Bail Slip - The Appellant/Accused was enlarged on Bail by order dated 22.05.2007 and made in Crl.A.NO.811/2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19-06-2008 THE HON'BLE MR.JUSTICE P.D.DINAKARAN AND THE HON'BLE MR.JUSTICE K.N.BASHA CRIMINAL APPEAL NO: 811 OF 2006 Santhi .. Appellant/sole accused Vs State rep.by Inspector of Police, Mohanur Police Station, Namakkal District. (Crime No.6 of 2006) .. Respondent/Complainant Appeal filed under Section 374 (2) Cr.P.C against the judgment dated 31.8.2006 made in S.C.No. 60 of 2006 on the file of the learned Principal District cum Sessions Judge, Namakkal. For appellant : Mr.B.Vasudevan For respondent : Mr.N.R.Elango, Addl.Public Prosecutor JUDGMENT (Judgement of the Court was delivered by P.D.DINAKARAN,J.,) This appeal has been preferred against the judgement made in S.C.No. 60 of 2006 on the file of the learned Principal District cum Sessions Judge, Namakkal. By the impugned judgement, the appellant was found guilty for committing an offence of mariticide, and was, accordingly, convicted and sentenced to undergo imprisonment for life under Section 302 IPC. https://hcservices.ecourts.gov.in/hcservices/ 2. The prosecution case, as per the charge is that the deceased/husband had an adulterous relationship with a co-worker woman, namely Rajarajeswari alias Rajeswari and in view of the wordy quarrel ensued in that regard between the accused/wife and deceased/husband in their house on 6.1.2006, at about 4.30 a.m., the accused/wife, infuriated by the by the reply made by her husband that he would continue such illicit intimacy with the said Rajarajeswari, with an intention to kill the deceased/husband, took out Koduval and stating that "he must die at once", cut him on various parts of body and thereby caused his instantaneous death and thus, committed the offence punishable under Section 302 IPC. 3. The genesis of the prosecution version, as unfolded by the prosecution witnesses during the course of trial, are as follows:- (a) P.Ws.1 to 4, who are eye-witnesses to the occurrence have turned hostile. However, their evidence may not be thrown out of the record in toto, and, to some extent, we can rely upon it. The deceased is the uncle of P.W.1 who is residing nearby the house of the accused and deceased. According to P.W.1, at about 6.30 a.m., he heard the noise from the house of the accused and when he reached there, he saw a big crowd gathered and he went inside and saw Manivannan with injuries and also saw the accused/wife Santhi sitting by the side of injured Manivannan and she was weeping. Thereafter, the Ambulance Van came there and Manivannan was shifted to Government Hospital, Namakkal, where he died. It is stated by him that he simply attested Ex.P.22, complaint/Dying Declaration given by the deceased, as instructed by the Investigation officer, and at the time of his signing, the Doctor was present. P.W.2 who is also a distant relation of the accused speaks to the same effect and did not support the case of the prosecution. (b) P.W.3 is the daughter of the accused and deceased and she was studying 5th standard at the time of occurrence. According to her, she was sleeping and when she woke up due to the hue and cry made by several persons, she saw her father lying with injuries in a pool of blood. According to her, she did not know how her father sustained the injuries. P.W.4 is the son of the accused and the deceased who is aged about 8 years at the time of occurrence and he also stated that he was sleeping and only when he woke up, he saw his father lying with bleeding injuries and that he did not know how his father sustained such injuries. (c) P.W.5, an independent witness, residing nearby, has stated that the deceased used to drink and pick up quarrel with his wife frequently and on the date of occurrence in the morning when he was returning from his field saw the Ambulance parked in front of the house of the deceased. He went there and it was told by the crowd https://hcservices.ecourts.gov.in/hcservices/ gathered there that the accused Santhi killed her husband Manivannan with the Koduval since he was keeping a concubine. Later, he heard the death news of the said Manivannan and went to Hospital by 3.00 pm., and saw the injuries over his dead body. (d) P.W.6, who is none other than the alleged concubine of the deceased Manivannan deposed that she is working in the Rice Mill along with the deceased and others and she used to speak with the deceased and often the accused used to come to the Rice Mill to see her husband. On one such occasion, when P.W.6 was speaking with the deceased, the accused came there, suspecting their relationship, picked up quarrel with the deceased/husband and thereafter she even did not send her husband to the said Rice Mill and shifted the residence to Bramandapalayam. P.W.7 is father of the accused. He deposed about the frequent quarrels between the accused and the deceased. P.W.8 one of the mahazar witness to Ex.P.2, Observation Mahazar, though admits his signature, did not support the prosecution case. P.W.9, who is another mahazar witness to Ex.P.2, though initially admitted his signature, later denied and thus he has also turned hostile. (e) P.W.10 is the Village Administrative Officer. According to him, on the date of occurrence at 11.30 a.m., the accused was giving voluntary confession statement before the Investigating Officer, and he has attested in the confession statement. Pursuant to the voluntary confession, the accused took the police party to a stream from where she took out the bloodstained Koduval concealed in a thorny bush and handed over the same to the Police Officer. Thereafter the accused took them to her house where she tendered the bloodstained saree. The Koduval (MO.1) and Saree (MO.2) were recovered under cover of mahazars with attesting witnesses pursuant to her confession. P.W.11 is the Driver of the Ambulance and according to him, he was called to take a victim to the Hospital and at 6.00 a.m., he reached the scene of occurrence and saw the victim with multiple bleeding injuries and he heard that the wife inflicted cut injuries on her husband. (f) P.W.14 is another eye witness. He has stated that on the date of occurrence, there was a big hue and cry at about 4.30 a.m., from the house of the accused and when he reached there, somebody told him, that the accused caused injuries on the deceased. Thereafter, he returned and some time later when the Ambulance came, he again went there and at that time when the Panchayatdars asked Manivannan as to who had inflicted such injuries, Manivannan replied that it is his wife, who caused such injuries. Thereafter, the accused also admitted her guilt. https://hcservices.ecourts.gov.in/hcservices/ (g) P.W.16, is the Doctor who has admitted the victim in the Emergency Ward and treated the victim and issued the Accident Register Ex.P.14. He found the following injuries on the victim:- "1. An incised wound 6 cm x 2 cm on right side upper neck exposing the muscles and blood vessels. 2. An incised wound 3 cm x 1 cm x muscle deep on right side lower neck. 3. An incised wound 7 cm x 1 ½ cm x muscle deep on right side lower jaw. 4. An incised wound 6 cm x 3 cm x muscle deep at he left shoulder. 5. An incised wound 3 cm x 1 cm x muscle deep on outer side of left upper arm. 6. An incised wound 6 cm x 2 cm x muscle and bone deep on front and lateral side of left wrist. 7. An incised wound 1 ½ cm x 3/4 cm on back of left forearm". (h) P.W.16 Doctor, deposed that the victim told before him that his wife has attacked him with Koduval at 4.30 a.m., in the house and at the time of giving treatment the victim was conscious. He further deposed that considering the deteriorating health condition, he advised his successive duty Doctor to arrange for recording of the dying declaration. (i) P.W.18 is the Sub Inspector of Police who recorded the complaint/dying declaration from the deceased in the Hospital in the presence of the doctor. According to him on receipt of the intimation over microphone, he reached the Hospital by 8.00 a.m., and recorded the dying declaration and obtained his thumb impression in the presence of the Doctor who was treating him, and P.W.1. In the said complaint/dying declaration, the Doctor also made endorsement that the victim was in a fit state of mind at the time of giving such complaint/dying declaration, Ex.P.22. Thereafter, he has registered a case in Crime No:6 of 2006 under Section 307 IPC and sent intimation to his higher Police Officers. On the death of the victim, he altered the offence into Section 302 IPC and prepared and sent the Express Report to the learned Judicial Magistrate. (j) P.W. 17 is the Doctor, in whose presence, the complaint/dying declaration was recorded by P.W.18, Sub Inspector of Police. It is her evidence that by 8.00 a.m., she has sent intimation to the Judicial Magistrate for recording the dying declaration of the victim and in the meanwhile, P.W.18, the Sub Inspector of Police came and obtained the complaint from the victim and throughout the time of giving such statement, the victim was conscious and in good state of mind. In the said statement, he has made an endorsement to https://hcservices.ecourts.gov.in/hcservices/ the said effect. Since blood vessels were found cut, the victim was advised to take treatment from Mohan Kumaramangalam Government Headquarters Hospital, Salem. However, by 8.40 a.m., the victim became unconscious and before the Judicial Magistrate-I, Namakkal who arrived at 8.45 pm., she has told that the victim was not in a fit condition to give dying declaration. Her endorsement in the form is marked as Ex.P.17. The victim succumbed to the injuries at 9.00 a.m., (k) P.W.21 is the Investigating Officer in this case. On receipt of FIR copy under Section 307 IPC, he visited the place of occurrence at 10.00 a.m., and prepared Observation Mahazar Ex.P.27 and Rough Sketch, Ex.P.28. He also recovered the sample cement plaster and bloodstained cement plaster from the place of occurrence which are M.O.5 and M.O.6 respectively under Ex.P.29 mahazar. He received the Express Report at 11.30 a.m., and arrested the accused in the presence of witnesses. The accused volunteered to give a statement, which was recorded in the presence of witnesses. The accused also produced the bloodstained M.O.1 Koduval from the thorny bush situate on the northern bank of the stream. Her bloodstained Saree (M.O.2) which was worn by her was also recovered under Ex.P.7 mahazar. He conducted inquest over the dead body of the deceased between 2.30 pm., and 4.00 pm., in the presence of panchayatdars in the Hospital mortuary. Thereafter, the Investigating officer arranged for postmortem of the dead body and sent Requisition Letter Ex.P.20 to the Doctor through the Head Constable Gnanadurai. (l) P.W.17, Doctor who conducted the autopsy over the dead body, found the following external injuries and issued Ex.P.21, Postmortem Certificate. "1. An incised wound over the right side neck 6 x 4 cm exposing the underlying cut vessels, muscles, tendons and bones. 2. An incised wound 4 x 1 cm x ½ cm below the above wound. 3. An incised wound over the right mandible 7 x 1 cm 4. An incised wound over the left shoulder 6 x 2 cm 5. An incised wound over the left upper arm 4 x 2 cm 6. An incised wound just above the left elbow 6 x 1 cm 7. An incised wound over the left wrist 6 cm x bone depth 8. Three small incised wounds each about 1 cm in length seen over the left fore arm. C/s.Wound Nos.1 and 2 shows cut ends of jugular veins, muscles and II cervical vertebra injured." https://hcservices.ecourts.gov.in/hcservices/ (m) P.W.17 also gave the opinion that the deceased would appear to have died of shock and haemorrhage due to injury to major blood vessels in the neck about 6 to 12 hours prior to the post-mortem examination. (n) Continuing his investigation, P.W.21, examined and obtained statements from the witnesses and also requested the Judicial Magistrate-II, Namakkal to send the material objects for chemical analysis. The Chemical Analysis Report and Serological Report are Exs.P.11 and P.12. He obtained statement from the Doctor who treated the victim and who conducted the post-mortem as well as from the Chemical Analyst. After completing his investigation, laid the charge sheet against the accused for the offence punishable under Section 302 IPC. 4. After filing of the final report, the case was committed to the Court of Sessions, which was taken up in Sessions Case No: 60 of 2006 by the learned Principal District and Sessions Judge, Namakkal, and charge was framed by the learned Sessions Judge against the accused, for which, the accused denied her complicity with the crime and therefore the trial of the case was taken up. In order to substantiate its case before the Sessions court, the prosecution relied on the ocular versions of P.Ws.1 to 21 and marked Exs.P.1 to P.31 and also produced M.Os.1 to 6. 5. On conclusion of the examination of the prosecution witnesses as referred to above, when the accused was questioned under Section 313(1)(b) of the Criminal Procedure Code with regard to the incriminating materials appearing against her in the evidence of the prosecution witnesses, she denied each and every incriminating material as false and pleaded not guilty. However, no witness was examined and no document was marked on the side of the defence. 6. The Learned Sessions Judge after perusal of the materials on record and after hearing the arguments made by both the parties, convicted and sentenced the appellant as mentioned above and aggrieved against the conviction and sentence, the present appeal is preferred. 7. Learned counsel for the appellant contended since P.Ws 1 to 4, who are direct eye witnesses and P.Ws. 8 and 9, who are mahazar witnesses for observation mahazar and rough sketch did not support the case of the prosecution and turned hostile, the case solely rests on the evidence of P.W.16 Doctor and P.W.18 Police Officer, before whom, it is alleged that the accused gave dying declaration, Ex.P.22. https://hcservices.ecourts.gov.in/hcservices/ 8. Learned counsel also submitted that when the Police Officer (P.W.18) recorded the dying declaration between 8.00 a.m., and 8.30 a.m., the victim was in a sound state of mind, but just 15 minutes thereafter, when the Judicial Magistrate came to record the dying declaration, the victim was not in a position to give dying declaration, the very recording of dying declaration by the Police Officer itself, particularly in a very detailed and coherent manner, is unbelievable. In the absence of any independent eye witness to the occurrence, considering the circumstantial evidence, the offence under Section 302 is not proved, and at the most, it has to be brought under the First Exception of Section 300 IPC and the accused can be sentenced for sudden and grave provocation under Section 304 (I) IPC. 9. On the other hand, the learned Additional Public Prosecutor, arguing to sustain the conviction and sentence, submitted that the case of the prosecution has been proved beyond any reasonable doubt based on the dying declaration and ocular versions of the prosecution witnesses, particularly, VAO and Doctors and P.W.17, Police Officer, who has recorded the dying declaration and also the serological report. 10. We have given our careful and anxious consideration to the rival contentions put forward by either side and also perused the entire materials available on record and considered each and every circumstance put forward by the prosecution. 11. The evidence of P.W.17, Doctor and the Postmortem Certificate, Ex.P.9 issued by him would show that the deceased died due to shock and haemorrhage because of the major injury on the neck. The Doctor also stated in his evidence that the injuries could have been caused by a weapon like, M.O.1 Koduval. Thus, the external injuries found on the body of the deceased would lead to the definite conclusion that it is a homicidal death. 12. Now, the point that arises for consideration in this appeal is whether the prosecution has brought home the guilt of the accused beyond all reasonable doubts? 13. It is not in dispute that conviction can be based solely on the dying declaration given by the deceased himself before the Sub Inspector of Police, in the presence of the Doctor. Though, the admissibility and reliability of the dying declaration is being challenged by the learned counsel for the appellant, it is well settled law that a dying declaration made to a police officer is admissible in evidence under Section 32 of the Indian Evidence Act. However in view of the exception provided in Sub-section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to https://hcservices.ecourts.gov.in/hcservices/ leave such practice of recording the dying declaration being done by availing the services of a Magistrate, if it was possible to do so and the only exception is when the deceased was in such a precarious condition that there was no other alternative left, except the statement being recorded by the Investigating Officer or the Police Officer. 14. In the present case, P.W.16, Doctor, who admitted the victim in the Emergency Ward, at 7.20 a.m., gave initial treatment and advised his successive Duty Doctor, P.W.17 to arrange for recording of the dying declaration considering the serious condition of the victim. Accordingly, P.W.17 also sent intimation to the Judicial Magistrate, Namakkal, under Ex.P.16, and on such intimation the Judicial Magistrate came to the Hospital by 8.45 a.m., In the meanwhile, between 8.00 a.m., and 8.30 a.m., the P.W.18, the Sub Inspector of Police, came to the Hospital and in the usual course of investigation, recorded the complaint Ex.P.22 from the victim in the presence of P.W.1 and P.W.17 Doctor who has confirmed the conscious state of the injured victim at the time of recording the statement as seen from her endorsement in Ex.P.15, and based on such complaint, the FIR came to be registered at 9.00 a.m., for the offence punishable under Section 307 IPC. According to the evidence of P.W.17 Doctor, by 8.40 pm., the victim became unconscious and he died at 9.00 a.m., Therefore, in Ex.P.17, dying declaration recorded by the Judicial Magistrate, she has made an endorsement that "since the patient become unconscious, dying declaration could not be taken". Therefore, it is clear that even though the Judicial Magistrate was present in the Hospital soon before the death of the deceased to record his dying declaration, since the deceased became unconscious and was not in a position to give a dying declaration, the complaint recorded by the Police Officer, soon before the arrival of the Judicial Magistrate is very much admissible in evidence and the same can be treated as the dying declaration. 15. As regards the contention that the dying declaration recorded by the Police Officer is in a detailed and coherent manner and therefore it is highly doubtful, particularly, when the victim was reeling under pain and sufferings due to several injuries, it is to be noticed that P.W.17, the Doctor who stood throughout the time when the complaint was recorded, has deposed and made endorsement to the effect that the victim was in a conscious state of mind to give such statement, which cannot be doubted or brushed aside. Therefore the main test of reliability of a dying declaration viz., the mental and physical fitness and capability to make the statement at that point of time is fulfilled. 16. As already stated, though conviction can be based on the dying declaration alone, we have sufficient circumstantial evidence https://hcservices.ecourts.gov.in/hcservices/ in the case on hand which unerringly point out the guilt of the accused. 17. In Padala Veera Reddy v. State of Andhra Pradesh (1989 Supp (2) SCC 706), the Apex Court has laid down the following tests for consideration in a case of circumstantial evidence: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 18. Thus, it is well settled by the decisions of the Supreme Court that the circumstances from which the conclusion of guilt has to be drawn should be fully proved and circumstances must be conclusive in nature to connect the accused with the crime. 19. In the light of the above well settled principle of law regarding the circumstantial evidence, let us now consider the circumstances put forward by the prosecution against the accused. 20. In the case on hand, the prosecution placed reliance on the following circumstances: (a) The accused/wife suspected that there was illicit intimacy between the deceased/husband and one Rajarajeswari, (P.W.6) co-worker in the previous Rice Mill; (b) there were frequent quarrels between accused and the deceased as deposed by P.Ws.5 and 7; (c) the hue and cry heard by P.Ws.1 to 4, of which, P.Ws 3 and 4 are daughter and son of the accused and deceased who were also sleeping along with them on the date of occurrence and subsequently saw the victim with multiple bleeding injuries and also saw the accused/wife sitting by his side weeping; (d) the victim himself told before the Panchayatdars https://hcservices.ecourts.gov.in/hcservices/ that it is only his wife who had caused the injuries, as deposed by P.W.5 and P.W.14, independent witnesses; and before P.W.16, the Doctor who admitted in the Emergency Ward; (e) the complaint, Ex.P.22, recorded by P.W.18, S.I.of Police, from the victim himself, which is later treated as dying declaration, which statement is attested and endorsed by the Doctor authenticating that it has been obtained when the victim was in a conscious and sound state of mind; (f) the admissible portion of extra judicial confession given by the accused himself to the Investigating Officer and based on which subsequent recovery of bloodstained M.O.1, Koduval as well as bloodstained dress materials which all contain the same group of human blood. 21. It is true that four eye witnesses namely, P.Ws.1 to 4 have turned hostile. Even, if we discard the evidence of P.Ws.1 to 4, we can still rely on their chief examination to some certain extent, namely, they heard the noise from the house of the accused soon after the occurrence and they also saw the presence of the accused/wife sitting and weeping by the side of the injured husband. The suspicion by the accused/wife, as to the illicit relationship between the deceased and one Rajarajeswari, is spoken to by the deceased himself before P.Ws.5,14 who are independent witnesses and P.W.16 Doctor who admitted and gave treatment and P.W.18 the S.I.of Police, who recorded the complaint. In Ex.P.22, complaint/dying declaration itself, it is stated by the victim/deceased that on the date of occurrence, when there was a wordy quarrel between them as to the illicit intimacy of the deceased with the said Rajarajeswari, the deceased uttered that "he would continue such relationship" (mg;goj;jhd;o itj;jpUg;ngd;) and on hearing the same, the accused saying that "you die at last" (,j;njhL eP xHpe;J ngh) indiscriminately cut with the Koduval on various parts of his body. The medical evidence also discloses that there were 8 incised injuries. Therefore, it is well established that there is a strong motive and there is intention on the part of the accused to commit the crime.