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Selvakumar v. T.N. State Tr. Insp. of Police Salem Dist.

November 26, 2021
Criminal Appeal No. 205 of 2011

A. Medical Jurisprudence — Death due to strangulation or disease — Determination — Post-mortem report — Doctor’s opinion that when neck is strangulated, there is possibility that the excreta may be expelled out — He further admitted that there was a possibility of a person dying due to strangulation of the neck with several layers of cloth to cause the death — He, however, candidly accepted that such a situation was also not there in the present case — He has further admitted that there was no finger, nail marks impressions on the nose which would show that it was pressed to stop breathing except the swelling in the neck — Thus, cause of death is not due to strangulation of the neck and asphyxia — Evidence Act, 1872, S. 45


                                                                                                (Para 5)


B. Penal Code, 1860 — S. 302 — Murder — Conviction — Appreciation of evidence — Death, if death caused due to strangulation of the neck and asphyxia or not — Allegation that appellant got infuriated and wild when deceased child did not return money given to him and gave a slap to child as a result of which he died — Prosecution case was that appellant had strangulated the deceased — Defence plea that the deceased was suffering from Epilepsy disease and as a result of the appellant’s slapping on his face, he had died primarily because of the disease he was suffering from — In the internal examination of the body, the Doctor had found and it is specifically stated in the medical report that there was no breaking up of bones on the front part of the neck — It is also stated that there was no damage of any other part of the body — Notwithstanding the same, final report concludes with the opinion that deceased died due to strangulation of the neck and asphyxia — He has specifically admitted that the bones were in normal condition and there is no fracture — He has also admitted that when the neck is strangulated, there is possibility that the excreta may be expelled out — He further admitted that there was a possibility of a person dying due to strangulation of the neck with several layers of cloth to cause the death — He, however, candidly accepted that such a situation was also not there in the present case — He has further admitted that there was no finger, nail marks impressions on the nose which would show that it was pressed to stop breathing except the swelling in the neck — He even admitted that the other external wounds were possible when the child was playing, running around and fell down — From the aforesaid, one can clearly make out that cause of death is not due to strangulation of the neck and asphyxia — Though this opinion was given by the said doctor in the post-mortem report, he himself negated it by giving the aforesaid explanation in the cross-examination — Courts below have merely gone by the medical report, overlooking the crucial cross-examination of the Doctor which aspects are not discussed — Grandfather of deceased in his testimony very clearly stated that his daughter had told that deceased had died due to fits — Conviction of appellant is therefore liable to be set aside — Constitution of India, Art. 134


                                                                                       (Paras 5, 6, 7)

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(A.K. Sikri and Uday Umesh Lalit, JJ.)


 


Selvakumar ______________________________ Appellant


 


v.


 


T.N. State Tr. Insp. of Police Salem Dist. ______ Respondent


 


Criminal Appeal No. 205 of 2011, decided on May 28, 2015


 


The Order of the court was delivered by


Order


 


1. The appellant herein (A-1) was chargesheeted and tried along with one Rajamani (A-2) for alleged murder of Rajesh (deceased), a five years old son of Rajamani. Rajamani was married to Murugesan (PW-3) and out of this wedlock they had two children, the deceased and a girl aged two and a half years. The appellant had developed intimacy with Rajamani. One day Rajmani left the matrimonial house and went with the appellant along with her children. However, after sometime she came back to her matrimonial house but left again and start living with the appellant. She had taken her children this time as well. In the year 2006, when this occurrence in question happened, both the appellant and Rajamani were employed in a rice mill which was owned by Subramani (PW-7).


 


2. On 04.09.2006, at about 5 p.m., the appellant sent Rajesh (deceased) to purchase beedi from a nearby shop. For this, he gave some money to Rajesh. Rajesh purchased the beedi and came back to the appellant and handed over the beedi so purchased. Appellant demanded balance amount. Rajesh told him that he had purchased a chocolate from the balance amount and therefore no money was left. The appellant got infuriated and wild and, according to him, gave a slap to Rajesh. Rajesh fell down. When Rajamani returned, she took the child to a private clinic of PW-13. The said doctor advised her to take the child to a Government hospital since his condition was serious. On reaching a Government hospital in Salem, when the child was examined, he was pronounced dead.


 


3. Rajamani then proceeded to Thondamanthurai. On 05.09.2006, at about 9.30 a.m., she met the Village Administrative Officer (PW-1) and gave a statement narrating the entire incidence. She accused the appellant for killing Rajesh. This statement was recorded by PW-1 and the recorded statement was presented to the Sub-Inspector of Police, Arumbavur. On the basis of this statement, FIR No. 133/2006 was registered under Section 302 of the Indian Penal Code (IPC). The matter was investigated and during the investigation, Rajamani was also found to be a suspect. She was arrested as well. She came forward to give a confessional statement which was recorded on 06.09.2006. Thereupon, the appellant was also arrested and he also gave his confessional statement in which he admitted that he had slapped the boy under the circumstances already narrated above. Challan was filed in the court, various witnesses were examined and on that basis, the trial court found that charge under Section 302 IPC was made out and guilt of both the accused persons was established. He thus, awarded life imprisonment to both the appellant as well as Rajamani and also imposed fine of Rs. 1,000/- and in default directed that they would undergo six months RI. Both the convicts filed the appeals challenging the correctness of the judgment of the trial court. The High Court has allowed the appeal of Rajamani and acquitted her. Insofar as the appellant is concerned, his conviction and sentence is maintained.


 


4. Learned counsel for the appellant very fairly stated that he was not challenging the events in the manner it took place and recorded above. His only plea is that the story of prosecution that appellant had strangulated the deceased is totally incorrect and there is not evidence worth the name to substantiate this. He pointed out that the deceased Rajesh was suffering from Epilepsy disease and as a result of the appellant’s slapping on his face, he had died primarily because of the disease he was suffering from as the death could not be the result of one slap. For this purpose, he has taken us through the post mortem report and the evidence of Doctor V Sekar (PW-14) who had conducted the post mortem. We have gone through the said report. It shows following wounds on the dead body: –


 


“i) 3 × 2 cm size, scratch wound on the right side of the forehead.


 


ii) 1 × 1/2 cm size, one scratch wound on the left cheek.


 


iii) There was a wound of 3 × 6 cm, recently happened, on the right front portion. It is getting healed.


 


iv) 1 × 1/2 cm size one scratch wound on the left lower side of leg.


 


v) On the right side of the neck, below the right ear, 4 × 3 cm size one swelling was there.”


 


5. Injuries at Serial Nos. 1, 2 and 4 are only scratch wounds. As far as injury mentioned at Serial No. 3 is concerned, it appears that the same was an old wound which was getting healed. Injury at Serial No. 5 is on the right side of the neck below the right year and it only shows that there is some swelling. In the internal examination of the body, the Doctor had found and it is specifically stated in the medical report that there was no breaking up of bones on the front part of the neck. It is also stated that there was no damage of any other part of the body. Notwithstanding the same, this final report concludes with the opinion that Rajesh died due to strangulation of the neck and asphyxia. However, it would be pertinent to point out that his own cross examination demolishes this opinion of his. He has specifically admitted that the bones were in normal condition and there as no fracture. He has also admitted that when the neck is strangulated, there is possibility that the excreta may be expelled out. He further admitted that there was a possibility of a person dying due to strangulation of the neck with several layers of cloth to cause the death. He, however, candidly accepted that such a situation was also not there in the present case. He has further admitted that there was no finger, nail marks impressions on the nose which would show that it was pressed to stop breathing except the swelling in the neck. He even admitted that the other external wounds (which have been described above) were possible when the child was playing, running around and fell down. From the aforesaid, one can clearly make out that cause of death is not due to strangulation of the neck and asphyxia. Though this opinion was given by the said doctor in the post mortem report, he himself negated it by giving the aforesaid explanation in the cross examination.


 


6. We find that the courts below have merely gone by the medical report, overlooking the crucial cross examination of the Doctor which aspects are not discussed. It would also be pertinent to mention at this stage that father of Rajamani (grandfather of Rajesh) in his testimony very clearly stated that when he had beaten his daughter (Rajamani) and inquired how his grandson died, she had replied that Rajesh had fits and died due to that.


 


7. We thus are of the opinion that charge under Section 302 IPC as levelled against the appellant has not been proved beyond reasonable doubt. We, thus, allow this appeal and set aside the conviction.


 


8. The appellant shall be released from custody forthwith, if not needed in any other case.


 


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