In Re : Rajan

Arunachalam, J.—The appellant was tried in S.C.207/84 on the file of the Second Additional Sessions Judge, Tirunelveli for an offence

under S. 302, I.P.C. He was found guilty of an offence under S. 304(II), I P.C., and sentenced to undergo rigorous imprisonment for five years.

The facts which lead to the prosecution of the appellant need narration. The incident is said to have taken place at 7.30 P.M. on 25th

December, 1983 in the village of Nazerath at the Bus stand. The deceased Rajaguru, who is alleged to have been beaten on the head with

casuarina stick by the appellant died at 6.45 A.M. on 9th January, 1984 at the Tirunelveli Medical College Hospital.

The deceased who belongs to Nazereth village was a taxi driver. P.W.7 is his wife. The appellant and P.W.2 are also vehicle drivers. P.W.6

Selvin, a Commercial Instructor and resident of Nazereth was supervising the running of two jeeps belonging to his elder sister''s son. The appellant

was the driver of one of those jeeps, while the deceased was the driver of the other. The appellant did not work with P.W.6 from the end of

October, 1983, since he left for Madras. It appears that the appellant returned to Nazereth early in December, 1983 and requested P.W.6 to re-

appoint him as a driver but that request was turned down. It also appears that the appellant wanted P.W.1 to engage him as driver of his jeep,

which was not acceded to, since P.W.1 did not like the temperament of the appellant. About 10 days prior to this occurrence, it appears that the

appellant told P.W.2 that if the deceased did not make a job feasible for him, he would take away the head of the deceased. P.W.1 is a driver-

cum-owner of the jeep, he having purchased a jeep from P.W.6. It is, in this background that the incident on 25th December, 1983, the Christmas

day, is alleged to have taken place. At or about the time of occurrence, P.W.1 and the deceased were in conversation near the railway gate behind

the Bus stand at Nazereth when the appellant came and picked up a quarrel with the deceased. P.W.1 separated them. Thereafter, the deceased

and P.W.1 went towards the Bus stand and were near Rex Hotel. The time then would be about 7.30 P.M. The appellant came there with a

casuarina stick and beat the head and shoulder of Rajaguru. Soon thereafter, the appellant ran away with the casuarina stick and though P.W.1

shouted for help, for his being caught, the appellant made good his escape. P.W.5, who was then standing at the Bus stand, had seen the accused

running away with a stick towards east. The deceased sustained bleeding injuries and P.W.1 escorted him to the latter''s house. When P.W.1

visited the victim Rajaguru the next day at his residence, he had a bandage on his head. P.W.7, the wife of the deceased who had gone to the

church along with her mother-in-law on the evening of 25th December, 1983 returned home at 8.30 P.M. and found her husband Rajaguru with a

bandage on his head for the injuries sustained by him. The victim was in a state of swooning then and so P.W.7 took her husband to St. Luke''s

Hospital, Nazarath. The same night at about 9 P.M. P.W.8, the Medical Officer attached to St. Luke''s Hospital examined Rajaguru and found on

him 2 ""long deep cut over the scalp in the left temporal region about 21/2"" above the left ear. P.W.8 sutured the wound, administered drugs and

treated him as an out-patient. P.W.8 was informed that the injury on the victim was due to a fall from a Pandal while he was doing decoration

work at about 8 P.M. that day. The victim was regularly going to the hospital everyday for change of dressings. On 2nd January, 1984, the sutures

from the wound were removed by the Doctor P.W.8, who directed the victim to undergo certain further tests. Rajaguru refused to have further

investigations made. Again on 8th January, 1984 at about 1 A.M. Rajaguru was taken to P.W.8 in a state of partial unconsciousness by P. Ws.1

and 3. P.W.8 directed the relatives of Rajaguru to take him to the Tirunelveli Medical College Hospital, for further treatment. Ex.P2 is the case

report issued by P.Ws.8 and 9. The Assistant Surgeon attached to the Tirunelveli Medical College Hospital examined Rajaguru at 11.10 P.M. on

8th January, 1984. After perusing Ex.P3, the history of the case sent by St. Luke''s Hospital. P.W.9 found the victim unconscious though he was

shaking his hands and legs. He noticed a small healed scar above the left ear of the victim. Ex.P4 is the accident register issued by P. Ws.9 and 10,

Doctor Sarojini had X-ray pictures taken of the head of the victim at 11-20 P.M. on 8th January, 1984. MOs. 1 and 2 are the X-ray pictures

which did not reveal any fracture. P.W.11 another Civil Assistant Surgeon attached to the same hospital on noticing the death of Rajaguru at 6-45

A.M. on 9-1-1984, sent an intimation Ex.P6 to the hospital outpost Police station. P.W.14, the Head constable attached to the outpost police

station received Ex.P6 at 7-15 A.M. on 9 1-1984, madeanentry of the same in the general diary and gave a wireless message to the Nazerath

Police Station. Even at 11-30 P.M. on 8-1-1984 P.W.14 had received Ex.P10, the intimation from the hospital about the admission of Rajaguru

that night. Though P.W.14 had made a general diary entry on Ex.10, he did not take any further steps. P.W.15, the Head Constable, who was a

Station Writer at the Nazerath Police Station received the message from P.W.14 at 7.45 A.M. and directed a police constable to collect the death

intimation from P.W.14. Meanwhile at 9 A.M., P.W.1 appeared before P.W.15 and gave a statement which was recorded by P.W.15 and that is

Ex.P1, the first information report in this case. P.W.15 registered Crime No. 10/84 for an offence under S.302, I.P.C, on the basis of Ex.P1 and

P11 is the printed first information report. The copies of the printed first information Report were sent to the higher officials and the court P.W.17,

the inspector of Police, Sathankulam received the express first information report at 10 A M. on 9-1-1984, took over the investigation and

proceeded to the Palayamkottai Hospital at 12-00 Noon. He conducted the inquest on the dead body of Rajaguru between 12-30 Noon and 3

P.M. and Ex.P12 is the inquest report. He examined P. Ws.1, 2 and others during the inquest. At about 3 P.M., he sent the dead body of

Rajaguru through P.W.16 with a requisition Ex.P7, to P.W.12, the Medical Officer attached to the Tirunelveli Medical College Hospital to

conduct the postmortem. At 5-30 P.M., P.W.17 reached Nazerath and prepared Ex.P9, the observation mahazar relating to the scene of

occurrence. He also drew the scene sketch Ex. P13. He examined several witnesses during the course of investigation and learnt about the

surrender of the appellant before the Judicial Second Class Magistrate, Kovilpatti on 21-1-1984.

P.W.12, Dr. Chandrasekar conducted the postmortem on the body of the deceased at 4 00 P.M. on 9-1-1984 and found the following injuries

described by him in Ex.P8, the postmortem certificate issued by him.

Appearances found at the postmortem. Well nourished male body. Injury noted: 1.4 cm. long irregular scar on the left temporal - region of head 7

cm above the ear. On Dissectional Bruising of inner aspect of tissue of scalp in the left temporal region. Diffuse subdural and subarchaoid

haemorrhage over right cerebral hemisphere of brain. Coronaries: Patent Lung: congested. Stomach; contained 150 ml. bile stained fluid; Liver,

Spleen and Kidney; congested; Bladder empty.

Opinion as to cause of death:

The deceased would appear to have died of shock and haemorrhage due to injury to the head sustained by him.

P.W.12 opined that the deceased would appear to have died of shock and haemorrhage due to the injury to the head sustained by him,

After completing the investigation P.W.17 filed the final report on 15-5-1984 before the Judicial Second Class Magistrate, Srivaikundam.

The appellant when questioned under S. 313, Crl. P.C. on the evidence adduced against him, denied his guilt. He had stated that he was

working as a driver under P.W 1. While so, a vehicle was damaged in an accident and P.W.1 wanted the appellant to pay him Rs.1,500 towards

the loss sustained, but since the appellant was not able to do so, there was an altercation between him and P,W.1, which led to his leaving for

Madras from Nazerath. When he returned to Nazerath on 21-12-1983, P.W.1 had attempted to attack him by engaging goondas, and therefore

he left for Madras again on 23rd December, 1983, where he worked as a driver in Ravis Scented Stick Company, Madras. He was on tour at

outstations, on his job and when he returned to the village in January, 1984, he learnt that his parents had been kept in illegal custody at the police

station, which necessitated his surrender before the Judicial Second Class Magistrate, Kovilpatti.

The trial Court on a consideration of the oral and documentary evidence came to the conclusion that the appellant was not liable for murder but

was liable to be convicted for an offence under S. 304(II), I.P.C. Accordingly, a conviction was recorded and a sentence of five years rigorous

imprisonment was awarded.

Aggrieved by the conviction and sentence imposed by the trial Court, the appellant has preferred this appeal. Thiru S. Shanmugavelayutham,

learned counsel for the appellant submitted that the long delay of 15 days in setting the law in motion coupled with the earliest information furnished

to PW.8, the Medical Officer at St. Luke''s Hospital, Nazareth, that the cause of injury was due to fall from a pandal would indisputably portray

that the prosecution had not come out with the truth regarding the incident and the appellant would therefore be entitled to the benefit of doubt. In

the course of his arguments he would also submit that the victim Rajaguru was leading a normal life after this incident and was conversing with

people till his condition became serious on 8-1-1984, as revealed by his wife P.W.7. A passing reference was also made by him to the strange

conduct of P.W.7 in neither attempting to find out the cause of the injury on her husband nor trying to set the law in motion.

I have heard Miss. Thamaraiselvi appearing for the Learned Public Prosecutor on behalf of the State.

The point for consideration is as to whether the prosecution has established its case against the appellant beyond reasonable doubt.

The only eye witness to this incident is P.W.1. P.W.1 was not favourably disposed towards the appellant. Though according to him he had

seen this occurrence, he did not complain at the police station in spite of his awareness as a knowledgeable person that police action will have to

be initiated if a person had been attacked. P.W.1 has taken a cycle from a hire shop known to him to take the deceased to his house but would

not state anything to the owner of the cycle shop about the incident. P.W.1 had not informed about the act of the appellant to any one including the

inmates of his household. He admits that there was no reason for this conduct. Even on 8th January, 1984 when he reached the house of the victim

on information that he was serious, he found P.W.7 and the mother of the victim available there. Even then, he would not inform both of them that

the cause of the injury on Rajaguru was due to the beating by the appellant. Admittedly, he has not told the investigation agency about his having

taken the victim to the St. Luke''s Hospital. To crown all these, even on 9th January, 1984 after the unfortunate death of the victim, he did not

inform the mother and the wife of the deceased about the appellant being the cause, which led to the demise of the deceased. The conduct of

P.W.1 is opposed to the normal course of human conduct and there is no worthwhile reason offered as to why he did not set the law in motion

soon after the incident. The belated explanation offered in Court that a complaint was not given since the injury sustained by Rajaguru was simple

and the deceased himself was averse to such a course is hardly acceptable. It also passes one''s comprehension as to why P.W.7 was not keen in

finding out the cause of the injury on the head of her husband. If in fact the occurrence had happened as put forth by the prosecution, the victim

must have conveyed the details of the incident to his wife and mother, when it is admitted by P.W.7 that till the health of Rajaguru deteriorated on

8-1-1984, he was freely talking. Such information, which must have been conveyed to P.W.7, necessarily, must have prompted her to lodge a

complaint at the police station implicating the appellant. The nonperformance of these acts necessarily leads to an inference that in all probability the

victim Rajaguru had sustained the injury on his head due to fall from the pandal while he was doing decoration work at about 8.00 P.M. on the

occurrence day. If the injury on the victim was due to this cause, as reported to the Doctor P.W.8, it is apparent that there was no need to lodge a

complaint. Apart from Ex.P2, where the alleged fall from the pandal is mentioned, we have the oral evidence to the same effect by the Medical

Officer P.W.8, indicating that the author of the information was the mother of the deceased. P.W.17, the Investigating Officer, admits that P.W.8

told him during the investigation that the information of the fall from the pandal was furnished to him by the mother of the victim. It is also admitted

by P.W.17 that he had examined the mother of the victim during investigation and cited her as a witness in charge sheet but did not choose to

examine her in Court. If the theory of fall is plausible, it would also postulate the reason for the inaction of P.W.1 P.W.8, the Doctor who saw the

victim first and the Medical Officer, P.W.12 who conducted the postmortem concede the possibility of the injury found on the deceased having

been sustained by fall from the pandal. There is no fracture in the head injury but there was only a swelling and haematoma seen in the head. The

nature of the injury also probabilises the possibility of a fall from the pandal.

The evidence of P.W.2 who has been examined to speak about the motive does not inspire confidence. If, as stated by him, the appellant had

told him 10 days prior to this incident that he would remove the head of the deceased, one would expect him to inform the victim, his wife or

mother about it. He had not done so. Even after the occurrence, till his examination by the police he had not spoken about the threat. P.W.3, has

been examined to speak about his having escorted the victim to St. Luke''s hospital on 8-1-1984, and nothings turns out of his version. P.Ws.4

and 5 were examined to depose about the running away of the appellant from the scene with the weapon, soon after the incident. P.W.4 has not

supported the prosecution and he has been treated as hostile. Though, P.W.5 speaks about it, a reading of his evidence leaves the impression of

artificiality and does not commend itself for credence. He is himself involved in a hurt case and confesses that he does not know as to why the

accused ran like that. It is strange that he had chosen to identify a person who ran away at night time at a distance of 100 feet away from him. The

presence of P.W.5 near the scene appears doubtful. The Evidence of P.W.6, the erstwhile master of the deceased and the appellant does not

connect the latter with the crime. I have already discussed the evidence of P.W.7, the wife of the deceased and held that her conduct was opposed

to the normal course of human activity. P. Ws. 8 to 12 are the Medical Officers.

In the light of the discussion aforementioned, I am of the view that both the contentions of the learned counsel for the appellant will have to be

accepted. The need for setting the law in motion soon after the incident is of paramount importance in a criminal case. It will be a vital and valuable

piece of evidence to corroborate the oral evidence to be adduced during trial. The object of insisting upon a prompt lodging of the report is to

obtain early information not only regarding the assailants but also about part played by the accused, the nature of the incident and the availability of

witnesses. The delay in lodging the first information report, quite often results in confabulation and danger creeps in the possibility of a coloured

version after deliberation and consultation. It will be utterly unsafe to base a conviction upon such evidence, when the law was not set in motion

soon after the incident, but was delayed for over 14 days, though the police station was within a furlong from the scene of occurrence. Coupled

with these infirmities, the probability of the victim having sustained the injury in an accidental fall from the pandal cannot also be excluded. On the

totality of the circumstances unfurled in this case, the appellant is certainly entitled to the benefit of doubt.

In the result, the appeal is allowed and the accused is acquitted.