IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 3-12-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.518 of 2009 1.Shanmuga Sundaram 2.Ponnammal .. Appellants vs State rep. By Inspector of Police Thoothur Police Station Ariyalur District Crime No.63 of 2008 .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court, Ariyalur, made in S.C.No.22 of 2009 dated 30.6.2009. For Appellants : Mr.S.Ashok Kumar Senior Counsel for M/s.R.Arunmozhi For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court, Ariyalur, made in S.C.No.22 of 2009 whereby the appellants ranked as A-1 and A-2 respectively, stood charged under Sec.302 read with 34 IPC, tried, found guilty as per the charge and awarded life imprisonment with a fine of Rs.1000/- and default sentence. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) The deceased Poongodi was the wife of A-1. A-2 is the mother of A-1. The marriage between the victim Poongodi and A-1 took place 2 decades before. They were living together along with A-2. P.Ws.1 and 5 are the parents of Poongodi. P.W.3 was residing adjacent to the house of the appellants. On 11.10.2008 at about 2.30 https://hcservices.ecourts.gov.in/hcservices/ A.M., P.W.3 and his wife P.W.4 heard the distressing cry from the house of the accused "save me, save me". Immediately, P.Ws.3 and 4 came out of the house and found the victim coming out from the house with burn injuries. They poured sand and rolled gunny bags on the body of Poongodi. Then the victim was taken to Tanjore Medical College Hospital by A-1. (b) P.W.6, the Village Administrative Officer, on coming to know about the incident, proceeded to the spot. Then he returned to the respondent police station. P.W.2, the Medical Person, while he was on duty in the morning hours of 11.10.2008 at the hospital, the said Poongodi was brought with burn injuries. P.W.2 examined her and found her conscious and answering to the questions. He admitted her as an inpatient. The accident register copy is marked as Ex.P2. (c) On receipt of the information from Tanjore Medical College Hospital, P.W.14, the Inspector of the Circle, proceeded to the hospital on 12.10.2008, and recorded the statement of the victim Poongodi. On the strength of the said statement, Ex.P9, he registered a case in Crime No.63/2008 under Sections 324 and 307 of IPC at about 8.00 A.M. Then he took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3, and also a rough sketch, Ex.P11. M.O.1, a plastic can, was recovered. The accused were arrested and sent for judicial remand. (d) An intimation was given to the Judicial Magistrate, Thiruvaiyaru. P.W.8, the Judicial Magistrate, on receipt of the intimation at about 6.35 P.M., proceeded to the hospital and after getting the certificate that she was conscious and in a fit state of mind to give the declaration, he recorded the dying declaration which is marked as Ex.P6. (e) P.W.10, the Assistant Professor, Tanjore Medical College Hospital, gave treatment to Poongodi. P.W.13, the Inspector of Police, took up further investigation. In the meanwhile, despite treatment, the victim died on 20.10.2008, and an intimation was given to the respondent police station. Then, the case registered originally as above, was converted to Sec.302 IPC. The altered report, Ex.P7, was sent to the Court. The Investigator proceeded to Tanjore Medical College Hospital and conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P8. A requisition was given to the hospital authorities for the purpose of postmortem. (f) On receipt of the said requisition, P.W.7, the Tutor in Forensic Medicine, Thanjavur Medical College, conducted autopsy on the dead body of Poongodi and has issued a postmortem certificate, Ex.P5, with her opinion that the deceased would appear to have died due to the effects and complications of burns. (g) On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 14 witnesses and also relied on 12 exhibits and https://hcservices.ecourts.gov.in/hcservices/ 1 material object. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. But, the intimation given by the VAO, P.W.6, was marked as Ex.D1 on their side. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty as per the charge and awarded the punishment as referred to above. Hence this appeal at the instance of the appellants. 4.Advancing the arguments on behalf of the appellants, the learned Senior Counsel Mr.S.Ashok Kumar would submit that the specific charge that was levelled against the appellants was that at about 2.00 A.M. on 11.10.2008, they poured kerosene on the victim Poongodi and set fire, and as a direct consequence, she died; that the prosecution had no direct evidence to offer, and it rested upon circumstances; that the prosecution has neither placed necessary circumstances nor proved the same; that admittedly, the marriage between A-1 and Poongodi took place two decades before; that P.W.1 was the mother and P.W.5 was the father of the victim; that though they were treated hostile by the prosecution, they have categorically spoken to the fact that their daughter Poongodi and her husband A-1 were living happily; that P.Ws.3 and 4, who are the neighbours, have also categorically deposed that they were carrying on a happy matrimony, and thus the accused had no motive to do such a heinous crime; that the prosecution much relied on and the trial Court has also accepted the dying declaration alleged to have been given by the deceased; that in the instant case, there were three statements available before the trial Court; that the first one was the statement given by the victim Poongodi to P.W.2, the Doctor, at about 5.00 A.M. wherein it was clearly stated that it was an accident; that the Doctor has categorically deposed that she was conscious and answered all the questions, and it was she who gave the statement that it was an accident; and that there is no reason to discard the earliest version given by the victim herself to P.W.2, the Doctor. 5.Added further the learned Senior Counsel that the second statement was given by her to P.W.8, the Judicial Magistrate, at about 7.10 P.M. wherein she has stated that when she was sleeping both the accused poured kerosene and set fire; that it is pertinent to point out that there was a long interval between the first statement given to the Doctor as found in Ex.P2 and the dying declaration, Ex.P6, which was recorded by the Judicial Magistrate; that it is also clear from the evidence that her parents and others were by the side all along the day, by whom she could have been tutored; that there was a quarrel between the deceased and A-1 on the night of 10.10.2008, and hence she could have deliberately given the dying declaration implicating the accused in a heat of anger; that under such circumstances, no evidentiary value could be attached or a conviction could be based upon the alleged dying declaration recorded by the Judicial Magistrate, P.W.8, marked as Ex.P6; that the victim has made the third statement under Ex.P9, the complaint, to the Police Officer, wherein she has stated that when she was sleeping, it was A-2 her mother-in-law, who poured kerosene and set fire on her, https://hcservices.ecourts.gov.in/hcservices/ and A-1 was standing by the side as a passive spectator; that this improvement made in Ex.P9, the complaint, was a deviated one from Ex.P6; and that the contents of Ex.P6, dying declaration, and Ex.P9, complaint, are thoroughly inconsistent to the earliest version given by her as found in Ex.P2, the accident register copy. 6.It is further contended by the learned Senior Counsel that above all, P.W.6, the VAO, has deposed that immediately on receiving the information, he went to the spot and gave a complaint to the respondent police station, but no case was registered on the strength of the said complaint; that the accused have marked the said complaint as Ex.D1; and that P.W.6 has categorically deposed that it was the complaint given by him wherein he has clearly stated that due to the family quarrel, she committed self-immolation. 7.Added further the learned Senior Counsel that in the instant case, the conduct of the accused must be taken into account; that the deceased was taken to the hospital by A-1 with burn injuries; that had A-1 joined with his mother A-2 in such an act, there was no need for him to take her immediately to the hospital; that P.W.2, the Doctor, has categorically deposed that it was her husband who brought her to the hospital; that the conduct of the accused coupled with the earliest version given by the deceased to P.W.2, the Doctor, that she sustained burn injuries due to accidental fire, would clearly relieve the accused of the charge levelled against them; that under the circumstances, the prosecution has not proved its case beyond reasonable doubt, and hence the judgment of the trial Court has got to be set aside and the appellants be acquitted. 8.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9.It is not in controversy that pursuant to an incident that had taken place at about 2.00 A.M. on 11.10.2008, one Poongodi the wife of A-1, and the daughter-in-law of A-2, was taken to the hospital by A-1, and she was given treatment by P.W.2, the Doctor, at about 4.00 A.M. Ex.P2 is the accident register copy. Despite treatment given to her, she died on 20.10.2008 as a result of the burn injuries sustained by her. The time of occurrence and cause of death as put forth by the prosecution were never disputed by the appellants before the trial Court or before this Court. 10.True it is, the prosecution had no direct evidence to offer. It relied upon the circumstantial evidence. Admittedly, the marriage between the spouses took place two decades before, and they were living together. It is also not in controversy that on the day of occurrence, A-1, A-2 and the deceased Poongodi were the only three persons available in the house. The earliest document which has come into existence is Ex.P2, the accident register copy, recorded by P.W.2, the Doctor. It is true that P.W.2 has categorically deposed that she was brought to the hospital by A-1; that she was conscious and answered the questions and that she stated that the burn injuries were due to accident. This Court is of the considered opinion that the contents of Ex.P2 document need not be given any importance for the reason that though the said statement was given by her to the https://hcservices.ecourts.gov.in/hcservices/ Doctor, the same was given in the presence of her husband A-1. The contents of Ex.P2 would clearly indicate and P.W.2 has also deposed that it was A-1 who brought her to the hospital and admitted her. The presence of A-1 her husband, no doubt would have created a fear in her mind, and hence she would have stated to the Doctor that it was due to accident. 11.Apart from the above, on intimation P.W.8, the Judicial Magistrate, had gone to Tanjore Medical College Hospital, and after getting the certificate from P.W.2, the Doctor, that she was in a fit state of mind and being satisfied, he recorded the dying declaration as found in Ex.P6. A reading of the dying declaration would clearly indicate that there was a quarrel on 10.10.2008, and on the day, when she was sleeping, both the accused poured kerosene and set her ablaze. The statement given by her was unambiguous. The reason for doing the act of pouring kerosene and setting her ablaze is pursuant to the quarrel which took place on 10.10.2008 itself and that is found in the statement. It is true that the statement has come into existence at about 7.10 P.M. after a gap of 12 hours. At this juncture, it is pertinent to point out that P.Ws.1 and 5, the parents of the deceased, have turned hostile. P.Ws.1 and 5, the parents, and also P.Ws.3 and 4, who are the neighbours, have categorically deposed that they were carrying on a happy matrimony, and hence there was no reason for any one and in particular P.W.1 or P.W.5, to influence or tutor her to give any false version. This single piece of evidence namely the dying declaration, given by the victim if it inspires the confidence of the Court, can well form basis for a conviction. In the case on hand, this Court is unable to see any reason to doubt or discard the contents in Ex.P6 dying declaration, recorded by the Judicial Magistrate. 12.As far as the other document namely Ex.P9, the complaint, or Ex.D1, the intimation given by P.W.6, the VAO, is concerned, this Court is of the opinion that much weight cannot be attached to the same. Yet another strong circumstance which, in the considered opinion of the Court, is in favour of the prosecution, is the non- explanation put forth by the accused how the occurrence has taken place. Now, the learned Senior Counsel appearing for the appellants would submit that due to the quarrel that took place on 10.10.2008, she would have attempted to commit suicide, and in that process, she has poured kerosene on herself and set fire. It this contention is true, there was no impediment for the accused to put forth the same before the trial Court. Had it been true that it was an act of self- immolation or bursting of stove, A-1 and A-2 who were the only inmates apart from the deceased, would have informed to the neighbours and called them. On the contrary, P.Ws.3 and 4 have heard the distressing cry of the deceased "save me, save me". Had it been an act of pouring kerosene and setting fire in an attempt to commit suicide, there was no need for her uttering those words. Admittedly A-1 and A-2 were very well present at that time. But, how she sustained burn injuries, they had no explanation to offer. In the face of the non-explanation from the accused, who were the only close relations namely husband and mother-in-law of the deceased respectively, coupled with the dying declaration which was free from any doubt, it can be well stated that the appellants alone could have committed the act of pouring kerosene and setting her ablaze taking https://hcservices.ecourts.gov.in/hcservices/ advantage of her deep sleep and that too at 2.00 A.M. The learned Senior Counsel for the appellants would submit that of the two, who committed the act was not known. This Court is of the view that when the said act was done by one, the other should have definitely shared the common intention of doing the same. Under such circumstances, both the appellants/accused by sharing the common intention of causing her death, have poured kerosene and set her ablaze and caused her death. Therefore, the trial Court was perfectly correct in finding them guilty and awarding the life imprisonment, and nothing is noticed to disturb the same. 13.In the result, this criminal appeal fails, and the same is dismissed confirming the judgment of the trial Court. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar nsv To: 1.The Additional District and Sessions Judge Fast Track Court, Ariyalur. 2.-DO- Through Principal Sessions Judge, Ariyalur 3.The Inspector of Police Thoothur Police Station Ariyalur District Crime No.63 of 2008 4.The Superintendent, Central Prison, Trichy, 5.The Superintendent, Central Prison (Women) Trichy 6. The District Collector, Ariyalur 7. The Director General of Police, Chennai 8. The Public Prosecutor, High Court, Madras. CRL.A.No.518 of 2009 TS (CO) RH (11.12.09) https://hcservices.ecourts.gov.in/hcservices/