1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.01.2011 CORAM: THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN and THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Crl.Appeal (MD) No.309 of 2009 K.Soundararajan .. Appellant / Accused NO.1 versus The State rep. by the Inspector of Police Thiruvadaimaruthur Police Station Kumbakonam Thanjavur District. .. Respondent/Complainant ----- PRAYER: Appeal filed under Section 374 of Cr.P.C. against the judgment of conviction and sentence dated 15.05.2008 made in S.C.No.12 of 2008 by the Additional Sessions Judge, Fast Track Court No.1, Thanjavur. ----- For appellant : Mr.A.L.Gandhimathi For respondent : Mr.Daniel Manoharan Additional Public Prosecutor ----- JUDGMENT (Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.) The appellant/first accused is on appeal against the judgment dated 15.05.2008 made in S.C.No.12 of 2008 on the file of the learned Additional Sessions Judge, Fast Track Court No.1, Thanjavur. 2. The Court below convicted the appellant/first accused under Section 302, I.P.C. based on the dying declaration Ex.P1 and sentenced him to undergo life imprisonment and pay a fine of Rs.5,000/-, in default of which, to undergo six months' simple imprisonment. The Court below acquitted the second accused as well as the third and fourth accused. Hence the appeal by the first accused. 3. The deceased is the daughter of P.W.1 and P.W.6. A-2 is the wife of A-1. A-3 and A-4 are the uncles of A-1. The first accused is residing near P.W.1's house. Admittedly, there had been some differences between the accused's family and the deceased's family and they were not in talking terms. 4. On 10.08.2007, at about 6.15 a.m., P.W.1 and P.W.6 had gone to the hospital and returned back home at about 6.30 p.m. The second accused abused the deceased with foul language thus leading to quarrel between them. At about 7.00 p.m., when P.W.1 was taking his bath, A-2 https://hcservices.ecourts.gov.in/hcservices/ 2 abused P.W.6. P.W.1 advised P.W.6 not to reply to A-2. After some time, all the accused came to the house of P.W.1 and attempted to attack P.W.1 with a stick. When the deceased attempted to prevent the same, the first and second accused chased the deceased in the backyard of P.W.1's residence to prevent her from the accused attacking P.W.1. A-3 and A-4 attacked P.W.1 with a stick. Seeing A-1 and A-2 chasing the deceased, P.Ws.1 and 6 shouted at the accused not to do anything to their daughter, the deceased. However, the first accused doused her in kerosene and the second accused set her ablaze. Vijayalakshmi, the deceased, ran into the house and P.W.1 tried to save the deceased and extinguished the fire. This resulted in burn injuries on P.W.1 also. Immediately thereafterwards, P.W.1 and 6 took the deceased in an autorickshaw to Kumbakonam Government Hospital and admitted her at 8.00 pm. P.W.2 - Dr.Mohideen Abdul Khader, working in the Emergency Ward, on seeing Vijayalakshmi with burn injuries, admitted her as an in-patient. P.W.1, who had come with 20% burn injuries on the body, was also admitted as an in-patient. Seeing the deceased with 90% burn injuries and the chances of survival not being there, P.W.2 recorded a dying declaration from the deceased. The same is marked as Ex.P1. Thereafter, he immediately informed the Kumbakonam Government Hospital Outpost Police Station. From there, at about 9.00 p.m., information was passed on to Thiruneelakkudi Police Station. 5. On receipt of information on 10.08.2007 at 9.30 p.m., P.W.12, Sub Inspector of Police of Thiruneelakkudi Police Station, came to the hospital, enquired the deceased and obtained a statement - Ex.P9 and based on her statement, he came to the Police Station and at about 11.30 p.m., he registered a case in Crime No.118/2007 under Section 307, I.P.C. The first Information Report was marked as Ex.P10. 6. P.W.12 - Sub Inspector of Police of Thiruneelakkudi Police Station, forwarded the copy of the First Information Report to the Inspector of Police - P.W.13, who took up the investigation and visited the occurrence spot and in the presence of witnesses, prepared the Observation Mahazar Ex.P11 and Rough Sketch Ex.P.12 and seized the plastic can and match box under mahazar Ex.P13. The plastic can was marked as M.O.1 and match box was marked as M.O.2. He enquired the witnesses and recorded their statements. Thereafter, he went to Kumbakonam Government Hospital and examined the deceased, P.W.1, P.W.6 and recorded their statements. On 11.08.2007, opposite to S.Pudur Bus Stand, he arrested the accused Soundararajan A-1, Suseela A-2 and Natesan A-4 and enquired them. During the course of enquiry, A-1 came forward to make a confessional statement. A-2 and A4 also made confessional statements in the presence of witnesses. Thereafter, P.W.13 enquired the witnesses and recorded their statements. The accused were brought to the Police Station and sent to the Court for remanding them to judicial custody. On 12.08.2007, at about 00.30 hours, the deceased succumbed to 90% burn injuries in the Kumbakonam Government Hospital. On 12.08.2007, on receiving the death memo, P.W.13 altered the First Information Report to one under Section 302 I.P.C. The altered First Information Report was marked as Ex.P13 and he sent the same to the Court. He went to the hospital and conducted inquest on the body of the deceased at about 06.00 a.m. on 12.08.2007 in the presence of the panchayatdars and the inquest report was marked as Ex.P15. Thereafter, he handed over the dead body for conducting post-mortem. He enquired and recorded further statements https://hcservices.ecourts.gov.in/hcservices/ 3 from P.Ws.1, 6 and others. On 13.08.2007, he enquired witnesses and recorded their statements. On 14.08.2007, he enquired and recorded statements from P.W.7. On 24.08.2007, at about 8.00 am, he arrested A-3 - Kaliyaperumal and sent him to the Court for judicial custody. On 30.08.2007, he enquired and recorded statements from P.W.2 - Dr.Mohideen Abdul Khader, P.W.4 - Dr.Chandrasekaran, P.W.5, P.W.10 and P.W.11 and recorded their statements. On 15.09.2007, he enquired P.W.2 - Dr.Mohideen Abdul Khader once again and recorded statements from him. Apart from that, he also recorded statements from P.W.3 and another. After completing the enquiry, he forwarded the final report to the Court, charging A-1 and A-2 under Section 302 read with Section 34 I.P.C. and on A-3 and A-4 under Section 352 and Section 302 read with Section 34 I.P.C. 7. On 12.08.2007, at about 11.00 a.m., P.W.5 - Dr.Mohan conducted post mortem on the dead body. The post-mortem Report was marked as Ex.P5. Ex.P2 is the accident register, which pointed out to 90% burn injuries on the body of the deceased. The post mortem report - Ex.P5 pointed out the external injuries as follows: The relevant portion of the report reads as follows: " External injury:- Area of burns seen the face, neck, chest, back and front of both upper limbs, abdomen, both thighs. Internal Injury:- Intact Hyoid bone, Larynx, trachea, black soot particles present, thorax: 10 rib fracture lungs: right 450 gms left 400 gms congested. The doctor opined the cause of death as due to extensive burns and hypovolemic shock. " 8. Learned counsel appearing for the appellant herein submitted that Ex.P1, which is the dying declaration stated to have been recorded at 9.20 p.m on 10.08.2007 is a planted document, since it reached the Court after nearly 55 days. He submitted that P.W.2 was examined and statement was recorded under Section 161, Cr.P.C. on 30.08.2007 in which there is no reference at all as regards the dying declaration marked as Ex.P1. Fifteen days later, on 15.09.2007, once again P.W.2 was examined by the Investigating Officer. The statement recorded on 15.09.2007 alone referred to the dying declaration, received by the Court on 04.10.2007. Considering the distance of time at which the documents were sent, the reliability of the same raises a serious doubt as to the case of the prosecution resting on the said dying declaration. He also referred to the evidence of P.W.12, who had stated in his examination in chief that he was in the hospital on 10.08.2007 at about 8.30 p.m., and recorded the statement under Ex.P9 and at about 11.30 p.m., he registered the case. 9. He further submitted that the distance between the hospital and the Police Station was just 200 metres. This is yet another circumstance to be taken note of in placing reliance on Ex.P1. He further pointed out that as per Exs.P2 and P3, accident registers, P.W.1 stated that the injuries were the result of fire caused by known persons, setting the deceased ablaze at about 7.00 p.m., on 10.08.2007. While Exs.P2 and P3 made at 8.05 p.m. on 10.08.2007, implicated four persons, he pointed out that, Ex.P1, the dying declaration recorded at 9.20 p.m. on 10.08.2007, indicates that A-1 poured kerosene and set the deceased ablaze. Thus, reliance placed by the Court below in convicting the accused solely on https://hcservices.ecourts.gov.in/hcservices/ 4 the basis of Ex.P1 is totally erroneous, there being no evidence to implicate the appellant herein. In sum and substance, the prosecution has not proved its case beyond reasonable doubt and Ex.P1 is a totally unreliable document. 10. Learned counsel for the appellant further referred to the evidence of P.W.5, Post-mortem Doctor, who stated in the cross- examination that the presence of soot particles in the trachea would disable a person from speaking. Even though the Accident Register might have referred to the status of the deceased in full consciousness, yet, having regard to the presence of soot in the trachea, the possibility of the deceased making a dying declaration - Ex.P1 not being there, no reliance could be placed on Ex.P1. 11. Per contra, learned Additional Public Prosecutor, pointed out that Ex.P1 clearly implicated A-1 as to the act of dousing the deceased with kerosene and setting her ablaze. The fact that the deceased died of homicidal violence is proved by Ex.P1 as well as the evidence of P.W.2. He further pointed out to the quarrel between the two families and the accused charging the deceased as responsible for preventing them from attacking the deceased's father P.W.1. 12. Learned Additional Public Prosecutor submitted that the evidence of P.W.2 and P.W.3 and Exs.P2 and P3 positively pointed out that the deceased was fully conscious to make the dying declaration. Going by the trustworthy nature of P.W.2 speaking about the deceased making the dying declaration, rightly the Court below convicted the accused. The deceased died of homicidal violence is thus proved by the post-mortem report marked as Ex.P5 and the evidence of P.W.2 and P.W.5. 13. Heard learned counsel appearing on either side and perused the material on record. 14. A perusal of the evidence of P.Ws.2 and 5 and Ex.P2 and Ex.P5 clearly point out to the extent of the burn injuries on the deceased. P.W.5 - post-mortem doctor pointed out that the deceased died on account of 90% burn injuries. In the evidence of P.W.2, it is clearly stated that the deceased was admitted with 90% burn injuries and that the chances of survival was not there. Going by the extent of burn injuries and the opinion of the doctor that on account of the burn injuries and the hypovolemic shock leading to the death of the deceased, it is clear that the deceased died of homicidal violence. Thus we accept the case of the prosecution in this regard. 15. As regards the act of violence on the deceased, it is seen from the narration that at about 7.00 p.m., on 10.08.2007, the deceased Vijayalakshmi attempted to prevent the accused from attacking her father P.W.1. Enraged by the conduct of the deceased in preventing the accused from attacking her father, the deceased was chased by the accused shouting at her that she would not be allowed to escape. In the process, the first accused poured kerosene over the deceased and the second accused set her ablaze. The other accused attacked P.W.1 with a stick. 16. Ex.P2 is the accident register recorded at 8.05 p.m., wherein, it clearly stated that at about 7.00 p.m., in the backyard of their house, four known persons poured kerosene on the deceased and set her on https://hcservices.ecourts.gov.in/hcservices/ 5 fire. Ex.P1 is the dying declaration made at 9.20 p.m. before P.W.2 and P.W.3, the ward staff nurse, which pointed out to the dispute between the accused's family and the deceased's parents in the morning, followed again in the evening. The dying declaration clearly pointed out to the family dispute in the morning followed again in the evening. At that time, when the deceased went to the garden in the backyard, A-1 Soundararajan poured kerosene on the deceased and set her ablaze. The left thumb impression of the deceased was affixed in the presence of the staff nurse P.W.3. P.W.2 is the doctor who was there at the time of recording the dying declaration. The evidence of P.W.2 pointed out that the deceased was fully conscious at the time of admission in the hospital (Ex.P2) as well as when she made the dying declaration. P.W.2 further stated that P.W.3 was present along with the Superintendent Kalavathi. When he enquired P.W.1, he informed P.W.2 that at about 7.00 p.m., four known persons have poured kerosene over the deceased and set her ablaze. Since the Doctor found that the deceased was suffering from 90% burn injuries and the chance of survival was not there at about 9.20 p.m., while she was in treatment, he recorded a dying declaration from her in the presence of P.W.3 and yet another person. The thumb impression was taken in the presence of P.W.3, who also attested the same. P.W.3, in her evidence, pointed out that the deceased referred the name of Soundararajan (A-1) alone and not others. Apart from P.W.3, Kalavathi and P.W.2 alone were there while recording the dying declaration and only three of them knew about the dying declaration. 17. Although learned counsel for the appellant submitted as to the reliability of Ex.P1 since the prosecution had not examined the third person Kalavathi who was stated to be there when the deceased made the dying declaration, and the prosecution had examined P.W.2 and P.W.3 alone. We do not find that the non-examination of the said Kalavathi would be fatal to the case of the prosecution. As already pointed out, the evidence of P.W.2 categorically pointed out that the deceased was fully conscious at the time of admission in the hospital and in order to reduce the pain, he administered medicines since the deceased was under severe pain. He further submitted that since the deceased was under severe pain, instead of enquiring her, he enquired her father - P.W.1 and recorded the accident register - Ex.P2. A perusal of P.W.3 nurse's evidence, who was there at the time of admission of the deceased, shows that the deceased was fully conscious and she gave a dying declaration. P.W.2 wrote the dying declaration and then read over to the deceased and P.W.3 got the left thumb impression of the deceased and certified the same. A reading of the evidence of P.W.2 and P.W.3 thus clearly point out that in a fully conscious state, the deceased made the dying declaration - Ex.P1. The evidence of P.Ws.2 and 3 are categorical, clear, natural and cogent to persuade this Court to accept the same, particularly as regards the mental status of the deceased to make the dying declaration. 18. As to the contention of the appellant that P.W.2 made no reference as to the dying declaration made at 9.20 p.m., in the first statement recorded on 30.08.2007 and only in the second statement recorded on 15.09.2007 that the same was pointed out and hence, Ex.P1 cannot be relied on, a reading of the evidence of P.W.13 shows that Ex.P1 was sent to the Court directly by P.W.2 immediately on 11.08.2007 itself. As such, we do not find that there was delay in sending the said dying https://hcservices.ecourts.gov.in/hcservices/ 6 declaration to the Court, thereby to reject the reliability of Ex.P1. Secondly, the fact that P.W.2 had not referred about Ex.P1 in his statement originally recorded on 30.8.2007, however, does not, in any manner, make the evidence of P.W.2 an unreliable one, or for that matter, Ex.P1, to implicate the accused in this case. Even though the statement was recorded from P.W.2 subsequently after 45 days and then alone, it referred to the dying declaration, as already pointed out, Ex.P1 had already reached the Court even before P.W.2 made the second statement. We do not find any ground either to doubt or to reject the dying declaration Ex.P1, or for that matter, to reject the evidence of P.W.2 on the aspect of the deceased making the dying declaration before him and P.W.3 and the level of consciousness of the deceased to make the dying declaration. 19. As already pointed out, Ex.P2 as well as the evidence of P.W.2 and P.W.3 speak about the level of consciousness of the deceased, that all the parameters in the deceased at the time of admission was normal. Going by the above-said facts, we have no hesitation in accepting the case of the prosecution, thereby convicting the accused A-1, the appellant herein, based on Ex.P1, sentencing him to life imprisonment. 20. In the light of the above-said facts, we do not find any ground for allowing the Criminal Appeal. Consequently, the Criminal Appeal fails and the same is dismissed. The judgment of conviction and sentence dated 15.05.2008 made in S.C.No.12 of 2008 by the Additional Sessions Judge, Fast Track Court, No.1, Thanjavur, stands confirmed. Sd/- Assistant Registrar (P&A) /True Copy/ Sub Assistant Registrar To 1. THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.I, THANJAVUR 2. THE PRINCIPAL SESSIONS JUDGE, THANJAVUR 3. THE INSPECTOR OF POLICE, THIRUVADAIMARUTHUR POLICE STATION, KUMBAKONAM, THANJAVUR DISTRICT 4. THE SUPERINTENDENT, CENTRAL PRISON, TRICHY 5. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI 6. THE DISTRICT COLLECTOR, THANJAVUR 7. THE DIRECTOR GENERAL OF POLICE, MYLAPORE, CHENNAI +1 CC TO M/S AL. GANDHIMATHI, ADVOCATE S.R NO. 1628 Crl.Appeal (MD) No.309 of 2009 Dated: 12.01.2011 asvm PAM 02.02.2011/9C/6P https://hcservices.ecourts.gov.in/hcservices/