In the High Court of Judicature at Madras Date : 07..02..2008 Coram : The Hon'ble Mr. Justice D. MURUGESAN and The Hon'ble Mr. Justice V. PERIYA KARUPPIAH Criminal Appeal No: 75 of 2007 Ambedkar, Vellavari Street, Mettu Street, Namakkal District. ... Appellant/Accused. -vs- The State, represented by The Inspector of Police, Nannilam Police Station. ... Respondent/Complainant. [Cr.No.1595/04] Criminal appeal under Section 374 of Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Namakkal, dated 21.02.2006 in S.S.C. No: 117 of 2005. For appellant : Mr. B. Vasudevan For respondent : Mr. P. Kumaresan, Additional Public Prosecutor J U D G M E N T V. Periya Karuppiah, J. This appeal is directed against the judgment dated 21.02.2006 in S.C. No: 117 of 2005 of the Additional District -cum- Sessions Judge, (Fast Track Court), Namakkal, convicting and sentencing the sole accused to undergo life imprisonment and pay a fine of Rs.5,000/- in default to undergo SI for six months for the offence under Section 302 I.P.C. and for the offence under Section 304 (2) I.P.C. sentencing him to undergo R.I. for seven years and and to pay a fine of Rs. 2,000/- in default to undergo S.I. for three months. The substantive portion of the sentences are directed to run concurrently. 2. The case of the prosecution is as follows : https://hcservices.ecourts.gov.in/hcservices/ P.W.1 is living at Vellavari Street, Namakkal, along with his paternal uncle's family. He had two sisters and one brother. As his father and mother died during his childhood, all of them were brought up by their paternal uncle in his house. His elder sister Kanagavalli is unmarried and his younger sister Karpagavalli got married to the accused two and half years prior to the date of the occurrence. They are also living in the same street. They have one and half year old daughter by name Aswini. His sister and her husband used to quarrel often regarding family matters. On 27.10.2004, upto about 7.30 p.m., Karpagavalle went back to her house from their paternal uncle's house. Around 9.30 p.m. when P.W.1 was at the house of his paternal uncle, the accused came carrying the child Aswini with burn injuries and gave it to his paternal mother saying the child caught fire and ran. P.W.1 and his paternal aunt took the child to Government Hospital, Namakkal, and got it admitted there. They came back to his sister house and saw Karpagavalli lying dead with burn injuries. When enquired, neighbours informed P.W.1 that the accused had murdered Karpagavalli and had run away. 3. The learned Additional and Sessions Court, Namakkal, which tried the case, had come to the conclusion that the prosecution had proved its case and passed an order of conviction and sentence as stated above. 4. Before the trial Court, Gnansekaran who is the brother of Karpagavalli- Deceased No: 1 in this case, was examined as P.W.1 in this case. He would depose that the accused is the husband of Karpagavalli. Deceased No: 2 is one and half year old girl by name Aswini, who is the daughter of Karpagavalli and the accused. The marriage between the accused and the deceased Karpagavalli took place two and half years prior to the date of occurrence. There often used to be quarrel among the couple for family matters. The accused was demanding for one sovereign of gold ring for him which they had promised during the marriage. The accused did not go to any job and was giving troubles to his wife under the influence of alcohol. (ii) On 27.10.2004, at about 9.30 p.m. on the information from neighbours that the child had caught fire, P.W.1, his paternal uncle and paternal aunt rushed to the house of the accused; there the accused brought the child Aswini with burn injuries and handed over the child to his paternal aunt; immediately P.W.1 took the child and got it admitted at the Namakkal Government Hospital; he came back to the house of the accused around 10.30 p.m. in search of his sister; there he saw his sister lying with burn injuries and thereafter, he went to the Police Station and lodged the complaint Ex.P.1. 5. Before the trial Court, the prosecution had also examined other witnesses including P.W.1's paternal uncle and paternal aunt, the Doctors who conducted post mortem on the dead body of Karpagavalli and the child Aswini, the Sub Inspector of Police and other independent witnesses. P.W.11 was the Inspector In-charge of Namakkal Police Station on 27.10.2004. At about 11.30 p.m. on https://hcservices.ecourts.gov.in/hcservices/ 27.10.2004, he received the intimation regarding the registration of Crime No: 1595 of 2004 in Namakkal Police Station and he started his investigation at about 6.00a.m. on 2.10.2004. He went to the scene of occurrence and prepared Observation Mahazar, Ex.P.7 and rough sketch, Ex. P.11. He conducted inquest over the dead body of Karpagavalli in the presence of Panchayatdars and others. Ex.P.12 is the inquest report pertaining to Karpagavalli. He handed over the dead body to P.W.8 along with a requisition to conduct post mortem. Before P.W.7 and others, he recovered a half burnt mat – M.O.2, half burnt cloth and sample cloth – M.O.3, half burnt cloth of the cradle – M.O.4, 5 ltr. Cane – M.O.1 and a match box – M.O.5 under a cover of mahazar Ex.P.8 and sent those articles for chemical examination. He enquired the witnesses and recorded their statements. P.W.11 handed over the further investigation to P.W.12. 6. P.W.12 was the Inspector at Namakkal Police Station at the relevant point of time. He would state in his evidence that he took up further investigation from P.W.11 on 02.11.2004. On 02.11.2004, P.W.12 received the death intimation of the child Aswini from the Hospital around 10.30 p.m. which is Ex.P.13. He went to the Hospital on 03.11.2004 around 7.00 a.m. and conducted inquest over the dead body of the child Aswini in the presence of the Panchayatdars. The inquest report is Ex.P.14. He sent the dead body of the child Aswini through a Head Constable to post mortem along with a requisition. He enquired P.Ws. 1, 4, 6 and others and recorded their statements. On 05.11.2004, he enquired with P.Ws. 5 and one Narasimhan and recorded their statements. On 06.11.2004, he enquired P.Ws. 4, 1 and others and recorded their statements. He sent a requisition Ex.P.15, to the Court to subject the case properties for chemical examination. The Court sent the case properties to the laboratory as an enclosure to Court's letter Ex.P.16. The chemical analysis report is Ex.P.17. He conducted further enquiries with some more witnesses and recorded their statements. Ex.P.18 is the intimation received from the Hospital as to the admission of the accused in the hospital on 28.10.2004 at 4.40. Ex.P.19 is the intimation regarding the admission of the child Aswini in the hospital and Ex.P.20, is the intimation received by the learned Magistrate from the Hospital. Ex.P.21 is the confession statement of the accused. On 09.12.2004 at the Government Hospital, Namakkal, around 11.30 a.m., before P.W.10 and another, P.W. 12 recorded the confession statement from the accused. Ex.P.22 is the recommendations given by the Doctor to keep the accused under treatment. Ex.P.23 is the requisition for arresting the accused. Ex.P.24 is the discharge summary pertaining to the accused. After the accused was discharged from the hospital, through a requisition to Court, the accused was remanded to judicial custody. P.W.12 continued with further investigations by recording the statements of the Doctors who conducted post mortem over the dead body of both Karpagavalli and Aswini. On completion of the investigation, on 12.03.2005 P.W.12 filed charge sheet against the accused in Court for the offences under Sections 498 A, 302 and 304 (2) I.P.C. https://hcservices.ecourts.gov.in/hcservices/ 7. Learned counsel for the appellant Mr. B. Vasudevan, would submit in his argument that the husband namely the accused has been wrongly implicated in the alleged crime of committing murder of his wife as well as causing death of his child Aswini in an incident in which his wife had committed suicide by pouring kerosene and litting fire on her person and the entire case is based upon circumstantial evidence which would require a strong proof from all the sources so as to connect the link of circumstances. According to the learned counsel for the appellant, though the prosecution did not perform its duty of discharging its burden in proving the guilt of the accused without any doubt, the lower Court had convicted the accused and sentenced him to undergo imprisonment as stated above. He would further submit in his argument that the appellant / accused had also sustained burn injuries when he attempted to save his wife from the fire and he was admitted in Hospital and took treatment for about 115 days for his burn injuries and, therefore, the alleged commission of murder of his wife cannot be considered to have been established and that the accidental death of his child, which is one and half years old, was only due to the engulf of fire emanated from the person of his wife and in that aspect also the appellant is not guilty of any offence, much less the charge that he was the cause for the death of his daughter. Learned counsel further insisted in his argument that the evidence of the prosecution witnesses are contrary to each other and they have deposed falsely against the appellant / accused in order to wreck vengeance for the act of the accused of having married the deceased after loving her for five years. 8. More over, he would submit in his argument that the suicide committed by the wife of the appellant could be evidenced from the 100% burn injuries found on her body which is clear from the medical evidence and the circumstantial evidence having not been completed by connecting all the links perfectly, he would pray for the acquittal of the accused / appellant by giving him the benefit of doubt. In support of his argument, learned counsel would submit a decision of the Supreme Court reported in 2006 (10) S.C.C. 172 [Ramreddy RajeshKhanna Reddy and another vs. State of Andhra Pradesh], which is to the effect that the links of the chain of circumstantial evidence should not be missed so as to prove the charge against the accused. 9. Mr. Kumerasen, learned Additional Public Prosecutor, appearing on behalf of the State, would submit in his reply argument that the prosecution had proved the entire circumstances available in the case without any default, with the help of the prosecution witnesses especially through the evidence of P.W.5, who was present at the time of the incident and who had seen the deceased gutting to fire. Learned Additional Public Prosecutor would draw our attention to the evidence of P.W.5 and submit that when the fire was gutting the deceased, the accused was sitting without helping her and thereafter, the act of the accused having taken the child away leaving his wife to flames so as to burn her further and handed over the child to his relatives and fled away from the scene of https://hcservices.ecourts.gov.in/hcservices/ occurrence. He would further submit in his argument that the evidence of P.W.5 coupled with that of P.Ws.1, 4 and 6 would prove the fact that the accused was not seen with any injury when he came out of his house wearing only a 'jetty' for handing over his injured child Aswini to P.W.1 before he could fled away from the scene of occurrence. The said circumstances would also lead to an inference that the accused had put kerosene on his wife and lit fire. He would further submit in his argument that the conduct of the accused namely leaving the house at that point of time is peculiar and that will lead to suspicion and the explanation given in his statement recorded under Section 313 of Cr.P.C. cannot be relied upon and they are blatant lies which would only strengthen the case of the prosecution further more. 10. The learned Additional Public Prosecutor would further submit in his argument that the evidence adduced on the side of the prosecution and the defence evidence produced by the accused would go to show that there was no question that the deceased committing suicide and the statement given by the accused to the Doctor, as seen from the Accident Register, Ex.P.21, that he sustained injury in a stove burst incident and that would also show that the incident in which the appellant's wife died was not an attempt of suicide by her and therefore, the resultant conclusion would be that the accused should have caused the death of his wife since admittedly he was present at the scene of occurrence when his wife was engulfed in fire. Under these circumstances, the arguments of the learned Additional Public Prosecutor is to the effect that the prosecution has shown all the circumstances which would naturally prove the guilt of the accused and therefore, the finding of the learned Sessions Judge that the accused is guilty of committing the murder of his wife thereby he has also caused the death of his daughter and the same may be confirmed and the appeal be dismissed. 11. We have given our anxious consideration to the arguments advanced by both sides. The occurrence is said to have taken place on 27.10.2004 at the house of the accused around 9.30 p.m. The wife of the appellant / accused namely Karpagavalli was said to have caught fire and due to the fire she got 100% burn injuries; the child belonging to them namely Aswini, aged about one and half years, which was in the cradle also caught fire; the accused, who was present at the spot, is said to have taken out the child from the cradle and brought the child from and out of the house and handed over the child to P.W.1 and P.W.1's paternal aunt who came there on hearing the incident and later the accused left the scene of occurrence. According to the statement of the accused, he had handed over the child to P.W.1 to be taken to the hospital for treatment and he immediately returned to his house to see the plight of his wife who was already engulfed with fire. 12. On a careful perusal of the evidence let in by the prosecution through P.Ws. 1, 4 and 6, it is clear that when the accused had handed over the child to them there were no burn injuries on his person. Apart from these witnesses, P.W.5 is a person who had https://hcservices.ecourts.gov.in/hcservices/ immediately arrived at the scene of occurrence namely the house of the accused. He has seen the appellant's wife burning in fire; the accused sitting at a distance, witnessing his wife burning; the accused was bringing the child out of the house and handing over the same to the paternal aunt of P.W.1. Such a clear and categorical evidence of P.W. 5 would go a long way to show that the accused was sitting idle without making any attempt to defuse the fire on the person of his wife. Apart from these facts, P.W.5 had deposed to the effect that just prior to the time of occurrence he saw the accused carrying a cane towards his house. This evidence leaves no room to doubt that the alleged statement given by the accused that his wife had committed suicide by self-immolation is false. 13. Learned counsel appearing for the appellant, at this juncture, would insist in his argument that P.W.5 was examined after five days from the date of the occurrence and therefore his evidence may not be taken as a trust worthy statement and after eschewing the evidence of P.W.5, there is no evidence available to the prosecution to say that the accused was involved in the commission of the crime. No doubt, P.W.5 was examined and his statement was recorded after five days from the date of the occurrence. He was not examined at the time of conducting inquest over the dead body of the deceased. However, in the evidence of the investigating officer, namely P.W.12, he would explain to the effect that before filing the final report, he could not come to a conclusion whether the death of Karpagavalli was due to suicide or a murder, and at that point of time, P.W.5 voluntarily came to him and told him about what he saw and in fact, P.W.5 had given Ex.P.12, a letter, narrating as to what happened on the day of occurrence and this letter was also noted in the General Diary of the Police station and thus, the investigating officer had come to the conclusion that the alleged incident was in fact a murder and not a suicide. The explanation offered by P.W.12 is certainly acceptable and the delay caused in the examination of the witness P.W.5 will not in any way affect the case of the prosecution since the final report could be filed only after a thorough enquiry. 14. Apart from that we have to see whether the explanation given by the accused by way of submitting his defence through a statement when questioned under Section 313 Cr.P.C. are true and genuine. Similarly, the statement given by the accused to the Judicial Magistrate in the presence of the Doctor who treated him for the burn injuries found on his person shall also be looked into for the purpose of testing the veracity of his statements and its trust worthiness. When we go through his statement given to the Judicial Magistrate, he would state that on the fateful day, he had a heated altercation with his wife and finally he told her that she could go to her father's house and eke out her livelihood there and on hearing that his wife suddenly got into the house and therefore, the accused came out and sat on the pial. Within five minutes he could smell kerosene and also smoke emanated from his house and when he went inside, he saw his wife burning and when he tried to save her, the enormous heat affected him also and at that time on seeing his child screaming he took the child out and handed over the same to somebody https://hcservices.ecourts.gov.in/hcservices/ waiting outside and thereafter, he had told his mother-in-law that her daughter had poured kerosene on herself and that his mother-in- law must take care of her grand daughter. Further he would also add in that statement that though he wanted to go to Mayavan Hospital for taking treatment, as he was not feeling well, he fainted before a bunk shop and after sometime when he regained conscious, he hired an auto rickshaw and reached the Government Hospital. 15. But, in his statement given under Section 313 Cr.P.C. the appellant would state that he and his wife were leading a happy life, and on the fateful day, he and his family returned from a relative's betrothal function only in the evening; he was sitting on the pial just opposite to his house, at that time, his neighbours told him that smoke is coming from his house and when he rushed inside, he could see that his wife was burning in fire; but he could not save her by defusing the fire; on his attempt to save her he also caught fire and in order to save their child, he had brought the child out and handed over her to the persons standing outside and he went back to his house for saving his wife; he could not tolerate his injuries and he fainted and somebody had admitted him in the Government Hospital, Namakkal. He had also stated that the cause for fire in which his wife was injured should be due to stove burst. 16. Thus, there are two versions given by the accused at two different point of times. Before the Magistrate the appellant had stated that his wife had committed suicide by self – immolation and that is why she sustained 100% burn injuries on her person. But in the statement recorded under Section 313 Cr.P.C., he had stated that the burn injuries were due to bursting of the stove. It is pertinent to note here that in both the statements, the appellant did not deny his presence at the scene of occurrence at the time of the incident. Thus, his presence at the scene of occurrence is admitted by him but the reason as to how his wife caught on fire had been contradictorily stated by him. Similarly, the cause of fire has also been explained by him cogently but in a contradictory manner. These contradictory versions from the mouth of the accused as to the cause and the manner in which the incident took place and the further conduct of the accused only strengthens the case of the prosecution. The evidence of P.W.5 is to the effect that he had noted the appellant carrying the can just prior to the occurrence is vital and becomes strong to fasten the liability against the accused. More over, the accused is said to have been admitted in the hospital in an unconscious stage as per his own sworn statement. Whereas, the statement given before the Magistrate discloses that he had hired an autorickshaw on his own and reached the hospital. 17. The said contradictory statements in getting admission in the Government Hospital, Namakkal, is also vital and fatal to his trust worthiness. He was admitted in the Government Hospital, Namakkal, on 28.10.2004 at 4.35 p.m. This is evident from Ex.P.24 and Ex.D.1, the discharge summary and the accident register respectively. No explanation was offered by the accused as to why immediately when he sustained injuries, he did not get himself https://hcservices.ecourts.gov.in/hcservices/ admitted in the hospital. He had taken almost one day for getting admission in the hospital after he sustained the injuries in the alleged occurrence. The evidence of D.W.1, the Doctor who had treated the accused, is to the effect that when the appellant appeared before him it should be around 4.35 p.m. on 28.10.2004. In Ex.P.24, the Discharge summary also, the time of admission was mentioned as 4.35 p.m. on 28.10.2004. Therefore, the evidence of D.W.1 is also not helpful to the appellant. 18. Thus, on a careful perusal of these materials we could see that the statements given by the accused before the Magistrate and before the Court when questioned under Section 313 of Cr.P.C. are having serious contradictions not only regarding the cause of fire in which his wife was burnt but also as to the manner in which he came to sustain the burn injuries on his person and also as to why he could not get himself admitted in the hospital immediately after he had sustained such injuries. At this juncture, the evidence adduced by P.W.5 would loom large to support the case of the prosecution that the accused had taken kerosene in a 'can' and P.W.5 immediately heard the voice that the appellant's wife was burning and that the other witnesses including P.W.5 had not seen any injuries on the body of the accused when he came out of the house, while his wife was burning, in order to hand over the child Aswini to P.W.1's paternal aunt. 19. Thus, the clear evidence of P.W.5 and the circumstances narrated by the prosecution supported by material evidence would go a long way to show that the accused was present at the scene of occurrence at the time of occurrence and therefore, the burden is heavily on him to prove his innocence. Whereas, the accused did not come forward with any acceptable explanation to prove his innocence. On the contrary, he has come out with contradictory versions as discussed above. We are of the considered opinion that, in this context it is pertinent to refer to the decision of the Supreme Court reported in 2007 (1) S.C.C. (Cri) 80 [Trimukh Maroti Kirkan vs. State of Maharashtra] wherein it was held that,