In the High Court of Judicature at Madras Dated: 20.07.2006 Coram The Honourable Mr.JUSTICE R.BALASUBRAMANIAN and The Honourable Mr.JUSTICE M.JEYAPAUL Criminal Appeal No.1308 of 2003 & C.M.P.No.1601 of 2006 1. Palanisamy & Chinnasamy @ Vakkil 2. Sasikumar @ Sasi 3. Kannan 4. Nagappan .... Appellants Vs. State rep. by Inspector of Police, Veeranam Police Station, Salem District. .... Respondent APPEAL under Section 374 of the Code of Criminal Procedure against the judgment dated 2.1.2003 made in S.C.No.275 of 2002 on the file of Additional District Sessions Judge (Fast Track Court-II), Salem. For Appellants : Mr.R.Sankarasubbu For Respondent: Mr.N.R.Elango, Addl. Public Prosecutor J U D G M E N T (Judgment of the Court was made by R.BALASUBRAMANIAN,J) Appellants four in number were tried in S.C.No.275 of 2002 on the file of the Additional Court of Sessions, Salem for the following offences: Section 294 (b) I.P.C. - A1 and A2 Section 302 read with 34 I.P.C.- A1 to A4 Section 324 I.P.C. - A3 and A4 https://hcservices.ecourts.gov.in/hcservices/ At the end of the trial, the learned trial Judge found all the accused guilty of the offences referred to earlier and sentenced A1 and A2 to undergo one year rigorous imprisonment for the offence under section 294 (b) I.P.C.; imprisonment for life against all the accused for the offence under Section 302 read with 34 I.P.C. and one year rigorous imprisonment to accused 3 and 4 for the offence under Section 324 I.P.C. The sentences were directed to run concurrently. Hence the present appeal. Heard Mr.R.Sankarasubbu, learned counsel appearing for the appellants and Mr.N.R.Elango, learned Additional Public Prosecutor appearing for the State. 2. The prosecution case is that accused 1 and 2 at about 7.30 p.m. on 10.2.2002 abused Muthulakshmi, aged 13 in a filthy language and in the course of the same transaction, A1 poured kerosene on Muthulakshmi; A2 threw a lighted match stick on her and A3 and A4 prevented P.W.1 from rescuing Muthulakshmi, leading to the death of Muthulakshmi at 11.20 p.m. on 18.2.2002 and therefore punishable for the offence under Section 302 read with 34 I.P.C. It is the further case of the prosecution that in the course of the same transaction, A3 and A4 had also assaulted P.W.1 with sticks causing injury on his person and therefore they are punishable for the offence under Section 324 I.P.C. In substantiation of their case, the prosecution examined P.Ws.1 to 13 and marked Exs.P.1 to P.24 and M.Os.1 to 4. The defence examined a police constable on their side as D.W.1 and marked Ex.D.1, the statement of Muthulakshmi – since deceased, which she is stated to have given while alive. 3. P.W.1 is the grand father of Muthulakshmi – since deceased and he knows the accused. P.W.2 is the son of P.W.1 and father of the deceased. About eight months prior to P.W.1 giving evidence in court (the evidence was recorded on 11.12.2002) A1 and A2 had made fun of Muthulakshmi while she was grazing cattle in the lands, which she accordingly informed to P.W.1. This made P.W.1 to question A1 and A2 as to why they had done like that and A1 and A2 responded as to who P.W.1 is to question it. Ten days thereafter, A3 and A4 under intoxication came P.W.1's house at about 6.00 p.m. and created a scene. At that time, A1 and A2 brought kerosene; A1 poured kerosene on P.W.1's grand daughter, namely, the deceased. Both A1 and A2 threw a lighted match stick on Muthulakshmi. P.W.1 and his elder brother tried to save Muthulakshmi and at that time, A3 attacked on the head of P.W.1 with a stick and A4 also with a stick attacked on his head. M.O.1 is the kerosene container and M.Os.2 and 3 are the sticks in the hands of A3 and A4. M.O.4 is the match box. Muthulakshmi suffered burn injuries all over her body and she was 19 years on that day. P.W.2 took P.W.1 and Muthulakshmi to the Government Hospital, Salem, where the police examined him and recorded his statement, in which, he had put his left thumb impression. Ex.P.1 is the said complaint. P.W.2 is the father of Muthulakshmi and son of P.W.1. As far as the occurrence proper is concerned, his evidence is that he ran towards the house after seeing his https://hcservices.ecourts.gov.in/hcservices/ daughter in flames and at that time, he saw A1 and A2 dropping the kerosene container and running. When he asked his daughter as to what had happened, his daughter informed him that A1 poured kerosene on her and A2 set fire to her. P.W.1 also informed him that he was assaulted by A3 and A4. He took his father/P.W.1 and his daughter/deceased to the hospital, where he was examined by the police. 4. P.W.12 is the Head constable in the investigating police station. While he was on duty on 11.2.2002, he received information over wireless from the Government Hospital at Salem intimating that P.W.1 and Muthulakshmi – since deceased have been admitted in the hospital. Immediately, he went to the hospital, where he found Muthulakshmi not in a position to talk. He observed P.W.1 and then examined him. P.W.1 gave a statement, which he reduced into writing; read it over to him and then he took his left thumb impression in it. He registered that complaint as Ex.P.1 in his police station Crime No.148 of 2002 for offences under Sections 294(b), 324, 341 and 307 I.P.C. Ex.P.2 is the printed first information report prepared by him and he sent the express records to the Court as well as to the higher officials. He received Ex.P.21, the death intimation from the hospital that Muthulakshmi died at 11.20 p.m. on 18.2.2002, which he handed over to the investigating officer. P.W.13 is the investigating officer, who on receipt of the express records in this case, initially registered the case under Section 307 I.P.C., proceeded to the scene of occurrence where in the presence of P.W.5 and another, he prepared the observation mahazar Ex.P.2 and the rough sketch Ex.P.22. At 4.00 p.m. on the same day in the presence of P.W.5 and another, he recovered the plastic kerosene container; the match box and the sticks used by A3 and A4 under a mahazar attested by witnesses. Then he examined P.W.1 and others by recording their statements. At 11.30 a.m. on 12.2.2002, he arrested all the accused, brought them to the police station at 1.00 p.m. and then he sent them for judicial remand. On receipt of the death intimation from the Government Hospital on 19.2.2002, he altered the section of offence from one under Section 307 I.P.C. to one under Section 302 I.P.C. and prepared the altered printed first information report Ex.P.23, which he sent to the Court as well as to the higher officials. 5. P.W.11 is the duty medical officer in the Government Hospital at Salem. On 11.2.2002, P.W.1 was brought before him by his son P.W.2 for injuries stated to have been sustained by him at 7.30 p.m. at the hands of five males. On examination, he found injuries on his person and issued Ex.P.16, the wound certificate. Ex.P.17 is the intimation sent by him to the police. The symptoms noted by him are a contusion over the right scalp parietal region and a bleeding right nose. Before P.W.11, Muthulakshmi – since deceased was brought on 10.2.2002 for injuries stated to have been sustained by her at 7.30 p.m. on that night, at the hands of four known persons, by pouring kerosene and then setting fire. Ex.P.18 is the admission card and she had suffered 40% burn injuries. Ex.P.19 is the accident register issued by him for her. P.W.10 is the police constable, who identified the dead body of Muthulakshmi in the hospital for post- https://hcservices.ecourts.gov.in/hcservices/ mortem. After post-mortem, he handed over the dead body to the relatives. P.W.8 is the duty medical officer in the Government Hospital at Salem, who on receipt of Ex.P.13 the requistion for post-mortem, conducted post- mortem on the dead body of Muthulakshmi. During post-mortem, he found various symptoms on her, as noted by him in Ex.P.14, the post-mortem report. The symptoms noted by him are as here under: Injuries: Superficial infected burns wounds present over the face, and front and back of the neck, front of the chest, both shoulders, both elbow, and both lower arms and back of the trunk except abdomens and lower limb. Deep burns wounds are present over the face, neck front of the chest, and both shoulders. The burns area reddish in colour, singing of eye brows and eye lashes. Head shaved. Other findings: Finger and toe nails intact, cyanosed. Peritonial cavity: empty. Pleural cavity: Empty, Heard: Chambers and valves normal cavity contained fluid blood, coronary vessels and great vessels normal. Lungs: C/s congested; Hyoid bone: Intact Stomach contained 30 gms of chyme present, no specific smell Mucosa congested. Liver, Spleen, Kidneys: On C.s congested. Small intestine: Yellowish chyme present, no smell Mucosa congested. Bladder: empty; Uterus: empty; normal in size. Pelvis, Head, Membrane: Intact, Brain:C/s congested. Spinal coloumn: intact." Doctor opined that death would have occurred as a result of shock due to effect of burns. 6. P.W.6 is the Judicial Magistrate No.2 at Salem. At 2.00 p.m. on 12.2.2002 when he was in his office, he received Ex.P.4, the requisition from the hospital to record the dying declaration of Muthulakshmi. Accordingly, he reached the hospital at 2.30 p.m. and by examining Muthulakshmi, got satisfied that she was in a fit and conscious state of mind. He secured the presence of P.W.9, the duty doctor to be by his side when he was testing the fit and conscious state of mind of Muthulakshmi. Before recording the dying declaration P.W.6 made an endorsement Ex.P.5 stating that the patient is conscious and fit to give dying declaration. Then he proceeded to record the statement by examining her. She stated as here under:- the translation in English is by us: https://hcservices.ecourts.gov.in/hcservices/ "My father is working as a coolie in Leigh Bazaar, Salem. At 7.00 p.m. on 10.2.2002, I was in my house; my father and grand father were talking aloud near the house; A1 and A2 entered my house and they found fault with me as to why I informed my house that A2 abusing me one week earlier; I was watching television; A1 had a Kerosene container and poured kerosene on me; A2 threw a lighted match stick and then they ran away; the elders came and doused the fire." Ex.P.6 is the said dying declaration. At the foot of the dying declaration P.W.9 had given a certificate Ex.P.15 stating that the patient is fully conscious and in a fit state of mind during recording the dying declaration. Further down, P.W.6 had given his certificate stating that after recording the dying declaration, he read it over to her, she admitted the same as true and correct and that he was satisfied that the patient is fully conscious and in fit state of mind during recording the dying declaration. P.W.9, the duty doctor present by the bed side of Muthulakshmi, when P.W.6 was recording the dying declaration, had also stated that he had given the certificate Ex.P.15 at the foot of the dying declaration. P.W.7 is the Judicial Magistrate No.1, Salem. On receipt of Ex.P.8, the order from the Chief Judicial Magistrate, she proceeded to examine Palani, Arumugam, Ammasi and Kalliappan under Section 164 of the Code of Criminal Procedure. Ex.P.8 order is passed on the basis of Ex.P.7 the application filed by the investigation officer. The witnesses were examined by her on 27.3.2002 and those statements are Exs.P.9 to P.12. 7. P.W.3 is a resident of the same place where P.Ws.1,2 and the deceased were living. He would state that P.W.1 told him that his grand daughter (since deceased) complained to him of the incident that took place prior to the occurrence in question, during which she was abused; P.W.1 questioned accused 1 and 2 as to why they had done like that, for which, accused 1 and 2 responded stating that they would behave only like that. However, he would admit that he had not seen that earlier occurrence and he only heard about it. As far as the occurrence proper is concerned, he would state that when he was in the tea shop at 7.30 p.m., persons present there told him that there was a commotion in his brother's house and accordingly he went there, where he found Muthulakshmi standing outside her house. He also saw the first accused pouring kerosene on Muthulakshmi from the container which he was having and A2 throwing a lighted match stick on her. All of them went to the rescue of Muthulakshmi and at that time, P.W.1 was also assaulted. P.W.1 and Muthulakshmi were taken to the hospital. P.W.4 is the mother of the deceased. She would state that around 7.30 p.m. on the occurrence day, her daughter was set fire to and her father-in-law was also assaulted. She also noticed that her daughter crying in pain. She also noticed the first accused throwing down the kerosene container and then running, while A2 throwing down the match box and running. She tried to rescue her daughter along with others. P.W.5 witnessed the preparation of Ex.P.2 the observation mahazar and recovery of the incriminating objects under Ex.P.3 https://hcservices.ecourts.gov.in/hcservices/ as referred to earlier. P.W.13 conducted inquest over the dead body and prepared Ex.P.24 the inquest report. After completing all the legal formalities, P.W.13 filed the final report against the accused before the Court on 30.4.2002 for offences under Sections 302 read with 34, 294 (b) and 307 I.P.C. 8. When the accused were questioned under Section 313 of the Code of Criminal Procedure based on the incriminating materials made available against them, they denied each and every circumstance put up against them as false and contrary to facts. They examined one witness on their side as D.W.1. But we find from the records that after the cross examination of P.W.13, the investigating officer in this case, was completed at the first instance, the defence examined the very same officer on 20.12.2002 by further cross examining him. In such further cross examination of P.W.13 conducted on 20.12.2002, (characterised by the learned trial Judge as D.W.1) had deposed as here under: "On 11.2.2002 I recorded the statement of Muthulakshmi; that was in the evening; Ex.D.1 is the said statement; Question: Has she told you that she was in a conscious state of mind? Answer: Since I found her in a conscious state of mind, I proceeded to record the statement as narrated by her; I did not record in the statement that she was in a fit and conscious state of mind; I deny that she was not in a fit and conscious state of mind while giving statement. But however, she was in a fit and conscious state of mind; Muthulakshmi told the doctor that in perpetrating the crime on her, four males and two females took part. Question: Have you investigated the case from that angle? Answer: yes; In the investigation, it came to light only four accused, who are before the Court, alone have committed the crime and no witness spoke about the involvement of any women in the crime; Muthulakshmi – since deceased also do not say anything about that in her statement and that is why I filed the final report only against the accused; it is true that P.W.1 had told the doctor that he had suffered injuries at the hands of five known persons. However, during investigation, P.W.1 told me that A3 and A4 alone attacked him and I accordingly proceeded further with the investigation. I deny that Muthulakshmi-since deceased gave a statement during investigation as narrated by me. Ex.D.1 is the statement so recorded by P.W.13." 9. Mr.R.Sankarasubbu, learned counsel appearing for the appellants would submit that the evidence of P.W.s 1 and 3 do not establish the involvement of any of the accused in the crime and therefore rejecting their evidence, this Court can acquit all the accused. Assuming that the entire prosecution case, as spoken to by the witnesses, is true, yet in https://hcservices.ecourts.gov.in/hcservices/ the light of Ex.P.6, the Judicial dying declaration, the conviction under Section 302 read with 34 I.P.C. against all the four accused cannot be legally sustained, since the judicial dying declaration implicates only A1 and A2. Without prejudice to the above, learned counsel would also submit that recording of the dying declaration is not free from doubt and therefore rejecting the judicial dying declaration, this Court can acquit all the accused from the crime. It is next submitted that in the evidence of P.W.2 (cross examination), it appears that there was a quarrel for quite some time preceding the crime perpetrated on Muthulakshmi – since deceased and therefore, Exception 4 to Section 300 of the Indian Penal Code stands squarely attracted to the case on hand. On top of this and as the last argument, learned counsel would submit that even if this Court accepts that the prosecution case stands fully established, then from the available materials it can be seen that both A1 and A2 are adolescent offenders attracting the provisions of the Tamilnadu Borstal Schools Act. If that is so, even though this court could confirm the conviction on the evidence available, yet this Court has to necessarily set aside the sentence of imprisonment imposed on A1 and A2. Under the provisions of The Tamilnadu Borstal Schools Act, at the maximum, A1 and A2 could be detained only up to their age of 23 and since each of them had already crossed the upper age limit of 23, this Court can straight away quash the sentence and set them at liberty. It is then submitted by the learned counsel for the appellants that since appellants 1 and 2 had already crossed the age of 23, assuming the Government alone has the power to deal with a case where life imprisonment is the sentence imposed, yet the Government could not exercise the power in view of appellants 1 and 2 having crossed the upper age limit prescribed under the above referred to Act. Therefore, his submission is that, assuming for a minute without conceding that this Court has no power to send appellants 1 and 2 to a Borstal School, in view of Section 8 of the said Act, yet in view of the Government not being in a position to exercise their power under Section 10-A of the Act, as stated above, this Court can still extend the provisions of the benevolent provision of Section 10-A of the Act in favour of A1 and A2 and quash the sentence. Learned counsel pressed into service Criminal M.P.No.1601 of 2006, already filed by appellants 1 and 2 to determine their age. In sustaining his point based on the provisions of the Tamilnadu Borstal Schools Act 1925, learned counsel relied upon a number of judgments about which we will refer a little later in this judgment. Mr.N.R.Elango, learned Additional Public Prosecutor would contend that on the merits of this case there cannot be any escape from the only conclusion that in any event A1 and A2 are guilty of the offence of murder, though there may be some vagueness in the prosecution case against A3 and A4 are concerned. As far as the application of the Tamilnadu Borstal Schools Act 1925 is concerned, learned Additional Public Prosecutor would submit that going by the provisions of the Act, this Court would have power to deal with the case of an adolescent offender under the provisions of the Tamilnadu Borstal Schools Act only in cases where there is no imprisonment for life. According to him, whenever a Court sentenced a person to imprisonment for life, then application of https://hcservices.ecourts.gov.in/hcservices/ Section 8 of the Tamilnadu Borstal Schools Act stands excluded. According to him, even in such cases, where imprisonment for life is imposed on an adolescent offender, then under Section 10-A of the Tamilnadu Borstal Schools Act, the Government alone has the power to deal with such an adolescent offender. According to him, in all cases where imprisonment for life is given, it is only the Government and the Government alone exercising power under Section 10-A of the Tamilnadu Borstal Act, take a decision as to whether the convict prisoner can be dealt with under the provisions of the Tamilnadu Borstal Schools Act or not and it does not lie within the purview of this Court. In support of his argument, learned Additional Public Prosecutor also relied upon a number of judgments, which we will discuss later in this judgment. 10. In the light of the arguments advanced by the counsel on either side, we went through the entire materials on record giving our due attention. As far as the merits of the case is concerned, besides the oral evidence of P.Ws. 1 and 3, we have the judicial dying declaration given by Muthulakshmi, while alive to P.W.6, the Judicial Magistrate. Ex.P.6 is the judicial dying declaration. Let us now find out, to start with, whether there is any direct evidence regarding the crime and if it is so, is it acceptable? P.W.1 is the grand father of the deceased. He had also suffered an injury on his person and according to him, it is in the course of the same transaction. Ex.P.16 is the wound certificate issued to him by P.W.11. P.W.1's evidence is that as he saw his grand daughter in flames due to the act perpetrated by A1 and A2, he ran to rescue her and at that time, A3 and A4, each armed with a stick assaulted on his head, resulting in injuries to him. P.W.11 is the duty medical officer in the Government Hospital at Salem, who had examined P.W.1 on 11.2.2002 for the injuries stated to have been sustained by him at 7.30 p.m. on the previous night. Ex.P.16 is the accident register, which shows that P.W.1 had suffered a contusion over the right scalp parietal region and a bleeding right nose. It is seen from Ex.P.16 that P.W.1 had not suffered any fracture. The injuries on the other hand are stated to be simple and the opinion is shown to be based on X-ray findings. Though P.W.1 had been cross examined at length on the manner in which he shown to have suffered injuries, yet we do not find any material worth mentioning in his evidence to disbelieve him that he had also received injuries in the course of the same transaction. Therefore, for the present, we conclude that P.W.1 was present at the crime scene where the crime was perpetrated on his grand daughter Muthulakshmi. 11. P.W.1 is the grand father of the deceased and father of P.W.2. P.W.1 is aged about 75 years. His evidence shows that a few days prior to the occurrence day, his grand daughter, namely the deceased, was made fun of by A1 and A2, which she had brought to his notice and therefore he questioned A1 and A2. We do not find anything unusual in the conduct of P.W.1 in resorting to such action on his grand daughter bringing to his notice about the bullying by A1 and A2. His evidence shows that ten days https://hcservices.ecourts.gov.in/hcservices/ after the occurrence, namely, the occurrence day, A3 and A4 under intoxication came in front of his house and started creating a scene and that resulted in a commotion opposite to his house. As the commotion was going on, A1 and A2 had appeared there and A1 was having a kerosene container in his hands. P.W.1 would state that A1 after pouring kerosene on his grand daughter, namely, Muthulakshmi set fire to her and A2 also threw a lighted match stick. He had struck to his evidence on the occurrence proper in his evidence in cross and therefore his evidence in chief as to how his grand daughter had come to sustain burn injuries at the hands of