Judgment :- N. Dhinakar, J. The appellants are accused 1, 2, 3 and 5 in Sessions Case No.55 of 1999 and they were tried before the II Additional Sessions Judge, Salem along with one R. Kuppuraj, who was arrayed as the fourth accused in he said Sessions Case. In this judgment the appellants and R. Kuppuraj, who was arrayed as the fourth accused, will be referred to as accused 1 to 5, in the same order as they were arrayed before the Sessions Judge, for the sake for convenience. 2. Charge No.1 was framed against accused 1, 2 and 5 under Section 302 read with 34 of the Indian Penal Code. The allegation in the said charge is that they shared the common intention of each other to cause the death of Stephen @ Ravi, the deceased in this case, and in furtherance of the said common intention accused 2 and 5 held Stephen and that the first accused beat him with a wooden stick (Lathi), as a result of which the said Stephen died on the same day, i.e., on 21.06.1995 at 06.15 pm. Charge No.2 was framed against accused 3 and 4 under Section 302 read with 149 of the Indian Penal Code on an allegation that they shared the common object of accused 1, 2 and 5 in causing the death of Stephen. Charge No.3 was framed against accused 1 to 5 under Section 201 of the Indian Penal Code on an allegation that with a view to screen the offence, the deceased was taken to the hospital. (In Charge No.1 the learned Sessions Judge did not mention the time and date of occurrence and in charge No.3, he did not mention the nature of the act committed by accused 1 to 5, which will attract an offence under Section 201 of the Indian Penal Code). 3. The learned trial Judge, finding accused 1, 2 and 5 guilty under Section 302 read with 34 of the Indian Penal Code, sentenced each one of them to undergo imprisonment for life and directed each one of them to pay a fine of Rs.1,000/-, with a further direction that in default of payment of fine, they should undergo simple imprisonment for six months. The third accused was found guilty under charge No.2 under Section 302 read 149 of the Indian Penal Code, for which a similar sentence was imposed upon him, while the fourth accused was acquitted of the said charge. Under charge No.3, accused 1 to 3 and 5 were found guilty under section 201 of the Indian Penal Code and sentenced to rigorous imprisonment for one year, while the fourth accused was acquitted of the said charge also. There was a further direction that the substantial sentence of imprisonment will run concurrently. The present appeal is filed by accused 1 to 3 and 5 challenging the said conviction and sentence. 4. It is submitted that after the filing of the appeal, the second accused, who is the second appellant in this appeal, died on 17.05.2001 at Coimbatore Medical College Hospital and the death was registered with the Registrar of Birth and death, Coimbatore Municipal Corporation. The Revenue Divisional Officer, Namakkal, has addressed a letter to the Public Prosecutor of Madras High Court, enclosing the certificate issued by the Registrar of Birth and Death, Coimbatore Municipal Corporation, which is produced before us. As the second accused died pending appeal, the appeal as against him, abates. The certificate of the Registrar of birth and death along with the letter of the Revenue Divisional Officer shall form part of the records of this appeal. 5. Therefore, this court has to consider the appeal only in respect of accused 1, 3 and 5. 6. The facts are: One K. Pappu gave a complaint at Namakkal police station on 20.06.1995 at 08.30 pm, which was registered as a crime in crime No.621/1995 and the printed first information report in the said crime is Ex.D.7. The allegation in the said complaint is that at about 07.30 p.m. on 20.06.1995 when the said Pappu was sitting in front of the house, two persons came in a motor cycle and one of them after alighting from the motor cycle, suddenly snatched the gold chain from her neck, weighing 5 ½ sovereigns and thereafter, both escaped from the place in the motor cycle. On the same day another complainant by name Rajammal gave a complaint at the same police station on an allegation that at 08.30 pm when she was walking on the road near her house, two persons who came there in a motor cycle. On the same day another complainant by name Rajammal gave a complaint at the same police station on an allegation that at 08.30 pm when she was walking on the road near her house, two persons who came there in a motor cycle. The pillion rider in that motor cycle, got down and after kicking the complainant, snatched her gold chain weighing 7 ½ sovereigns and escaped from the place in the motor cycle. The said complaint was registered as a crime in crime No.622/1995 at 10.00 pm. Ex.D.6 is the printed first information report in the said crime. 7. P.W.11, the Inspector of Police, attached to Namakkal Police Station during the relevant period, took up investigation in the two crimes, visited the scenes of occurrence and suspected the involvement of the deceased Stephen and Ashok Kumar, who is examined as P.W.10 in this case. On an information that Stephen and Ashok Kumar were staying in the house of P.W.3, Mrs. Margarette, the aunt of Stephen, P.W.11 went there, but he could not find them there. He instructed the neighbours of P.W.3 and other members in the locality to inform the police authorities, if there is any movement of the suspect accused, namely Stephen and Ashok Kumar and he returned to the police station. Thereafter, he directed the first accused, who was then the Sub Inspector of Police, Namakkal Police Station, to take steps to apprehend the two suspect accused, namely, Stephen, the deceased and Ashok Kumar, P.W.10, 8. P.W.10, a cleaner, ostensibly, by profession, after taking beer at about 10.30 pm on 20.06.1995, was sitting at the bus stand. The deceased Stephen, who came there, talked to P.W.10, who was known to him. The deceased informed P.W.10 that he has brought some banians from Thirupur and wanted to stay in the house of his aunt, P.W.3 and informed P.W.10 that he also could come and stay in his aunt’s house. Thereafter, the deceased Stephen and P.W.10 Ashok Kumar went to the house of P.W.3, Mrs. Margarette. They reached the house of P.W.3 at night. During that night, Stephen informed P.W.10 that police will arrest him, if he remains there. At about midnight P.W.3, the aunt of the deceased Stephen, heard someone knocking the doors. She went and opened the doors and found four or five police officers standing at the door steps. Margarette. They reached the house of P.W.3 at night. During that night, Stephen informed P.W.10 that police will arrest him, if he remains there. At about midnight P.W.3, the aunt of the deceased Stephen, heard someone knocking the doors. She went and opened the doors and found four or five police officers standing at the door steps. They informed P.W.3 that Stephen is involved in chain snatching cases and he is wanted. P.W.3 sent them off by telling them that Stephen is not at home that he went away to his native place. The police officials left the house of P.W.3. On hearing the noise and coming to know that the police officers are standing at the doors, P.W.10 and Stephen, jumped from the backside of the compound wall and ran away. After the deceased Stephen and P.W.10 went away and after sending away the police officials, P.W.3 searched the house and found a bag and inside the bag she found a gold chain. 9. While the matter stood thus, P.W.10 and the deceased, after spending the night at various places, reached Valayapatti at 06.30 a.m. P.W.10 asked Stephen as to why he is wanted by the police, for which Stephen told him that he and his friend snatched gold chain on the previous day and that his friend ran away to coimbatore. He also informed P.W.10 that if he remains there, he will be caught by the police and that he intends going to Coimbatore. He also advised P.W.10 to go to Namakkal. P.W.10 told Stephen that his clothes were left in the house of P.W.3 and therefore, he compelled the deceased to go along with him to the house of P.W.3, so that he could collect his clothes. Accordingly, the deceased Stephen and P.W.10 proceeded to Elurpatti village with a view to go to the house of P.W.3. They alighted at the bus stop. The people at the bus stop, on seeing Stephen, shouted “thief, thief”. Stephen and P.W.10 ran and were chased and apprehended by the public. They were beaten by persons who apprehended them. P.W.10 told the pubic that he is in no way connected with the crime. Therefore, they left him, but continued to beat Stephen. 10. The people at the bus stop, on seeing Stephen, shouted “thief, thief”. Stephen and P.W.10 ran and were chased and apprehended by the public. They were beaten by persons who apprehended them. P.W.10 told the pubic that he is in no way connected with the crime. Therefore, they left him, but continued to beat Stephen. 10. In the meantime, P.W.3, finding the bag in the house with a gold chain inside, went to the police station along with her husband P.W.4, Nova and handed over the said bag with the chain to the Sub Inspector of Police, the first accused in this case. The bag and the gold chain were seized under a mahazar, Ex.D.10 at 10.30 am. Thereafter, accused 1, 3 (Grade I Woman Police constable) and accused 5 (Grade I Police Constable) went to the Elurupatti Village to find out whether any other articles are in the house of P.W.3. P.Ws.3 and 4 on returning to the village came to know that Stephen, the deceased and P.W.10 have been apprehended by the villagers. 11. The deceased Stephen and P.W.10, who were apprehended by the public, were handed over to P.W.5, the Village Administrative Officer of Elurpatti village by the public while he was at village chavadi. P.W.5 sent an intimation to Namakkal police station through his Assistant Karuppiah about the apprehension of two persons. In the meantime, the police officers who reached Elurpatti, on coming to know that Stephen and another person were apprehended by the public and kept at village chavadi, went there. The officers, who went to the village were accused 1, 2, 3 and 5. P.W.5 handed over the deceased Stephen and Ashok Kumar, P.W.10 to accused 1, 2, 3 and 5. The first accused examined Stephen at Chavadi and a statement was given by him at 01.30 pm. The said statement is marked as Ex.D-11. P.W.5 affixed his signature. The deceased Stephen produced two gold chains. They were seized under a mahazar, Ex.D.12 at 02.30 pm attested by witnesses. Thereafter, accused 1 to 3 and 5 took the deceased and P.W.10 to Namakkal police station in a car and reached there by 04.00 pm on the same day. 12. The first accused, the Sub Inspector of Police, took Stephen and P.W.10 to his room and enquired. They were seized under a mahazar, Ex.D.12 at 02.30 pm attested by witnesses. Thereafter, accused 1 to 3 and 5 took the deceased and P.W.10 to Namakkal police station in a car and reached there by 04.00 pm on the same day. 12. The first accused, the Sub Inspector of Police, took Stephen and P.W.10 to his room and enquired. The first accused questioned Stephen to find out as to where he has committed theft of gold chains, which he had produced and also a gold chain, which was handed over to him by P.W.3 and seized under a mahazar, Ex.D.10. While being interrogated, according to the first accused, the deceased got up, rammed his head against the bottom portion of the window on account of which he became unconscious and fell down. The first accused lifted Stephen and found blood oozing out from his left ear. Stephen was, thereafter, taken to the Government Hospital, Namakkal and produced before P.W.8, Dr. Mohan, attached to the hospital with a memo, Ex.D.2. 13. The doctor, P.W.8 examined Stephen at 05.40 pm on 21.06.1995 and found contusions and abrasions on his person. Ex.P.1 is the copy of the accident register, wherein the doctor has noted the following injuries found on Stephen: 1. Diffuse contusion over left forearm. 2. Diffuse contusion over left temporal region with bleeding from the left ear. 3. A diffuse contusion over right elbow. 4. A diffuse contusion over right foot. 5. A diffuse abrasion over left forearm. 14. Thereafter, the first accused left the hospital and reached the police station and started questioning P.W.10. In the meantime, Stephen died at 8.00 pm and the death intimation was received by the first accused. On receipt of the death intimation, the first accused registered a case in crime No.625/1995 under Section 174 of the Code of Criminal Procedure. Ex.P.6 is the copy of the printed first information report. He sent the case file to the Sub Collector, Namakkal for investigation. P.W.11, the Inspector of Police, Namakkal Police Station, who was on bandobasth duty, returned to the police station at 06.30 pm. He was informed that a first information report has been registered in connection with the death of Stephen. P.W.11, in order to prevent tension in the locality, took up bandobasth duty. 15. P.W.11, the Inspector of Police, Namakkal Police Station, who was on bandobasth duty, returned to the police station at 06.30 pm. He was informed that a first information report has been registered in connection with the death of Stephen. P.W.11, in order to prevent tension in the locality, took up bandobasth duty. 15. In the meantime, as P.W.10 also had injuries on his person, he was also produced before P.W.8, the doctor at 09.50 pm and on examining him, the following injuries were noted: 1. A diffuse contusion over left elbow. 2. A diffuse abrasion over left knee joint. 3. A diffuse contusion over the hip region. 4. A diffuse contusion over right thigh. Ex.D.3 is the copy of the accident register issued by him. Ex.D.1 is the memo, issued by the first accused, which was sent to the doctor when he sent P.W.10 to the hospital. 16. On 21.06.1995 the Revenue Divisional Officer, Namakkal contacted P.W.16 over phone and informed him that Stephen died in police custody and his body is at the Government Hospital, Namakkal. P.W.16 went to the hospital and found Stephen’s dead body there. At about 04.45 am on 22.06.1995 Ex.P.6, which is a copy of the printed first information report, registered by the first accused, was handed over to P.W.16. He conducted inquest over the dead body of Stephen between 08.15 am and 11.30 am by examining witnesses. Inquest report is Ex.P.7. After the inquest, P.W.16 gave a requisition Ex.P.2 to the Medial Officer requesting him to conduct autopsy on the dead body of Stephen. 17. P.W.9, Dr. Muthulakshmi, the Assistant Surgeon, attached to the Government Hospital, Namakkal and Dr. Shyamala attached to the said hospital, on receipt of Ex.P.2, requisition conducted postmortem on the body of Stephen at 01.30 pm on 22.06.1995. They found the following external and internal injuries: External Injuries. 1. A diffuse contusion over the left temporal region with clotted blood in the left auditory canal and pinna of the left ear. 2. A diffuse contusion with bluish black discolouration over the left shoulder over which an abrasion 2 cm x 1 cm over the anterior aspect of the shoulder and another abrasion 1.5 x 0.5 cms over the lateral aspect of the shoulder. 3. A diffuse swelling over the left wrist with an abrasion 2 cm x 2 cm. 4. 2. A diffuse contusion with bluish black discolouration over the left shoulder over which an abrasion 2 cm x 1 cm over the anterior aspect of the shoulder and another abrasion 1.5 x 0.5 cms over the lateral aspect of the shoulder. 3. A diffuse swelling over the left wrist with an abrasion 2 cm x 2 cm. 4. A diffuse contusion with an abrasion 2 x 2 cm over the anterior aspect of upper 1/3rd of left lower leg 10 cms below knee. 5. An abrasion 2 cm x 0.3 cm running transversely just above the left iliac chest. 6. A bluish black diffused contusion all over the right shoulder with an abrasion 4 cms x 0.3 cm running downwards. 7. A diffuse contusion with bluish black discoluration all around the right elbow. 8. A diffuse swelling over the right wrist and all over the dorsal aspect of the right hand. 9. An abrasion 1 cm x 1 cm over the upper 1/3 of right lower leg 7 cm below the knee. 10. A diffuse contusion with bluish black discoluration over the right foot. Internal Examination: 1. On dissection of injuries, blood and blood clots found underneath the injuries No.1, 2, 3, 4, 6, 7, 8, 9 and 10 and all are ante mortem. Injury No.5 is postmortem. 2. On dissection of injury No. one blood and blood clots found over the frontal, parietal and occipital region of the scalp. 3. On dissection of injury No.8 fracture of neck of third metacarpal bone found. 4. On dissection of injury No.4 and 9 periosteum over the tibie was crushed along the line of injury. Head: On opening the scalp blood and blood clots found over the membranes and there was a fracture line in the mid cranial fossa starting from the base of the skull and running towards the right parietal bone. About 50 ml of blood and blood clots fund on the cranial cavity. THORAX: Thoracic viscera are normal on position and pale in colour. Heart: Empty. Abdomen: Abdominal viscera are normal in position and pale in colour. Stomach distended and contains 30 ml of coffee coloured fluid. Bladder empty. Hyoid bone intact. The postmortem certificate issued by them is Ex.P.3, reserving their opinion pending report of the chemical analysis. THORAX: Thoracic viscera are normal on position and pale in colour. Heart: Empty. Abdomen: Abdominal viscera are normal in position and pale in colour. Stomach distended and contains 30 ml of coffee coloured fluid. Bladder empty. Hyoid bone intact. The postmortem certificate issued by them is Ex.P.3, reserving their opinion pending report of the chemical analysis. On receipt of the report of the chemical analysis, who examined the viscera, the doctors gave their final report under Ex.P.5 that the death was on account of shock and intracraniel haemorrhage due to head injury and death would have occurred 12 to 24 hours prior to their autopay. 18. On 22.06.1995 P.W.10 was produced for remand before the Judicial Magistrate No.I, Namakkal. Ex.D.4 is the copy of the remand order. P.W.10 complained that he had pain all over the body and also informed the Magistrate that he was beaten by the public. 19. P.W.16, the Sub Collector, sent a letter, Ex.P.8, to the District Collector on 22.06.1995 requesting for issuance of orders for inquiry under Section 145 of the Police Standing Orders. P.W.16 took up investigation as per Section 145 of the Police Standing Orders. He visited the police station inspected the place as well as the room of the Sub Inspector of Police (the first accused). He noticed that the window was at a height of 3½ feet from the floor level with iron rods in cross direction. P.W.16 sent his final report, Ex.P.9 on 10.7.1995. Ex.P.10, Government Order dated 19.07.1996 was issued by the Government for taking criminal action against the police personnel involved. P.W.17, the Revenue Divisional Officer, Namakkal, on receipt of the reports from the Sub Collector and Ex.P.10, Government Order, filed a private complaint against accused 1 to 5 before the Judicial Magistrate, Namakkal on 20.07.1997, which was taken on file under Sections 302 read with 34 and 201 of the Indian Penal Code. Ex.P.11 is the said private complaint. 20. The learned Magistrate, after taking the case on file, and after conducting enquiry under Section 202 of the Code of Criminal Procedure and after the copies were furnished, committed the case to Court of Sessions, Salem. During the trial P.Ws.1 to 17 and D.W.1 were examined as witnesses. Exs.P.1 to P.11 and Exs.D1 to D.12 were marked as exhibits. 21. The accused were questioned under Section 313 of the Code of Criminal Procedure. During the trial P.Ws.1 to 17 and D.W.1 were examined as witnesses. Exs.P.1 to P.11 and Exs.D1 to D.12 were marked as exhibits. 21. The accused were questioned under Section 313 of the Code of Criminal Procedure. The first accused denied all the incriminating circumstances. In the written statement filed by him he has stated that in crime No.622/1995, the de facto complainant Rajammal has alleged that the pillion rider of the motor cycle fell down while he was attempting to get on to the motor cycle after snatching the chain and he got up and later both persons fled away from the place. The first accused while narrating as to how Stephen and P.W.10 were taken into his custody from P.W.5 after they were apprehended by the villagers, came out with a version that the deceased, while being interrogated, suddenly rushed towards the window in his room and dashed his head against the bottom portion of the window and thereafter, as he was sliding towards the floor he (first accused) held him to prevent him from falling down. According to him when he examined the deceased, he was found unconscious and that after giving first aid, he was sent to the Government Hospital in an auto through the police Constable Doraiswamy and that he also accompanied the injured to the Hospital. He has further stated that on receipt of the death intimation at 08.00 pm he registered a case in crime No.625 of 1995 under Section 174 of the Code of Criminal Procedure. According to him, when he took the deceased into his custody, he did not notice any external injury and that the deceased suffered an injury on the head only on account of his ramming his head against the bottom portion of the window. He has further stated that the other external injuries suffered by Stephen came to his knowledge only after he examined P.W.10. He has also alleged that on account of unruly elements creating disturbances in the locality, the Sub Collector did not properly conduct the enquiry and the complaint filed by him is against the truth. He has further stated that the other external injuries suffered by Stephen came to his knowledge only after he examined P.W.10. He has also alleged that on account of unruly elements creating disturbances in the locality, the Sub Collector did not properly conduct the enquiry and the complaint filed by him is against the truth. He has further alleged that P.Ws.1 to 5, 7 to 10 and 12 have not made any allegations against him and that, the Sub Collector, P.W.16 was afraid of the anti social elements, who were found shouting outside the building, when the enquiry was going on and he gave the said report against him and other officials holding that he is responsible for the injury found on Stephen. The other accused also filed written statements on the same lines. 22. Learned counsel for the appellants submits that since the deceased rammed his head against the bottom of the window, he suffered an injury on the head, which unfortunately, proved fatal and therefore, the first accused was unjustifiably found guilty by the trial Judge and punished under section 302 read with 34 of the Indian Penal Code. 23. It is his further submission that there is absolutely no evidence against accused 3 and 5 as P.W.10, the only witness, who was present at the time of interrogation of Stephen, did not whisper a word that accused 3 and 5 participated in the interrogation and that he did not even say that they were present in the room when the Sub Inspector was interrogating Stephen. 24. It is the further submission of the learned counsel that the trial Jude, not having framed the charge under Section 201 of the Indian Penal Code against any of the accused by mentioning the nature of act committed by him, which would attract section 201 of the Indian Penal Code and in the absence of any questioning under Section 313 of the Code of Criminal Procedure, as regards the offence under section 201 of the Indian Penal Code, the appellants are entitled for an acquittal under the said charge. 25. We have heard the learned Government Advocate and perused the recorded evidence. 26. 25. We have heard the learned Government Advocate and perused the recorded evidence. 26. It is an admitted case of both sides that Stephen, the deceased and P.W.10, Ashok Kumar were apprehended at about 11.00 am at Elurpatti Village bus stand by the public and they were handed over to P.W.5, the Village Administrative Officer. It is also not in dispute that an intimation was sent to the police authorities by P.W.5, the Village Administrative Officer and on receipt of the said intimation, accused 1, 2, 3 and 5 took the deceased Stephen and P.W.10, Ashok Kumar into police custody at village chavadi. It is also not in dispute that both the deceased Stephen and P.W.10 were questioned and the statement of the deceased Stephen and P.W.10 were questioned and the statement of the deceased was recorded at the Village chavadi at 01.30 pm. It is also not in dispute that at the time when Stephen was questioned he produced gold chains and thereafter, he was taken to the police station along with P.W.10. It is also not in dispute that after the deceased and P.W.10 were taken to the police station, the first accused took them to his room and started interrogating. On the above undisputed facts, we have to consider whether the deceased Stephen suffered the fatal injury at the hands of the first accused or he suffered an injury on account of his ramming his head against the bottom portion of the window, as claimed by the first accused, in his statement under Section 313 of the Code of Criminal Procedure. 27. To find out an answer for the above question, we have to look at the evidence of P.W.10 and the evidence of the doctors, namely, P.W.8, the doctor, who initially treated Stephen and P.W.9, the doctor, who conducted autopsy along with Dr. Shyamala. P.W.10, who was the co-accused of Stephen in the theft cases, was taken into custody in this case in connection with the two crime numbers 621/1995 and 622/1995, which were registered earlier at Namakkal Police Station. P.W.10, in his evidence, has stated that after he and Stephen were taken to the police station, both of them were taken to the room by the first accused. According to him, the first accused questioned Stephen as to whether he committed theft of one gold chain, produced by his aunt. P.W.10, in his evidence, has stated that after he and Stephen were taken to the police station, both of them were taken to the room by the first accused. According to him, the first accused questioned Stephen as to whether he committed theft of one gold chain, produced by his aunt. According to him, the said Stephen rushed towards window and rammed his head against the bottom portion of the window, slided and fell down. According to him, on account of the head coming into contact with the bottom portion of the window, Stephen suffered an injury and became unconscious. This evidence of P.W.10 is to be taken with a pinch of salt. It looks as if P.W.10 was more loyal than king. It also looks, he was trying to support the police officials and had come out with such a version, not only to save the first accused in this case, but also to save himself from the wrath of the police officials, as he was taken into custody in respect of two crime Nos.651 and 652/1995. 28. This evidence of P.W.10 is to be tested, as we stated earlier, in the background of the evidence of P.W.8, the doctor who initially examined the victim Stephen and P.W.9, the doctor who conducted autopsy on the body of the deceased Stephen. We have also referred to the evidence of P.W.8 and also extracted the injuries found on the deceased by P.W.8. Ex.P.1 is a copy of the accident register issued by him. It can be seen from Ex.P.1, that the doctor noted four contusions and one abrasion. One contusion was found on the left forearm. Another contusion was on the left temporal region with bleeding from the left ear. The third contusion was found on the right elbow. A contusion was also noticed on the right foot. P.W.9, Dr. Muthulakshmi, the doctor, who conducted autopsy along with Sr. Shyamala found as many as ten injuries on the dead body. On dissection of injuries, P.W.9 and Dr. Shyamala found blood clots beneath injuries 1 to 4 and 6 to 10. On dissenting injury No.8 they found fracture of neck of third metacarpal bone. P.W.9, Dr. Muthulakshmi, the doctor, who conducted autopsy along with Sr. Shyamala found as many as ten injuries on the dead body. On dissection of injuries, P.W.9 and Dr. Shyamala found blood clots beneath injuries 1 to 4 and 6 to 10. On dissenting injury No.8 they found fracture of neck of third metacarpal bone. The doctors also, on dissection, found, beneath injuries No.4 and 9, that tibia was crushed over periosteum and on opening he skull, blood and blood clots were found over the membranes and a fracture line in the mid cranial forssa starting from the base of the skull and running towards the right temporal region. The postmortem certificate and the evidence of the doctor, therefore, shows that injury No.1 was on the left temporal region of the deceased. 29. In this background when we consider the statement of the accused and the other materials, we find it difficult to accept that the first accused did not notice any injury when he took Stephen into custody at village chavadi, on being handed over by P.W.5, the Village Administrative Officer. It is an admitted case that Stephen and P.W.10 were apprehended by public and they were beaten and were handed over to P.W.5. The injuries, which P.W.8 noted on the person of Stephen and the other injuries, which the doctor, P.W.9 found at the time of autopsy on the dead body of Stephen show that almost all injuries were on parts which could have been visible to a naked eye and therefore, it cannot lie in the mouth of the first accused to say that he did not notice any injury on the person of Stephen when he took him to custody and therefore, he did not send him to hospital. 30. It is an admitted fact that the first accused knew that Stephen was beaten by the public and any police officer, worth his salt, would have certainly taken him to the hospital to find out the nature of the injuries suffered by him immediately on apprehending him. 30. It is an admitted fact that the first accused knew that Stephen was beaten by the public and any police officer, worth his salt, would have certainly taken him to the hospital to find out the nature of the injuries suffered by him immediately on apprehending him. Police standing Order 642(2) of the Madras Police Standing Orders contemplates that whenever a prisoner arriving at a police station, is found to be ill and having any injury on his person, the same should be fully and carefully recoded in the Station General Diary, preferably in the presence of two respectable witnesses, who should be requested to attest the relevant entry in the General Diary. It is an admitted fact that no entry was made in the General Diary that the first accused noticed injuries on Stephen and P.W.10. It is also an admitted fact that the first accused did not take any steps to send the injured Stephen to the hospital immediately after he took him to custody. 31. The Supreme Court in the case of D.K. Basu v. State of West Bengal, 1997 SCC (Cri) 92, laid down certain guidelines to be followed in all cases of arrest till legal provisions are made in that behalf, as preventive measures. One of the guidelines is that the arrestee should, wherever he is so requested, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. It is no doubt true that on request, the arrestee should be examined, but the Supreme Court nowhere said that when a person is arrested and if injuries are found on his person, the officer is not expected to take him to the hospital, unless there is a request from the arrestee. 32. In this case, we have already observed that since the first accused knew that the deceased Stephen was beaten by the public, he should have taken care to take him to the hospital to have him treated for the visible or invisible injuries which would have been on the person of Stephen. 32. In this case, we have already observed that since the first accused knew that the deceased Stephen was beaten by the public, he should have taken care to take him to the hospital to have him treated for the visible or invisible injuries which would have been on the person of Stephen. In fact, the injuries noted by P.W.8, the doctor who treated Stephen and P.W.9, the doctor who conducted autopsy on the body of Stephen, show that many of the injuries were on the hands and legs and those injuries must have certainly been visible to the first accused and he cannot feign ignorance by stating that as he did not know that Stephen suffered injuries, he was not taken to the hospital immediately and was taken to the police station. 33. In any event, the undisputed fact remains that Stephen was taken to the police station and interrogated in the room belonging to the first accused, by him. The first accused also did not dispute either before the trial Court or before this Court that the fatal injury, which is noted as injury No.1 in the postmortem certificate, Ex.P.3, was suffered by Stephen at the police station. The only explanation given by the first accused is that the deceased suffered the said injury when he rammed his head against the bottom portion of the window while he was being interrogated. To say the least, we find the said explanation is too tall a story for this Court to accept. It can be seen from the postmortem certificate that injury No.1 is on the left temporal region. If a person rushes towards a window and rams his head against the grill or against the bottom portion of the window, then he should have suffered an injury only on the upper part of the head and not on his temporal region. It is also impossible to believe the evidence of P.W.10 that after the deceased rammed his head against the bottom portion of the window, he was sliding down and was held by the first accused. It is also impossible to believe the evidence of P.W.10 that after the deceased rammed his head against the bottom portion of the window, he was sliding down and was held by the first accused. The first accused had come out with an explanation from which he wants this Court to presume that the injury on left temporal region would have been sustained by the deceased, while he was sliding down from the bottom portion of the window, by ramming his head against it, which was at a height of 3 ½ feet from the floor level. In view of the admitted fact that the deceased Stephen suffered an injury inside the room of the first accused and taking into consideration the nature of injuries suffered by him, it is impossible for anyone to accept the defence theory that injury No.1 would have been suffered by the deceased on account of his head sliding down after ramming his head against the bottom portion of the window. We, therefore, reject the defence theory. 34. The occurrence having taken place inside the room of the first accused, it is for him to explain and if that explanation is found to be false, the Court has to presume that he has caused the injury to the deceased and had come out with a false version with a view to save himself. In this context, useful reference can be made to the two judgments of the Supreme Court. In Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, 2003 SCC (cri) 1918, the Supreme Court, while dealing with the provisions of sections 330 and 331 of the Indian Penal Code and referring to the recommendations of the 113th report of the Law Commission, stated that ‘the Law Commission recommended amendment to Indian Evidence Act so as to provide that in the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the persons was in the police custody, the Court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary.’ The Supreme Court further observed that ‘the onus to prove the contrary must be discharged by the police official concerned. Keeping in view the dehumanizing aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime, and the growing rise in crimes of this type, where only a few come to light and others don’t the Government and the Legislature must give serious thought to the recommendations of the Law Commission and bring about appropriate changes in the law not only to curb custodial crime, but also to see that custodial crime does not go unpunished.’ The Supreme Court also sounded a note of caution to the Courts that the Courts are also required to have a change in their outlook, approach, appreciation and attitude, particularly in cases involving custodial crimes and they should exhibit more sensitivity and adopt a realistic, rather than a narrow technical approach, while dealing with the cases of custodial crime, so that as far as possible within their powers, the truth is found and the guilty should not escape so that the victim of the crime has the satisfaction that ultimately the majesty of law has prevailed. The Supreme Court in the case of State of M.P. Vs. Shyamsudner Privedi, 1995 SCC (cri) 715. The Supreme Court cautioned that the Courts should not adhere or ask for exaggerated adherence to and insist upon the establishment of proof beyond every reasonable doubt by the prosecution ignoring the ground realties, the fact situations and the peculiar circumstances of a given case which will result not only in miscarriage of justice, but also makes the justice delivery system a suspect. In the view of the Supreme Court, in the ultimate analysis the society suffers and a criminal gets encouraged. Tortures in police custody, which of late are on the increase, receive encouragement by this type of an unrealistic approach of the courts because it reinforces the belief in the mind of the police that no harm would come to them, if an odd prisoner dies in the lock-up because there would hardly be any evidence available to the prosecution to directly implicate them with the torture. The Supreme Court went on to add that the Courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. The Supreme Court went on to add that the Courts must not lose sight of the fact that death in police custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excess and the maltreatment of detainees/under-trial prisoners or suspects tarnishes the image of any civilized nation and encourages the men in ‘Khaki’ to consider themselves to be above the law and sometimes even to become law unto themselves. In the view of the Supreme Court, unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken and the civilization itself would risk the consequence of hearing towards perishing. The Courts must, therefore, deal with such cases in a realistic manner and with the sensitivity, which they deserve, otherwise, the common man may lose faith in the judiciary itself, which will be a sad day. 35. On the discussion which we have earlier made and taking into consideration the principles laid down by the Supreme Court in the above judgments, we are of the view that the explanation offered by the first appellant for the injury found on the deceased cannot be accepted and hence the conviction of the first appellant has to be upheld. 36. The contention of the learned counsel for the appellants that the first accused could have caused the said injury without any intention and therefore he may be convicted for a lesser offence, namely, 304 part (ii) of the Indian Penal Code, has to be stated only to be rejected. Learned counsel for the appellants placing reliance upon the decision of the Supreme Court in the case of State of M.P. Vs. Shyamsudner Trivedi, 1995 SCC (cri) 715, submits that the first accused must have inflicted the said injury without any knowledge or intention and therefore, he should be convicted only under section 304 (ii) of the Indian Penal Code. 37. We have perused the judgment of the Supreme Court. Shyamsudner Trivedi, 1995 SCC (cri) 715, submits that the first accused must have inflicted the said injury without any knowledge or intention and therefore, he should be convicted only under section 304 (ii) of the Indian Penal Code. 37. We have perused the judgment of the Supreme Court. The facts in that case show that the deceased in that case suffered injuries not on vital parts of the body and in that view, the Supreme Court has held that the offence committed by the accused in that case would fall under Section 304 part (ii) of the Indian Penal Code. But the facts in this case are totally different. We have already noticed that the deceased Stephen suffered injury on the temporal region, which, by no stretch of imagination, can be said as a non vital part. It is, therefore, clear that the deceased was beaten on the vital part, i.e., on the temporal region by the accused, that too in his room with a Lathi, on account of which the deceased died. It is, therefore, difficult to hold that the first accused could have no intention or knowledge when he beat the deceased on the vital part of the body that he will die on account of the said beating. 38. We, therefore, reject the said contention and convict the first appellant for an offence of murder. It is no doubt true that the first accused was convicted for an offence under Section 302 read with 34 of the Indian Penal Code. But in view of the discussion and finding of ours, we are of the view that no prejudice will be caused by altering the charge under Section 302 read with 34 of the Indian Penal Code to one under section 302 of the Indian Penal Code. We, therefore, convict the first accused for the offence under Section 302 of the Indian Penal Code. 39. In the earlier part of this judgment we have already stated that as the second appellant died, the appeal against him abates. 40. Now, we will take up the case of appellants 3 and 4, who are accused 3 and 5. We find that there is no evidence against them. No witnesses whispered that accused 3 and 5 joined with the first accused, while he was interrogating Stephen and P.W.10 in his room. 40. Now, we will take up the case of appellants 3 and 4, who are accused 3 and 5. We find that there is no evidence against them. No witnesses whispered that accused 3 and 5 joined with the first accused, while he was interrogating Stephen and P.W.10 in his room. The evidence shows that Stephen and P.W.10 were taken by the first accused to his room, where they were interrogated and neither the third accused nor the fifth accused was present in the said room. Accused 3 and 5 could not have expected that the first accused, after taking Stephen and P.W.10, to his room will cause injury on the temporal region of Stephen leading to his death. We, therefore, acquit the third accused of the charge under section 302 read with 149 of the Indian Penal Code and acquit the fifth accused of the charge under Section 302 read with 34 of the Indian Penal Code. 41. As regards, the charge under Section 201 of the Indian Penal Code, we find that the prosecution was not able to make out a case against accused 3 and 5. It is the admitted case of the prosecution that Stephen was taken to the hospital by the first accused and he was accompanied by a police constable by name Doraiswamy. Accused 3 and 5 did not accompany the first accused to the hospital and the memo, Ex.D.2 was not issued either by the second accused or by the fifth accused, but was issued by the first accused when he referred Stephen to the hospital for treatment. It is, therefore, difficult to hold that accused 3 and 5 accompanied the deceased to the hospital with a view to screen the offence of murder committed by the first accused. We accordingly acquit accused 3 and 5 of the charge under Section 201 of the Indian Penal Code. 42. We also find it difficult to convict the first accused for the offence under Section 201 of the Indian Penal Code, since the learned Judge did not put any question to the first accused, when the first accused was questioned under Section 313 of the Code of Criminal Procedure as to the part played by him to commit an offence punishable under section 201 of the Indian Penal Code. 43. Questioning under Section 313 of the Code of Criminal Procedure is a mandatory provision. 43. Questioning under Section 313 of the Code of Criminal Procedure is a mandatory provision. The trial Court, not having followed the mandatory provision of questioning the first accused as regards the act committed by him, which will fall under Section 201 of the Indian Penal Code, the first accused did not get an opportunity to explain the charge. It is no doubt true that the first accused has stated that he took the injured Stephen to the hospital, but the said statement of the accused cannot be put against him in the absence of any question put to him under section 313 of the Code of Criminal Procedure for him to be found guilty under Section 201 of the Indian Penal Code. We, therefore, acquit the first accused under Section 201 of the Indian Penal Code. 44. In the result, the conviction of the first accused for the offence under Section 302 read with 34 of the Indian Penal Code, is modified to one under Section 302 of the Indian Penal Code. The sentence of life imprisonment and the fine amount imposed on the first accused by the Sessions Judge are confirmed. The third accused is acquitted of the offence punishable under Section 302 read with 149 of the Indian Penal Code and the fifth accused is acquitted of the offence under Section 302 read with 34 of the Indian Penal Code. Accused 1, 3 and 5 are acquitted of the offence punishable under section 201 of the Indian Penal Code. The appeal as against the second appellant/second accused abates. 45. The criminal appeal is partly allowed. The bail bonds executed by the appellants 3 and 4/accused 3 and 5 shall stand cancelled. The fine amounts paid by the appellants 3 and 4/accused 3 and 5 are directed to be refunded to them. It is reported that the first accused is on bail. The Sessions Judge shall take steps to commit the first accused to undergo the remaining period of sentence.