IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 Crl.MC.No. 990 of 2011 ------------------------ CC.1283/2010 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... PETITIONER: ACCUSED ------------------------------- UMMAN SAMUEL, AGED 93 YEARS, S/O. UMMAN, RESIDING AT KANDAMATHU VEEDU, CHEMMANTHUR MURI, PUNALUR VILLAGE,PUNALUR. BY ADV. SRI.V.V.RAJA SRI.M.T.SURESHKUMAR SRI.RAJA VIJAYARAGHAVAN RESPONDENTS: COMPLAINANT ------------------------------------------------ STATE OF KERALA, THROUGH THE DEPUTY SUPERINTENDENT OF POLICE, CBCID, HSH WING, KOLLAM REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI. B. JAYASURYA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON 11/10/2011 PASSED THE FOLLOWING: MM Crl.MC.No. 990 of 2011 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE 1 COPY OF THE ACCIDENT REGISTER CUM WOUND CERTIFICATE WOUND CERTIFICATE PREPARED BY THE MEDICAL OFFICER SHANMUGHAVILAS HOSPITAL ON 31-8-2005 ANNEXURE 2 COPY OF THE POSTMORTEM CERTIFICATE DATED 08-09-2005 PREPARED BY Dr. SREEKUMARI, FORESIC SURGEON , M.C.H. THIRUVANANTHAPURAM ANNEXURE 3 COPY OF THE FINAL REPORT VIDE NO.1 OF 2010 DATED 30-1-2010 ANNEXURE 4 COPY OF 161 STATEMENT DATED 15-6-2007 OF CW22 RECORDED BY THE DYSP.CBCID ANNEXURE 5 COPY OF THE 161 STATEMENT DATED 03-11-2009 OF CW 22 RECORDED BY THE CBCID ANNEXURE 6 COPY OF THE ORDER DATED 7-3-2011 IN CP NO. 27 OF 2011 OF THE JFMC 111 PUNALUR RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A. TO JUDGE MM N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C. No. 990 of 2011 ------------------------------------------ Dated this the 11th day of October, 2011. O R D E R Petitioner is the sole accused in CC.1283/11 of JFCM-III, Punalur. The charge sheet was laid against him alleging commission of offences punishable under Sections 324 and 326 IPC. It is stated that PW1 to PW6 were examined. Thereafter, in view of the submission made by the learned APP that the evidence given by the witnesses disclosed the commission of offence punishable under Section 302 IPC, the learned Magistrate proceeded to commit the case to the court of sessions and refiled the case as C.P.27/11. The contention that as the charge sheet was laid only under Sections 324 and 326 IPC, the learned Magistrate cannot commit the case to the court of sessions cannot be sustained if an offence triable exclusively by the court of sessions is made out during trial. But in order to proceed further in the matter in the peculiar circumstances Crl.M.C. No. 990 of 2011 2 of the case the doctor who conducted the postmortem examination has to be examined by the learned Magistrate. If the doctor deposes that the cause of death was due to the injuries sustained by him then the case may have to be committed to the court of sessions. If the doctor opines otherwise the position may be different. It was pointed out by the accused that the statement of the doctor recorded by the police under Sec. 161 of Cr.P.C would indicate that there was no evidence to suggest that the injuries had caused the death of the victim in that case. But at the same time it was also mentioned that there was severe bleeding from the ruptured blood vessel seen at the lower end of the oesophagus. It is in these circumstances the examination of the doctor who conducted the postmortem is to be done first. As such the order of committal passed by the learned Magistrate has to be set aside. The learned Magistrate will examine the doctor who conducted the postmortem examination on the body of the deceased and then pass Crl.M.C. No. 990 of 2011 3 appropriate orders. It is needless to say that if the death was caused due to the injuries caused to the victim then certainly the learned Magistrate will commit the case to the court of sessions following the procedure prescribed. In the result, this petition is allowed to the extent indicated above. The order of committal passed by the learned Magistrate is set aside. If the case records have already been forwarded to the learned Sessions Judge, the learned Sessions Judge will retransmit the records to the learned Magistrate. The learned Magistrate shall dispose of the matter in the light of what is stated above. N.K. BALAKRISHNAN, JUDGE smvd