IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21-12-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALILNGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.722 of 2009 Balasubramanian .. Appellant/Accused vs State rep. By Inspector of Police Kottucherry Police Station Karaikkal Puducherry District Crime No.71/2007 .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment and conviction of the Additional Sessions Judge, Puducherry at Karaikal, made in S.C.No.18 of 2008 dated 24.3.2009 and prays that this Hon'ble court may be pleased to set aside the Judgement and conviction in S.C.No.18 of 2008, dated 24.3.2009 and acauit the appellant. For Appellant : Mr.P.Venkatasubramanian For Respondent : Mr.Thangavel Government Advocate (Pondy) JUDGMENT (Judgment of the Court was delivered by M.CHOCKALILNGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Pondicherry at Karaikal, made in S.C.No.18 of 2008 whereby the sole accused/appellant stood charged under Sec.302 of IPC, tried, found guilty of murder and awarded life imprisonment. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.5 is the brother of the deceased Indira who was given in marriage to the appellant. P.W.1 is a neighbour. Both the accused and the deceased were living. Indira's mother died in Tsunami, and compensation was also given to her father. The accused was insisting that she should get the share in the compensation amount, and he used to often come in a drunken mood and quarrel with her all along the days. https://hcservices.ecourts.gov.in/hcservices/ (b) On 1.6.2007 at about 12.30 P.M., the accused was quarrelling with her as to the compensation amount. Since she did not pay heed to his words, he took a kerosene can kept in the house, poured on her, set fire and ran away. Immediately, the deceased came out with burning injuries. On hearing the distressing cry, the neighbours gathered and they immediately took her to the General Hospital, Karaikal. P.W.7, who was the Doctor on duty, gave her initial treatment. Immediately, the Doctor gave an intimation to the respondent police. (c) P.W.12, who was the Sub Inspector of Police of the respondent police station on duty, on receipt of the said intimation, went to the General Hospital, Karaikal, and recorded the statement of Indira marked as Ex.P20. On the strength of Ex.P20, he registered a case in Crime No.71 of 2007 under Sec.307 of IPC. The printed FIR, Ex.P21, was sent to the Court. He took the Photographer, and photographs were taken as to the place of occurrence. He prepared an observation mahazar, Ex.P3, and also a rough sketch. He also recovered the material objects from the place of occurrence under a cover of mahazar. (d) Pending investigation, a communication was addressed to the Judicial Magistrate No.I, Karaikal. Accordingly, P.W.14, the Judicial Magistrate, went to the General Hospital, and after being certified by Dr.Thilagendran that she was in a fit state of mind to give dying declaration, he recorded the same at about 6.35 P.M. The said dying declaration is marked as Ex.P26. The said certificate given by the Doctor is Ex.P15. (e) Pending the investigation, the accused was arrested on 2.6.2007 at about 10.15 A.M. He also came forward to give a confessional statement voluntarily. The same was recorded in the presence of witnesses. The admissible part is marked as Ex.P5. Pursuant to the same, he took the police party and also the Investigator and produced a kerosene can and also a match stick, marked as M.Os.3 and 4 respectively, which were recovered under a cover of mahazar. (f) In the meanwhile, Indira who was under treatment, died on 4.6.2007 at 11.30 A.M. Then the case was converted to Sec.302 of IPC by P.W.13, the Sub Inspector of Police. The alteration report, Ex.P25, was sent to the Court. The further investigation was taken up by P.W.15, the Inspector of Police of the Circle, on 4.6.2007. (g) P.W.15 made an inspection of the place of occurrence and went to the General Hospital, Karaikal, where at the mortuary, he conducted inquest on the dead body of Indira in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P7. Then a requisition was forwarded to the hospital authorities for the purpose of autopsy. (h) Pursuant to the requisition made, P.W.10, the Senior Medical Officer, attached to the General Hospital, Karaikal, has conducted autopsy on the dead body of Indira and has given a postmortem certificate, Ex.P19, with his opinion that death is due to septicemic shock as a result of burns. https://hcservices.ecourts.gov.in/hcservices/ (i) On completion of investigation, the Investigating Officer filed the final report. 3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 15 witnesses and also relied on 28 exhibits and 6 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined, but one document was marked as Ex.D1. On completion of evidence on both sides, the trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty as per the charge of murder and awarded life imprisonment which is the subject matter of challenge before this Court. 4.Advancing arguments on behalf of the appellant, the learned Counsel Mr.P.Venkatasubramanian would submit that in the instant case, the occurrence, according to the prosecution, has taken place at about 12.30 P.M. on 1.6.2007; that P.W.1 would claim that he was a neighbour, and he came to know about the incident in which Indira sustained burn injuries at the hands of the appellant, and immediately the neighbours took her to the General Hospital, where she was given treatment by P.W.7, the Doctor; and that P.W.7 the Doctor would claim that she was admitted in the hospital with burn injuries, and he gave her treatment, and he also gave an intimation to the respondent police, and P.W.12, the Sub Inspector of Police, came over there and took her statement. Now at this juncture, the learned Counsel would submit that if P.W.7 has actually given treatment to her, the earliest version given by her, should have been recorded by the Doctor, P.W.7; but, the Investigator has not produced either the wound certificate or the accident register copy from the hospital; that this would indicate that the earliest statement given by her was against the prosecution case; that had it been brought to the notice of the Court, it would have definitely gone against the prosecution, and hence they have not produced; that for the non production, the Court has to infer and presume the same against the prosecution case, and thus it is fatal to the prosecution case. 5.Added further the learned Counsel that P.W.5 is the brother of Indira; that according to him, Indira informed him that it was her husband, the appellant herein, who poured kerosene on her and set her ablaze; that if to be so, she should have immediately informed the same to the neighbours and relatives, but not done so, and hence it would be quite clear that it was an added evidence. 6.The learned Counsel would further submit that according to the prosecution, a dying declaration was recorded by the Judicial Magistrate, P.W.14, at about 6.35 P.M. on 1.6.2007; that if to be so, there was a long interval between the time of her admission in the hospital and recording of the dying declaration; that the intervening circumstance is the presence of P.W.5; that it would be quite clear https://hcservices.ecourts.gov.in/hcservices/ that she was tutored; that what is found in Ex.P26, dying declaration, could not but be a tutored version; and that under the circumstances, the dying declaration cannot be given any effect at all. 7.Added further the learned Counsel that the Investigator would claim that the accused was arrested on the next day i.e., 2.6.2007, when he came forward to give a confessional statement, and the same was recorded pursuant to which he produced a kerosene can and also a match box, which were recovered; but, on the contrary, P.W.1 would claim that the accused was very well available in the police station on the next morning; that it would be quite evident that such a confessional statement could not have been given or at the instance of the accused, those material objects could not have been seized at all; and that this would be indicative of the fact that the alleged arrest, confession and recovery of the material objects cannot but be false. 8.The learned Counsel would further add that in the instant case, the prosecution though appear to have placed evidence before the Court, actually they did not serve the purpose of bringing home the guilt of the accused, and under the circumstances, the trial Court has not considered or appreciated the defence plea put forth, but has entered a judgment of conviction, which has got to be set aside by this Court and the appellant be acquitted of the charge. 9.This Court heard the learned Government Advocate (Criminal Side) on all the above contentions and paid its anxious consideration on the submissions made. 10.It is not in controversy that the sister of P.W.5, one Indira, following an incident that had taken place at about 12.30 P.M. on 1.6.2007, was taken to the General Hospital, Karaikal, where she was given treatment by P.W.7, the Doctor. Thereafter, she succumbed to the burn injuries on 4.6.2007. Originally, the case was registered under Sec.307 IPC by P.W.12, the Sub Inspector of Police. Thereafter, on her death, it was converted to Sec.302 IPC, and the investigation was taken up by P.W.15, the Inspector of Police. Following the inquest made by the Investigator, the dead body was subjected to postmortem by P.W.10, the Medical Person, who has given a categorical opinion that she died out of burn injuries sustained by her. Now the cause of death as put forth by the prosecution was never disputed by the appellant before the trial Court or before this Court, and hence it has got to be recorded so. 11.In order to substantiate that it was the accused who poured kerosene on Indira and set her ablaze, the prosecution mainly relied on the dying declaration given by her to the Judicial Magistrate, P.W.14, on 1.6.2007. The same is marked as Ex.P26. Added circumstance, according to the prosecution, was the oral dying declaration given to P.W.5, the brother of the deceased, after the occurrence. Much comment was made by the learned Counsel on the above two pieces of evidence. This Court is unable to agree with the learned Counsel. In the instant case, the occurrence has taken place at about 12.30 P.M. on 1.6.2007. P.W.1 is the neighbour. According to him, on hearing the distressing cry, he came out of the house, and https://hcservices.ecourts.gov.in/hcservices/ he came to know that she sustained burn injuries, and the neighbours who gathered there have taken her to the General Hospital. P.W.7 has given treatment which fact is spoken to by the witnesses. It is true that the wound certificate or the accident register copy has not been produced before the Court. But the non-production of the same in no way would affect the case of the prosecution. In a given case like this, it is settled proposition of law that the Court can act upon the sole piece of evidence namely the dying declaration, given by the victim if it is found to be trustworthy and acceptable. In the case on hand, the occurrence has taken place at about 12.30 P.M. on 1.6.2007, and she was taken to the General Hospital, Karaikal, immediately. It was P.W.7, the Doctor, who admitted her and gave treatment. After she was admitted, immediately an intimation was given to the respondent police by the Doctor. It was P.W.12, the Sub Inspector of Police, who went to the hospital immediately and took her statement marked as Ex.P20. It was Indira who narrated the entire incident in her statement on the strength of which a case came to be registered. Thus, it got the character of a dying declaration, and the whole narration of the entire incident is found therein. 12.Added circumstance is the dying declaration recorded by P.W.14, the Judicial Magistrate, at about 6.35 P.M. According to P.W.14, on intimation, he went to the hospital and after being certified by the Doctor that she was in a fit state of mind to give declaration, he recorded the same, which is marked as Ex.P26. The certificate is marked as Ex.P15. A perusal of the dying declaration, Ex.P26, would clearly indicate that the substances what are found in the earlier statement marked as Ex.P20, are found therein. It would clearly be indicative of the fact that it was the appellant/accused who poured kerosene on her and set her ablaze. Now, the contention put forth by the learned Counsel that it was a tutored one cannot be accepted for the simple reason that the earliest statement given by her, was to P.W.12, the Sub Inspector of Police, on the strength of which the case came to be registered immediately at about 2.10 P.M. under Sec.307 of IPC. Following the same, the dying declaration has also been given to the Judicial Magistrate at 6.35 P.M. This Court is unable to see any reason to cast any doubt on the evidence of P.W.14, the Judicial Magistrate, who recorded Ex.P26, dying declaration. Thus the above two pieces of evidence, in the considered opinion of the Court, would clinchingly be pointing to the culpability of the accused. This Court is unable to notice anything to be tutored to the victim. 13.As rightly pointed out by the learned Counsel for the appellant, the so-called confessional statement and the recovery of the material objects cannot be believed for the simple reason that P.W.1 has categorically admitted that the accused was very well available in the police station on the next morning, and hence the claim of the Investigator that he was arrested, and he came forward to give confessional statement voluntarily, and the same was recorded on the basis of which the material objects were recovered cannot be accepted. Even assuming that this part of the evidence is not acceptable, the circumstances placed before the trial Court and discussed above would suffice to record a finding that it was the appellant/accused who has actually poured kerosene and set her ablaze. This Court is unable to see any reason to bring the act of https://hcservices.ecourts.gov.in/hcservices/ the accused down of murder. Therefore, the act of the accused would fall within the four corners of definition of murder, and he was found guilty properly by the trial Court. Nothing is available for the appellant/accused either factually or legally to disturb the judgment of the trial Court. 14.In the result, this criminal appeal fails and the same is dismissed confirming the judgment of the trial Court. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Additional Sessions Judge Puducherry at Karaikal. 2.-do- Through The Principal Sessions Judge, Puducherry 3.The Judicial Magistrate No.II, Karaikal 4.-do- Through The Chief Judicial Magistrate, Puducherry 5.The District Collector, Puducherry 6.The Director General of Police, Mylapore, Chennai 7.The Superintendent of Prison, Karaikal. 8.The Inspector of Police Kottucherry Police Station Karaikkal, Puducherry District, Crime No.71/2007 9.The Public Prosecutor, High Court, Chennai. + 1 cc to The Senior Govt., Pleader-Cum-Senior Public Prosecutor (P) SR 70436 + 1 cc to Mr.P.Venkatasubramanian, SR 71615 CRL.A.No.722 of 2009 KSK (CO) RH (7.1.10) https://hcservices.ecourts.gov.in/hcservices/