IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.263 of 2008 Shanmugam .. Appellant/Accused Vs. State rep. by The Deputy Superintendent of Police, Periyanaickenpalayam Sub Division, (Crime No.189 of 2006 of Periyanaickenpalayam Police Station), Coimbatore District. .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Special Judge/Principal Sessions Judge, Coimbatore made in Spl. S.C.No.46 of 2006 dated 12.03.2008. For Appellant : Mr.N.Manokaran For Respondent: Mr.P.Kumaresan, APP ***** JUDGMENT (The judgment of the court was delivered by S.RAJESWARAN, J.) This appeal is against the judgment dated 12.03.2008 in Spl. S.C.No.46 of 2006 passed by the learned Special Judge/Principal Sessions Judge, Coimbatore. 2. The appellant/accused was charged under Sec.302 I.P.C. read with Sec.3(2)(v) of SC and ST Act, (Prevention of Atrocities Act) found guilty under Sec.302 I.P.C., convicted and sentenced to undergo life imprisonment with fine of Rs.1000/-, in default to pay the fine amount, R.I. for six months. The accused found not guilty under Sec.3 (2) (v) of SC and ST Act. 3. The brief facts of the case are as under: P.W.1 is residing at Naickenpalayam and he is a coolie. He belongs to Hindu Chakkliar caste. His wife's name is Rani. They have got two children. His wife had not been keeping good health for three months during the relevant period. Hence, she was taken to hospital. Since she did not recover and as per the advise of neighbours, she https://hcservices.ecourts.gov.in/hcservices/ was taken to Vettaikaran Karupparayan temple, offered prayers and returned home. At about 8.00 p.m., P.W.1 left his wife in the house and went to the shop to buy kerosene. At that time, the accused who is a poosari in Masaniamman temple came there and enquired about the health of the deceased. He replied that there was no improvement. The poojari told him that he would go and bring the pooja items. When the P.W.1 returned home after purchase, he found the accused making fire with coal and putting sambrani and chillies in the firepot and it was burning. The accused was also found holding the hands and hairs of the deceased and dipped her head in the firepot. On account of that, the cheek and neck of the deceased got burnt out. On seeing this, P.W.1 shouted and asked the poojari not to do this kind of treatment. In reply to this, the accused said that as a Gounder he knew how to banish the devil out of the chakklier woman (deceased) and asked him to keep quite. Thereafter, when the poojari burnt the camphor on her forehead, P.W.1 drove the accused out of his house and he took the deceased to another Poosari at Mangalapudur where after tying a sacred thread, she was brought home and made to take rest. On the next day, her entire body swelled and at about 6.00 a.m., the deceased was taken to Indumathi hospital at Periyanaickenpalayam. At about 9.00 p.m., the hospital authority told him that it is not possible to treat her in their hospital and asked him to take her to Government Hospital and accordingly, she was taken to Government Hospital and admitted her as an in-patient. At the hospital, police officials came and enquired. On the next day at 11.00 a.m. the deceased wife passed away. P.W.1 went to the police station and gave a complaint (Ex.P1). One Rangasami also signed the Ex.P1. Thereafter, First Information Report Ex.P7 was prepared under Cr.No.189 of 2006 and the final report was forwarded to the Judicial Magistrate. P.W.10 inspected the place of occurrence and prepared an Observation Mahazar Ex.P5 and a Rough sketch Ex.P8. He also recovered M.Os.1 to 9 in the presence of the witnesses. The accused was arrested and remanded to judicial custody. 4.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 14 witnesses and marked 15 exhibits and 9 M.Os. 5. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidences of prosecution witnesses, which were denied by the accused as false. No witness was examined on the side of accused. However, Ex.D1 was marked. After hearing the arguments advanced on either side, the trial court found the accused guilty under Sec.302 I.P.C. and awarded punishment as referred to above and hence this appeal has arisen at the instance of the appellant. 6. Mr.N.Manokaran, the learned counsel appearing for the appellant/accused while advancing the arguments in support of the appeal, submitted that there was a delay of two days in giving complaint which has not been properly explained by the prosecution. According to him, occurrence took place on 8.5.2006 at about 8.00 p.m. and the same was reported to the police on 10.5.2006. The delay https://hcservices.ecourts.gov.in/hcservices/ of two days is fatal to the prosecution case and this failure was not properly considered by the trial court. Further, the learned counsel submits that no materials were produced to show that the deceased was given medical treatment between 8.5.2006 and 10.5.2006 and therefore the conviction under Sec.302 I.P.C. cannot be sustained at all. If any such treatment had been given to the deceased, P.W.4 would have intimated to the police. Therefore, an introduction of P.W.4 at a later stage is only to overcome the delay of two days in giving the complaint Ex.P1. According to the learned counsel for the appellant, the trial court has failed to note that the evidence of P.W.5 would falsify the prosecution case. According to him, the occurrence would not have taken place as spoken to by the prosecution in view of the evidence of P.W.5. There is absolutely no material as to who prepared the firepot in the house of P.W.1. Further, he submits that the implication of the accused for the alleged offence under Sec.3(2)(v) of SC and ST Act was only to magnify the vigour of the issue and on that ground also the judgment is liable to be set aside. As per the evidence of the Doctor (P.W.12), the extent of burn injury was only 10% and if so, it would not have caused the death of the person. According to the learned counsel, the death was due to non attending and non caring the deceased for treatment for two days. Therefore, the death cannot be attributed to the accused and he would not be responsible for the cause of death. The trial court has simply accepted the oral evidence of the prosecution witnesses as gospel truth and convicted the accused even though there was no legal evidence to link the accused with the commission of the crime. He further adds that the trial court ought to have given the benefit of doubt to the accused and at best the accused could be prosecuted only for the offences punishable under Sec.324 of I.P.C. and the act of the accused would not come under the definition of murder. Moreover, there was no dying declaration recorded in this case. Even though the deceased died on 11.05.2006, F.I.R. was registered on 10.05.2006. This aspect also was not taken note of by the trial court. Therefore, the prosecution has miserably failed to prove the guilt of the accused for the offence punishable under Sec.302 I.P.C. and the judgment rendered by the trial court suffers from infirmity and it is liable to be set aside by this Court. 7. The court heard the learned Additional Public Prosecutor on the above contentions and has gone through the documents available before the court. 8. P.W.1, who is the husband of the deceased in his oral evidence has clearly spoken about the entire happenings occurred on those days. This was corroborated by P.W.5, 6 and 7 who are also the eye witnesses along with P.W.1. P.W.8 is the auto driver who deposed that on 8.5.2008, he only took the deceased in his vehicle to Vettaikaranputhur temple and brought her back home. He also deposed that at 8.00 p.m. he again took her in the auto from Naickenpalayam to Mangalapudur and returned home by 11.00 p.m. P.W.4, is the Doctor, Indumathi Nursing Home, Periyanaickenpalayam, who confirmed that on 9.5.2008, at about 7.00 a.m., P.W.1 brought the deceased to the hospital for treatment and on seeing her burnt injuries on the face, she directed P.W.1 to take her to Government Hospital. P.W.12 https://hcservices.ecourts.gov.in/hcservices/ is the Asst. Civil Surgeon of Coimbatore Govt. Hospital who deposed that on 11.05.2008, at about 8.05 a.m., he sent a report to the police station about the death of the deceased. P.W.13 is the Forensic Science Professor of Coimbatore Government Medical College Hospital who opined that the death was due to burn injuries and the after effects. 9. From the above ocular evidence, juxataposed with the relevant material objects received from the scene of occurrence would clearly point out the finger at the accused/appellant and though it was contended that there was no motive to the accused to kill the deceased, it cannot be said that the accused would not know that by dipping and pushing the face of the deceased in the fire-pot and lighting the camphor on her forehead, death would not be caused to the accused. Therefore, once it is established clearly by cogent and reliable evidence that the accused has done the acts, it is clear that the provisions of sec.302 of I.P.C. will get attracted and he has been rightly convicted by the trial court for the offence under Sec.302 I.P.C. 10. This is a case where without any invitation for treatment, the accused went to the house of the deceased and forced her to suffer burn injuries under the guise of treatment. The trial court has also found that the accused had burnt Camphor on the fore-head of the deceased without any reason, which has been clearly spoken to by P.W.1. The evidence of P.W.1, 5, 6 and 7 are the eye witnesses and their evidence cannot be disbelieved and the court below has rightly relied on the same and found the nexus between the injury and the death caused by the accused. The court has rightly found that the deceased person belonging to the schedule caste community and she was forced to suffer burn injury by pressing her neck in the fire-pot and lighting camphor on the fore-head. Thus, the accused caused serious injury which caused her death. The act of the accused would definitely attract the penal provisions of Sec.302 I.P.C. 11. Considering the ocular evidence along with the circumstantial evidence, the submissions made by the learned counsel for the appellant that there are shortcomings and irregularities in the prosecution case cannot be accepted. The act of the accused in going to the house of the deceased voluntarily, without any invitation for treatment to cause her such a serious injury on her face and body, even after the P.W.1 telling the accused not to do this kind of treatment cannot be taken lightly to award a lesser punishment as contended by the learned counsel for the appellant. 12. Therefore, considering the evidence, exhibits and M.Os. produced before the court below, the guilt of the accused, has been proved beyond reasonable doubt. 13. Therefore, the conviction and sentence imposed on the appellant by the trial court cannot be interfered with in this appeal. Hence, this appeal fails and deserves to be dismissed. The conviction and sentence passed by the trial court is affirmed. https://hcservices.ecourts.gov.in/hcservices/ 14. In the result, this Criminal Appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vaan To 1.The Special Judge/Principal Sessions Judge, Coimbatore. 2.The Inspector of Police, Periyanaickenpalayam Police Station,Coimbatore 3.The Public Prosecutor, High Court, Madras. 4. The Superintendent, Central Prison, Coimbatore. 5. The District Collector, Coimbatore. 6. The Director General of Police, Chennai - 4 7. The Section Officer, Criminal Section High Court, Madras - 104. 8. The Deputy Superintendent of Police, Periyanaickenpalayam Sub Division, Coimbatore District. 1 cc To Mr.M.N.Manokaran, Advocate, SR.68913 CRL.A.NO.263 of 2008 NM(CO) SRA(06/01/2009) https://hcservices.ecourts.gov.in/hcservices/