postmortem has to be done within presence of sunlight, because colour of injury in tube light,mhc

 


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Palammal v. Home Secretary (Madras)(Madurai Bench) : Law Finder Doc Id # 1734274

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MADRAS HIGH COURT(Madurai Bench)

Before :- R. Pongiappan, J.

WMP(MD) No. 7570 of 2020 in WP(MD) No. 8160 of 2020. D/d. 30.7.2020.

Palammal – Petitioner

Versus

The Home Secretary, Home Department, Government of Tamilnadu and Another – Respondents

For the Petitioner :- M/s. Henri Tiphagne, Advocate.

For the Respondent No. 1 to 6 & 9 :- M/s. A. Natarajan, State Public Prosecutor assisted by S. Chandrasekar, Additional Public Prosecutor.

For the Respondent No. 7 & 8 :- K. Chellapandian, Additional Advocate General assisted by S. Chandrasekar, Additional Public Prosecutor.

IMPORTANT

Postmortem should be done within presence of sunlight and not during night hours.

Criminal Procedure Code, 1973, Section 176(1)(A) – Custodial death – Postmortem during night hours – Re-postmortem – Husband of petitioner was taken by some Forest Officials without any reason and was later found dead – Plea of petitioner that it is a custodial death, no urgency to conduct postmortem during night hours – Held, postmortem has to be done within presence of sunlight, because colour of injury in tube light, CFL, LED’s and other artificial illumination appears to be purple rather than red and as per forensic science, 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 night and evening time – Thus, autopsy was conducted in night, not proper – Plea of petitioner-wife for conducting re-postmortem reasonable and acceptable.

[Paras 17 and 18]

Cases Referred :-

People’s Union For Civil Liberties v. State of Maharashtra, 2014 (10) SCC 635.

V. Eswaran v. Government of Tamil Nadu, Rep. by its Principal Secretary to Government, Health and Family Welfare Department, Chennai, W.P. No. 10694 of 2019. D/d. 16.04.2019.

ORDER
R. Pongiappan, J. – This Miscellaneous Petition is filed seeking a direction, to direct the 9th respondent to conduct re-postmortem of body of the petitioner’s husband, by name, Anaikarai Muthu, through by a team of Forensic Medicine Professionals from different Medical Colleges, headed by the Professor of Forensic Medicine from the Tirunelveli Medical College Hospital under full video coverage, within a time to be stipulated by this Court.

2. Heard the learned counsel appearing for the petitioner, the learned Public Prosecutor, assisted by Mr.S.Chandrasekar, learned Additional Public Prosecutor for the respondents 1 to 6 and 9 and Mr.K.Chellapandian, learned Additional Advocate General, assisted by Mr.S.Chandrasekar, learned Additional Public Prosecutor for the respondents 7 and 8.

3. The case of the petitioner 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 Forest Office, which is situated at Bungalow Kudiyuruppu, Sivasailam. 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 the team headed by one Nellai Nayagam, who is the Forest Ranger, Murugasmay, Sakthi Murugan and Pasungiliwho, 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 coming in the opposite direction. In the said forest official’s vehicle, the petitioner’s husband was in unconscious stage and 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.

4. 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, in Crime No.222 of 2020, on the file of the Alwarkurichi Police Station, under section 176(1)(A) of Cr.P.C., 1973 as a case of custodial death. After receipt of the F.I.R., the learned 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.

5. 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. Therefore, it is necessary to conduct re-postmortem headed by a Senior Professor of Forensic Medicine from Tirunelveli and assisted by two other Forensic Medicine Professors from the neighbouring Medical College Hospital.

6. The learned counsel appearing for the petitioner would submit that the autopsy was not conducted by the medical officers as per the guidelines of the Hon’ble Apex Court, as well as the guidelines given by the National Human Rights Commission.

7. In support of his submission, the learned counsel appearing for the petitioner relied on a judgment of the Hon’ble Apex Court in People’s Union For Civil Liberties and another v. State of Maharashtra and others reported in 2014 (10) SCC 635, wherein it has been held as follows:-

    “31.3(f). Postmortem must be conducted by two doctors in the district hospital, one of them, as far as possible, should be incharge/head of the district hospital. Postmortem shall be videographed and preserved.”

8. Further, the learned counsel would submit 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.

9. Per contra, the learned Public Prosecutor appearing for the State would submit 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 the Vagaikulam 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, Tenkasi, sent a requisition letter to the Dean, Tirunelveli Medical College Hospital, Tirunelveli, for conducting autopsy on the same day.

10. The learned Public Prosecutor would further submit that in the meanwhile, the fifth respondent had sent a requisition to the learned Chief Judicial Magistrate, Tirunelveli, in person, for nominating a learned Judicial Magistrate to conduct enquiry and for preferring the report. Accordingly, the learned Chief Judicial Magistrate, Tirunelveli, nominated the learned Judicial Magistrate, Ambasamudram, with a direction to conduct the inquiry. The learned Judicial Magistrate, Ambasamuthiram, conducted inquest on the body of the deceased Anaikarai Muthu only thereafter. After getting requisition for conducting autopsy from the learned Judicial Magistrate, Ambasamudram, a team of Doctors viz., Tmt.Seethalakshmi, Associate Professor, Forensic Medicine, Tirunelveli Medical College Hospital and Tr.J.Sridharan, Tutor, Forensic Medicine, Tirunelveli Medical College Hospital, had conducted autopsy and same was videographed by one Special Sub-Inspector of Police, Photography Wing viz., Cherman, Tirunelveli, who handed over the Memory Card containing Video file to the Doctor immediately after autopsy and thereafter, the same was handed over to the learned Judicial Magistrate, Ambasamuthram. Only to maintain the law and order, autopsy was conducted in the night hours and therefore, the learned Public Prosecutor prayed for dismissal of this Miscellaneous Petition.

11. Upon considering the arguments advanced by the learned counsel on either side, the only issue to be resolved in this petition is that, whether the postmortem conducted in the night hours is in accordance with the procedure contemplated in various precedents.

12. In this connection, it is necessary and useful to see the judgment delivered by a Division Bench of this Court in the case of V. Eswaran v. Government of Tamil Nadu, Rep. by its Principal Secretary to Government, Health and Family Welfare Department, Chennai [W.P.No.10694 of 2019, decided on 16.04.2019], wherein the Division Bench of this Court in respect of night postmortems, has held as follows:-

    • “c)

MEDICAL VIEWS AGAINST NIGHT POST MORTEMS

    The medical views of non feasibility for conducting the postmortems at nights are as follows, in addition to the grave apprehensions as stated above.
    • i)

COLOUR STATUS

    The population of the state of Tamil nadu are a mixture of medium and dark complexioned people. The majority of them are dark complexioned individuals. The medico legal autopsies mainly pertain to victims of violence. The doctors duty in such cases is to establish the time of assault, the time of death and the cause of death apart from identifying the dead body.
    The medical and surgical emergencies are primarily to save the life of a person, where the colour of the skin is not of paramount importance. Such attempts to save the life cannot be equated with the inherent duties of a forensic autopsy surgeon in providing the proper guidance to the investigating Police Officer and finally in the administration of justice.
    • ii)

TIME OF ASSAULT

    The time of assault is one of the very crucial and clinching points for the investigating agencies to include or exclude the suspected assailant involved in a particular crime. The time of assault is ascertained by the age of the wound which is assessed by observing the colour changes in the wounds such as colour of the abrasions and contusions, and the stage of healing of the wounds on the dead body. The stage of healing is made out by the specific color changes that appear on the wound surface at different times during the process of healing. Such colour changes are to be differentiated exactly, to opine about the age of the wound. First of all, it is a difficult task to locate the contusion or bruises in medium or dark complexioned people, even in the day time. Therefore an attempt to make out the contusions on the body of a dark complexioned individual is highly difficult and could be missed, especially so in the artificial light during night. Under the artificial light, the color of the skin, in cases of dark or medium complexioned individuals, would mask the color of the bruise and may escape detection even by the trained eye after careful examination.
    The colour of the hypostasis and the colour changes brought in due to the decomposition would be masking or altering the colour changes of the contusions. The colour changes that are to be differentiated to determine the age of the wound, are very subtle and faint change of shades of colour, and not just the primary colours. It is a known fact that the differentiation of various shades of colours in artificial light is misleading and the mistake can be identified and brought out in the natural day light examination. It is extremely important to differentiate the mixture of faint shades of color that occurs in the wounds during the process of the healing. This color observation is a clinching issue to fix the time of assault which can only be made out in sun light.
    • iii)

TIME OF DEATH

    Time of death is the very important evidence for the investigating officers to apprehend the suspects and exclude the innocents. The color changes that occur chronologically on the dead body, due to the decomposition changes, would enable the doctor to fix the time of death. The colour changes due to the decomposition are in different shades. The variegating colour changes of decomposition are important to calculate the time of death, considering the various other factors in which the dead body was lying. The slight difference in the colour of the dead body would create a considerable variation in the estimated time of death. The time of death as ascertained by the doctor at the time of postmortem examination of the dead body would be of paramount importance to the investigating officer to analyze the crime and apprehend the culprit. The erroneous time of death ascertained by the examination of the dead body at night, under artificial light would be detrimental to the investigation of the case.
    • iv)

CAUSE OF DEATH

    Certain color changes that occur in the tissues also enables the doctor to establish the cause of death as in jaundice, infarction of visceral organs, infection that may complicate thermal and mechanical wounds, intracerebral haemorrhages, haemorrhages in the tissues due to mismatched blood transfusions or other bleeding disorders or due to some poisons and also the colour changes due to some poisons. These color changes can not be made out clearly without ambiguity in artificial light during night time. The colour changes occurring in cases of poisoning would be paving the way for proper further analysis of the tissues and organs from the dead body. The colour changes if observed wrongly, under artificial light in the night, would be making the postmortem examination a futile exercise.
    • V)

POSTMORTEM ARTEFACTS

    During the transportation of the dead body from the scene of crime, during the storage of the dead body in the mortuary, during the shifting of the dead body to the postmortem table for autopsy many types of artifacts can be introduced inadvertently either by the public or by the mortuary workers. These postmortem artifacts are to be identified and differentiated from the ante mortem mechanical injuries such as abrasions and bruises. The wrong interpretation of the postmortem artifacts as in ante mortem wounds would prove detrimental in the process of the investigation of the crime.

ANALOGOUS PRACTICE

    In most of the countries the postmortem is conducted only during the day time. The natural day light is preferred by the prudent doctors to conduct the postmortem as their findings are unambiguous and would not give room for the unnecessary argument in the Court of Law by the defense counsels about the observation and interpretations of the findings. Even the twilight has the particular wave length that distinguishes the colour as in natural sunlight. Artificial light can and will never be a substitute for natural sun light as it lacks the specific wavelength that distinguishes the finer shades of mixture of colors. The finer shades of colour are not important for the surgeons who perform the surgery under total artificial light. Though the postmortem examination is being conducted in the closed room of the mortuary with artificial light, it cannot be denied that the natural light due to its pervasiveness helps the doctor to differentiate the important colour changes. When in doubt the examination of the body can be done in natural sun light, which is possible if the postmortem is done only during the day time.
    SPECIAL PROBLEMS ENCOUNTERED IN NIGHT POSTMORTEMS ON THE DEAD BODIES WHICH HAVE UNDERGONE ORGANS HARVESTING?
    Conducting the postmortem during the night time in the routine Medico Legal cases would pose a lot of problems which will result in miscarriage of justice, the postmortem conducted in the night time, in cases of ?Organ Donation? would be all the more deleterious to the very purpose of submitting the body for post mortem examination due to the following reasons:
    1) There will be minimal amount of Vital tissues and important structures in the dead bodies which have been submitted for organ donation, that will make it almost impossible to find out the exact cause of death, even when the postmortem is conducted in the day time. Postmortem conducted in the night time in such cases would become a nightmare for the postmortem medical officer.
    2) The removal of the vital organs during the harvesting of the organs would cause structural alteration in the neighboring organs, which if had been already injured will pose a great problem in ascertaining the cause of death. E.g.: In cases of removal of the Heart, the lungs will invariably be found collapsed and the injuries in the lungs both macroscopically and microscopically would be doubtful and questionable in the court of law. If in such cases the postmortems are conducted in the night time it would be highly improbable to differentiate the changes in the non harvested organs as due to the injuries sustained by the individual during the accident or during the process of harvesting.
    3) The ante mortem injuries inflicted by the Organ Harvesting team on the non harvested organs in the region of the harvested organs would be causing lot of confusion in determining whether those injuries were caused during the accident / assault or they were iatrogenic injuries caused inadvertently during the removal of the organs. If postmortems are conducted during night time it would be erroneous to opine on those injuries as to, whether they were ante mortem or perimortem or postmortem in nature.
    4) There will be a sort of Kennedy Phenomenon? (Original injuries intervened by the surgical procedures) in cases of death due to accidents, where the dead bodies are submitted for organ harvesting. If postmortems are conducted during night time it would again be causing difficulty in ascertaining the cause of death.

CONCLUSION

    It should not be forgotten that the basic aim of postmortem is ultimately to help the society at large, by conducting the postmortem thoroughly, without any ambiguity in the observation and inference obtained there from. Conducting postmortem examination is not a mere ritual performed in cases of unnatural deaths. It is of no doubt that conducting night postmortem would bring happiness to some people, only by way of getting the dead body early, even in the night time. But it is very pertinent to consider the negative impact that would result in improper crime investigation, faulty observation, wrong analysis of the findings in the dead body and ultimately miscarriage of justice to the society at large, due to the night postmortems. Every case needs careful approach which sometimes requires combined efforts of the doctors and it is difficult to predict when such situation arises. If it occurs during night it becomes complex predicament. It is crystal clear from the above that errors are bound to occur if the postmortems are allowed to be conducted during night in the artificial light. This fact cannot be denied in the court of law, thus weakening the prosecution evidence and strengthening the defense plea for acquittal in all criminal cases. There are instances where the Judicial Courts have commented on the incomplete and erroneous postmortems, which had caused judicial turmoil. Finally, I would like to state that if Night Postmortems are permitted, it would not only result in miscarriage of justice but also in greater misery to the public at large, than the physical and mental agony caused to the medical officers and the paramedical staff involved in conducting the postmortem.”

13. From the above said judgment, it is made clear 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, 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.

14. Further, it is useful to extract below the relevant portion of Tamilnadu Medical Code – Volume – I.

    “II. In cities other than Madras where there are Government Medical Colleges:-
    Postmortem examination on dead bodies in cities other than Madras, where there are Govt. Medical Colleges, shall be conducted by the Medical Officers of all cadres of the Department of Forensic Medicine in the Government Medical Colleges. The postmortem examination shall be conducted between 6.00 hours and 18.00 hours on all days. The requisition from the police for autopsy shall be received at the department upto 16.00 hours only. In the absence of all Medical Officers in the department of Forensic Medicine, due to other duties or any other reason, the postmortem examination shall be conducted by the Medical Officers in the Department of Pathology of the respective institution.”

15. Therefore, in view of the above referred judgment and the Tamilnadu Medical Code – Volume – I, completing the postmortem in the night hours is not advisable. Moreover, now-a-days, gathering the public in a remote Village (i.e., Vagaikulam) after those type of occurrence, is a normal one.

16. In fact, 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?

17. The answer is, 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.

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

19. The learned Additional Public Prosecutor, on instructions, would submit 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 request of the learned counsel appearing for the petitioner is 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 and it is the responsibilities of the learned counsel for the petitioner to send a copy of this order to Dr.Sudalaimuthu, Head of the Department, Faculty of Forensic Medicine, Thoothukudi Medical College, Thoothukudi and to bring him for the purpose of his assistance in the process. The Dean, Tirunelveli Medical College, is directed to make necessary arrangements for videographing the postmortem as per the norms.

20. The doctors, who are named, shall be given all the facilities for conducting the autopsy/re-postmortem at the Tirunelveli Medical College Hospital, Tirunelveli. The Hospital Authorities also are directed to co-operate for implementing this order in letter and spirit. Since the objection of the petitioner was only on the apprehension, which is expressed in the Petition, the petitioner is directed to accept the body of her husband as her grievances are redressed by passing this order.

21. With the above observation, this Miscellaneous Petition is disposed of.

The copy of the postmortem report submitted by Dr. M. Seethalakshmi, Associate Professor in Forensic Medicine, Tirunelveli Medical College, Tirunelveli, and Dr.J.Sridharan, Tutor, Forensic Medicine, Tirunelveli Medical College Hospital, shall be kept in safe custody by the Registrar (Judicial) of this Court and produce the same before this Court as and when required.

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