3.The grievance of the petitioner is that, the petitioner had lodged a complaint to the respondent police about the accused persons namely A.1 Mani, A.2 Srinivasan, A.3 Bairavan, A.4 Bairavan and A.5 Kumar and Mani A.6, who are residents of Dharmapuri Town. The accused attacked the petitioner and his father due to the previous quarrel and enmity. On 06-08-2008 at about 7.45 p.m., on the S.V.Road at Dharmapuri Town opposite to Central Cinema Theater near a Tea stall the accused persons with a common intention to commit murder of the petitioner had unlawfully assembled with deadly weapons. They attacked the petitioner and his father namely Sekar at about 7.45 p.m. For the injuries sustained, they had gone to the Government hospital Dharmapuri, wherein the petitioners father namely Sekar succumbed to the injuries caused by the accused persons. Thereafter, the petitioner had given a complaint to the 1st respondent naming six accused.
4.The 1st respondent registered a case in Crime No. 1660 of 2008 under sections 147, 148, 323, 324 and 302 of the Indian Penal Code. Thereafter, investigation was conducted, statement of 20 witnesses including the petitioner were recorded and final report came to be filed in C.C.No.259 of 2009, on 27-01-2011, deleting Section 302 of the Indian Penal Code. It is further stated by the petitioner that though, the charge sheet has been filed only under Sections 147, 148, 323, 324 r/w 149 of the Indian Penal Code, the statement of the witnesses and the medical evidence would reveal that the accused had committed an offence under Section 302 of the Indian Penal Code. Hence, the above petition seeking necessary orders to file an appropriate charge sheet in the above case.
5.The 1st respondent has filed a status report in which they have admitted that all the six are named accused in the FIR and there have been enmity and frequent quarrel between the petitioner, his friends and the accused. Whileso, the accused had attacked the petitioner and his father on 06-08-2008 at 7.45 pm. Petitioner and his father were admitted to Government Hospital Dharmapuri and the petitioners father succumbed to the injuries caused by the accused persons. On receipt of the complaint from the petitioner, the 1st respondent had registered a case in Crime No.1660 of 2008 under sections 147, 148, 323, 324 and 302 of the Indian Penal Code against the accused persons A.1 to A.6. Thereafter, the Investigating Officer gone to the scene of occurrence prepared Observation Mahazar drawn rough sketch before the witnesses and also examined the petitioner as well as 12 other witnesses and recorded their statements. Thereafter, inquest over the deceased body was conducted and after Postmortem the body was handed over to the petitioners family.
6.It is further stated that during the course of investigation, the 1st respondent had obtained Post Mortem certificate from Dr.M.Sivaraman, Government Medical College hospital, Dharmapuri, who had conducted Post Mortem. Thereafter, an opinion was obtained from Dr.G.Panneerselvam, Assistant Professor of Forensic Medicine, Government M.K.Medical College Hospital, Salem on 13-01-2009. The Post Mortem certificate, the cause of death was reserved for the report of chemical and microscopic analysis of viscera. The Forensic report dated 02-09-2008 of viscera had given a finding that poison was not detected from stomach, intestine, liver, kidney and preservatives. Further, he had opined as follows:
1.Nature of injury which mentioned in the Post Mortem Report and the findings in the internal organs is not sufficient to cause of death.
2.The Chemical Analysis report shows no poisoning.
3.A matter of however macroscopically unperceivable natural cause. If attributes to cause of death cannot be ruled out.
7.Thereafter, after completion of elaborate investigation, based on the final opinion given by Dr.G.Panneerselvam, Assistant Professor, Government M.K. Hospital, Salem, the then Investigating Officer came to a conclusion that the cause of the death of the deceased was not known and filed charge sheet altered the Sections 147, 148, 323, 324 r/w 149 of the Indian Penal Code against the accused persons and filed charge sheet against them before the Judicial Magistrate Court No.I, Dharmapuri, which was taken on the file as CC.No.259 of 2009 on 26-11-2009. At this stage the petitioner/informant filed this present petition for interim stay of all further proceedings in C.C.No.259 of 2009 and also sought direction to issue of necessary orders in Crime No.1660 of 2008 and hence, the trial could not be proceeded.
8.The learned Government Advocate has submitted on behalf of the 1st respondent is that at this stage there is no necessity to re-investigate the case in Crime No.1660 of 2008 and prayed that accepting the status report to dismiss the petition filed by the petitioner.
9.This Court had sought for the case diary and on perusal of the case diary, it is seen that on 30-01-2009, the Investigating Officer had taken a second opinion on the advice of the Deputy Director of Prosecution from the Professor of Forensic, Mr.G.Panneerselvam, of M.K.Hospital, Salem. Further, he states that the deceased Sekar had not sustained any grievous injury and no internal injuries found and the Postmortem Doctor also has opined that there is no injury causing leading to cause of death and further, the Forensic report states that there is no poison found in the internal organs since the deceased Sekar had only sustained simple injuries, and no definite reason could be found from the Postmortem report and the Doctor. Hence, on the advice of the Deputy Director of Prosecution a draft charge sheet had been obtained and the above charge sheet has been filed. Hence, the Section 302 has been deleted and for a lesser offence charge sheet has been filed.
10.It is pertinent to note that in this case there have been two injured witness and several eye-witnesses to the occurrence. The petitioner/informant himself is an injured witness and along with him one Kuppusamy has also been injured in the occurrence and Dr.Sivaraman of Government Medical Hospital, Dharmapuri has been examined, who had stated about the treatment given to these witnesses on 06-08-2008. It is seen from the complaint that complaint has been immediately given. In the said complaint, all the six accused have been named and their overt had been specified.
11.Further, immediately on the complaint Observation Mahazar has been prepared, inquest has been conducted on 07-08-2008 from 7.30 am to 11.30 am. The reason and cause of death has been found to be as opined by the Panchayathdars is on the same line of the complaint. Though, the Postmortem Doctor had reserved his opinion with regard to the awaiting of the viscera report, the requisition for the postmortem and the case history. It is categorically stated how and in what manner the deceased was assaulted and from the postmortem report it is found that on internal examination both the lungs seems to be congested, heart chambers contains multiple small clots presence which would corroborate to the injuries sustained by the deceased.
12.The heart has been sent for Pathological report to the Pathologist of Government M.K.Hospital, Salem. The Pathologist by his report dated 27-08-2008 had stated that the specimen of heart sent in Formalin completely autolysed [Destruction of tissues or cells] and hence, could not be processed. The Investigating Officer had sent the heart after a delay of 20 days for Pathological study. Why this delay had occurred and no reason had been stated. Due to the delay in sending the heart for Pathological study is the reason for uncertain report. Though in the Postmortem report, it is categorically stated that there is congestion and there are blood clots in the heart chambers. The Investigating Officer had not given due importance to the opinion of Dr.M.Sivaraman, obtained on 28.11.2008, the Postmortem Doctor attached to Government Medical Hospital, Dharmapuri. On the specific query raised, he has opined as follows:
nfs;tp : khh;gpy; tapw;wpy; khwp khwp jhf;fpajhy; Vw;gLk; mjph;r;rpahy; ,jaj;jpy; khuilg;g[ kw;Wk; ,jaj;jpy; mjph;r;rp Vw;gl tha;g;g[ cs;sjh> gjpy; : khh;gpy; tapw;wpy; khwp khwp jhf;fpajhy; Vw;gLk; mjph;r;rpahy; ,jaj;jpy; khuilg;g[ kw;Wk; ,jaj;jpy; mjph;r;rp Vw;gl tha;g;g[ cs;sJ/ nfs;tp : mt;thW ,jaj;jpy; khuilg;g[ kw;Wk; mjph;r;rp Vw;gLtjhy; ,wg;g[ Vw;gl tha;g;g[ cs;sjh> gjpy; : mt;thW ,jaj;jpy; khuilg;g[ kw;Wk; mjph;r;rp Vw;gLtjhy; ,wg;g[ Vw;gl tha;g;g[ cs;sJ.
13.Further, Dr.G.Panneer Selvam, Assistant Professor of Forensic Medicine, Government M.K.Medical College Hospital, Salem in his opinion dated 30.01.2009 had opined that the death was not occurred on natural cause, once such an opinion is obtained, it leads to the natural conclusion that the death of deceased Sekar will fall under Section 299 of the Indian Penal Code Culpable Homicide. Once such an opinion has been given by the doctor and known to the Investigating Officer. Strangely, this opinion has been glossed over and the Investigating Officer had filed a final report deleting Section 302 of the Indian Penal Code, which is a questionable one.
14.Now, the cognizance has been taken, summons to the accused has been issued and accused have appeared in the above case. The Magistrate has to peruse the C.D.file and on the categorical opinion given by the Doctor of Government Medical Hospital, Dharmapuri that the deceased could have died due to the attack of the accused and the injuries sustained. Further, the second opinion dated 30.01.2009 of Dr.G.Panneer Selvam, Assistant Professor of Forensic Medicine, Government M.K.Medical College Hospital, Salem states that the death caused was not natural. Now, due to the passage of time and already the case is pending trial from the year 2009 any alteration and change in the charges, notice has to go to the accused, which would further cause considerable delay.
15.In view of avoiding further delay, if on evidence during trial the Magistrate comes to a conclusion that the death of Sekar would fall under Section 299 and 300 of the Indian Penal Code. The Magistrate shall resort to Section 323 of Criminal Procedure Code, which is extracted below for the purpose of clarity and convenience.
Section 323. Procedure when, after Commencement of inquiry or trial, Magistrate finds case should be committed. If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions hereinbefore contained30 [and thereupon the provisions of Chapter XVIII shall apply to the commitment so made].
16.In view of the above direction, this Criminal Original Petition is disposed of, considering the inordinate delay and the duty is cast upon the Magistrate to give top priority in conduct of the above case preferably on a day-to-day basis.
17.With the above direction, this Criminal Original Petition is disposed of. Consequently, the connected Miscellaneous Petition is closed.
10.08.2018 Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No ah To
1.The Judicial Magistrate No.I, Dharmapuri.
2.State represented by The Inspector of Police, P1, Dharmapuri Police Station, Dharmapuri, [Crime No.1660 of 2008]
3.The Superintendent of Police, CB CID, Dharmapuri.
4.The Public Prosecutor, High Court, Madras.
M.NIRMAL KUMAR, J.
ah PRE-DELIVERY ORDER IN Crl.O.P.No.2094 of 2011 10.08.2018