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Investigating Agency Duty-Bound To Identify Real Accused : Madras HC Directs Re-Postmortem In Custodial Death Case Where Autopsy Completed In Night Hours[Read Order]

Mehal Jain
31 July 2020 12:20 PM GMT
Investigating Agency Duty-Bound To Identify Real Accused : Madras HC Directs Re-Postmortem In Custodial Death Case Where Autopsy Completed In Night Hours[Read Order]
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The Madras High Court on Thursday directed the postmortem of a farmer in the Tenkasi district of the state, alleged to be a victim of custodial torture, to be conducted again, the postmortem having been earlier completed in night hours in violation of the set norms.

The order came after the Court had on Tuesday already called for the copy of the postmortem along with the video which was recorded during the time of postmortem.

"There are several questions that cross our minds most often and which are a little difficult to answer, but not impossible. One such question is, why postmortem of dead bodies is done during day and not at night?", wondered Justice R. Pongiappan.

The Single Judge explained that the answer is that the postmortem has to be done within the presence of sunlight, because the colour of the injury in tube light, CFL, LED's and other artificial illumination appears to be purple rather than red, and "as per forensic science, there is no mention of purple injury and wound".

"However, in some emergencies and special conditions/occasions such as, terrorism or urgent events like disasters, forensic doctors probably perform postmortem during the night and evening time", added the Court.

Placing reliance on the 2019 judgment of the Madras High Court in V. Eswaran's case and upon perusal of the Tamil Nadu Medical Code, the Single bench opined that if night postmortems are permitted, there may be a chance for miscarriage of justice and also it would lead to confusion over the cause of death. Further, the court asserted that after registering the case for the offence punishable under Section 176(1-A) of Cr.P.C., there was a "duty vested upon the investigating agency" to proceed with the investigation in correct path, "without showing any suspicious circumstance" in truthful manner for identifying the real accused.

The case of the petitioner, the wife of the deceased, is that, on 22.07.2020 at 11.00 p.m., around five forest officials came to her house and asked about her husband. When the petitioner's husband presented himself before them, without asking any question, they whisked him away in their official jeep for an enquiry to the Sivasailam Forest Office. They did not give any reason for such arresting at the time of taking her husband in their jeep. Subsequently, she came to know that it was a team headed by one Nellai Nayagam, who is the Forest Ranger,who took her husband for enquiry. After knowing the same, her son Natarajan and his brother-in-law viz., Arumugakumar went to Sivasailam Forest Office along with one Durai, in a car. While they were proceeding and approaching near the Sivasailam Bridge, they stopped their vehicle since a forest official's vehicle was coming from the opposite direction. The said forest official's vehicle carried the petitioner's husband in unconscious state, who was laid in the middle of the forest officials in the vehicle. When at the time, her son touched his father, there was no movement on his body. One of the Forest Officers had directed her son and his brother-in-law to get into the forest official's jeep and thereafter, the jeep proceeded to the Government Hospital, Kadayam, where her husband's pulse was found to have stopped. Subsequently, her husband was taken to the Government Hospital, Tenkasi, at 01.00 a.m. [23.07.2020], where the Doctors declared that her husband had been brought dead.

Suspecting that her husband was brutally tortured by the Forest Officials while he was in their custody, the petitioner, her family members and relatives refused to receive the body of the deceased. Thereafter, a complaint was registered on 23.03.2020, on the file of the Alwarkurichi Police Station, under Section 176(1)(A) of Cr.P.C., as a case of custodial death. After receipt of the F.I.R., the Judicial Magistrate came to the Hospital and conducted inquest. After examining the body of the deceased, the learned Judicial Magistrate noted 18 external injuries on the body and obtained signatures from the family members.

It is the grievance of the petitioner that postmortem was conducted in the night hours in the absence of Dr.Selva Murugan, who is the Senior Professor and Head of the Department of Forensic Medicine in Tirunelveli Government Medical College Hospital. "Since the case is a sensitive custodial death, there was no urgency to conduct the postmortem during the night hours", it is urged.

Before the High Court, it was submitted on behalf of the petitioner that the autopsy was not conducted by the medical officers as per the guidelines of the Apex Court, as well as those stipulated by the National Human Rights Commission.Besides,it was argued that in this case postmortem was conducted by the Doctors in the night hours, which is against the guidelines given in the Medical Code and also against the judgments of various Courts.

Per contra, the Public Prosecutor appearing for the State contended that after registering the case, the family members and the relatives of the deceased along with some political party resorted to sit in agitation at their Village. Hence, in order to avoid further assembling of crowd and creation of law and order problem, the Superintendent of Police, Tenkasi, sent a requisition letter to the District Collector, Tenkasi, to conduct the postmortem without any delay. Thereafter, the District Collector, sent a requisition letter to the Dean, Tirunelveli Medical College Hospital, Tirunelveli, for conducting an autopsy on the same day.

"Insofar as the present case is concerned, the reason stated by the respondents that in order to avoid law and order problem, the autopsy was conducted in the night, is not having much substance", concluded the Single Judge.

In such circumstances, the Court was of the view that the postmortem alleged to have been conducted in the night hours, is not proper, and hence, the request of the petitioner for conducting re-postmortem "is a reasonable and acceptable one".

Noting the submission on behalf of the state that two Professors from Tirunelveli Medical College Hospital can be appointed as Doctors, who can perform the postmortem between the time gap of sunrise and sunset on the body of the petitioner's husband, the bench also conceded to the request of the petitioner that one more Expert, who is also qualified can be allowed to perform the postmortem so that, the re-postmortem done will serve the purpose for which it is required.

"Hence,Dr. Selvamurgan, Head of the Department, Faculty of Forensic Medicine, Tirunelveli Medical College, Tirunelveli and Dr.P.Prasanna, Associate Professor, Faculty of Forensic Medicine, Tirunelveli Medical College, Tirunelveli, are appointed and they are directed to conduct re-postmortem on the body of the petitioner's husband along with another professional viz., Dr.Sudalaimuthu, Head of the Department, Faculty of Forensic Medicine, Thoothukudi Medical College, Thoothukudi", directed the bench.

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