IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21-10-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.335 of 2009 Ravichandran .. Appellant/Sole Accused vs State: represented by The Inspector of Police D-1 Poonamallee Police Station Crime No.1074 of 2001 Kancheepuram District .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District & Sessions Judge (Fast Track Court No.IV), Poonamallee, in S.C.No.21 of 2006 dated 30.1.2008. For Appellant : Mr.S.R.John Sathyan For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.IV, Poonamallee, made in S.C.No.21 of 2006 whereby the sole accused/appellant stood charged, tried, found guilty as per the charge of murder and awarded life imprisonment along with a fine of Rs.500/-. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the father; P.W.2 is the mother and P.W.3 is the cousin of the deceased Dhanalakshmi. She was given in marriage to the accused three years prior to the occurrence that was on 7.6.1998. They were living together. For two years they were living happily, and thereafter, there was disturbance in matrimony then and there. He was quarrelling with her since he was jobless. At times, she was taken to the parental home, and she used to be with her parents. During the relevant time, both of them were https://hcservices.ecourts.gov.in/hcservices/ residing in a house which belonged to P.W.6. P.Ws.5 and 7 were neighbours. (b) On the date of occurrence i.e., 14.10.2001, as usual he came in a drunken mood and picked up a quarrel with his wife, and in that course, he took all the groceries and threw on her. Immediately, the deceased informed to P.W.1 father, about the same at about 1.00 P.M., who replied that he would come and take her at about 3.00 P.M. In the meantime, at about 2.30 P.M., he poured kerosene available and also set her ablaze. Immediately she shouted, and fumes were coming out. On seeing the fumes coming out, P.Ws.5 and 7 rushed to her house and found her burning. (c) P.W.7 after coming to know about the fact, advised him to take her to the hospital. Accordingly, he took her to the Kilpauk Medical College and Hospital. P.W.14 was the Doctor, who was on duty. At about 5.30 P.M., she was admitted, and the Doctor also noted down the injuries. The accident register copy is Ex.P11. An information was given to the respondent police, and on receipt of the same, P.W.17, the Head Constable, rushed to the hospital, took her statement, recorded the same, came back to the police station and registered a case in Crime No.1074 of 2001 under Sec.307 of IPC. The printed FIR, Ex.P16, was despatched to the Court. (d) P.W.19, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P1, and also a rough sketch, Ex.P18. He also recovered M.Os.1 to 8 from the place of occurrence under a cover of mahazar. Then the place of occurrence was photographed through a photographer. M.Os.9 and 10 series are the photos and negatives respectively. Thereafter, he went to the hospital and recorded the statement of the deceased at about 8.30 A.M. on 15.10.2001. Thereafter, an intimation was given to the Metropolitan Magistrate. (e) P.W.12, the XV Metropolitan Magistrate, arrived at the hospital at about 2.45 P.M., and after being certified that she was in a fit mental condition to give statement, her dying declaration was recorded. The proceedings are marked as Ex.P7. Despite the treatment, she died on 18.10.2001 at 10.15 A.M. Then the case was converted to Sec.302 of IPC, and the alteration report, Ex.P21, was sent to the Court. The inquest was made by the R.D.O. in the presence of witnesses and panchayatdars, and he prepared an inquest report, Ex.P12. Then a requisition was given to the hospital authorities for the purpose of postmortem. (f) P.W.18, the Assistant Professor of Forensic Medicine, Government Kilpauk Medical College, Chennai, on receipt of the said requisition, conducted autopsy on the dead body of Dhanalakshmi and has issued a postmortem certificate, Ex.P17, with his opinion that the deceased would appear to have died due to complications of burns. (g) Pending investigation, the accused was arrested and sent https://hcservices.ecourts.gov.in/hcservices/ for judicial remand. The investigation was completed, and the final report was filed by the Investigator. 3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 19 witnesses and also relied on 21 exhibits and 10 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. 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 the accused guilty under Sec.302 of IPC 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 would submit that in the instant case, the prosecution had no direct evidence to offer; that though the prosecution has marched P.Ws.5 and 7 as neighbours and P.W.6 as the owner of the house in which both the accused and the deceased were living on the day, they have not spoken anything about the occurrence; that according to the prosecution, the occurrence has taken place at about 2.30 P.M. following a quarrel between the spouses, but she was taken to the hospital at about 5.30 P.M. by the husband, and for a period of 3 ½ hours, she was actually in the house with burn injuries; that if P.Ws.5 and 7 have really intervened and they also came to know about the same and met her during the relevant time, she would have certainly informed them that it was her husband who poured kerosene and set her ablaze; but they have not whispered anything; that this would clearly indicate that such an incident has not taken place at all; that the earliest document which has come into existence, is Ex.P11, the accident register copy, which would clearly indicate that it was due to accidental fire, since she fell on the fire; that the doctor P.W.14 when examined the deceased, has clearly spoken about the fact that it was she who gave such a statement, and under the circumstances, all other documents which have come into existence later are only developments of the prosecution case in order to strengthen the case, but ended in vain. 5.Added further the learned Counsel that the prosecution much relied upon two dying declarations one before P.W.19, the Inspector of Police, which was recorded under Sec.161 of Cr.P.C. at about 8.30 A.M. on 15.10.2001 and the other before P.W.12, the Metropolitan Magistrate, between 2.45 and 2.55 P.M. on 15.10.2001 which is marked as Ex.P7; that from both these documents, it could be seen that the act of pouring of kerosene and lighting of fire was done by the accused; but these are all subsequent developments and it was tutored after the meeting by P.Ws.1 and 2, the parents of the deceased; that the earliest document which has come into existence namely Ex.P11, if looked into, all other documents should have been rejected by the trial Court; that the prosecution has miserably failed to look into the conduct of the accused that it was he who was in a drunken mood, and even after coming to know about the same, https://hcservices.ecourts.gov.in/hcservices/ it was he who taken her to the hospital; that all would clearly indicate that had it been true that he is involved in such a crime, he would not have taken her to the hospital; that apart from that, it was only 20% of the burn injuries; that further the prosecution at one juncture came with the third version that according to P.W.1, he met her and questioned why she did such an act; that this would clearly indicate that it was a self-immolation; that all would go to show that the prosecution had three inconsistent stories before the Court; that it would be sufficient to probablise that the prosecution has come with the false case; that he was thoroughly innocent, and under the circumstances, he should have been acquitted. 6.In the second line of argument, the learned Counsel would submit that even assuming that the prosecution is stated to have proved the fact that it was the accused who poured kerosene and set her fire, the act of the accused cannot be taken as one of murder; that it was not at all intentional; that he was actually in a drunken mood; that even as per the dying declaration, it was he who actually threw all the groceries and thereafter he poured kerosene and set her ablaze; and that if to be so, he did not know what was happening at that time. The learned Counsel would further add that there was a quarrel between them; that she informed the same to her father; that her father in turn replied that he would come and take her; that all would go to show that there was no intention at all; that it was in a heat of passion; that under the circumstances, it cannot be termed as murder; and that this legal position has got to be considered by this Court which the trial Court has failed to consider. 7.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 8.It is not in controversy that one Dhanalakshmi, the wife of the appellant/accused, following the burn injuries sustained by her at about 2.30 P.M. On 14.10.2001, at the house where they were residing, was taken to Kilpauk Medical College and Hospital, and was admitted by P.W.14, the Doctor. Despite treatment, she died on 18.10.2001. The case was originally registered under Sec.307 of IPC by P.W.17, the Head Constable, and was subsequently converted to Sec.302 of IPC on her death. The postmortem certificate has also been issued to the effect that she died out of the burn injuries. The fact that she died as direct consequence of the burn injuries was never disputed by the appellant before the trial Court, and thus, the prosecution was successful enough in bringing to the notice of the Court that the death was due to the burn injuries sustained by her. 9.True it is, the prosecution had no direct evidence to indicate that it was he who poured kerosene and set her ablaze. But, after careful scrutiny of the entire materials, this Court is thoroughly satisfied that there are sufficient materials available for the prosecution to indicate that none else except the accused, https://hcservices.ecourts.gov.in/hcservices/ has done the act. As per the prosecution case, there are two dying declarations recorded one by P.W.19, the Inspector of Police, at about 8.30 A.M. on 15.10.2001, and the other by P.W.12, the Metropolitan Magistrate, from 2.45 to 2.55 P.M. on that day. It is not in controversy that during the relevant time, they were living together, and on the day i.e., 14.10.2001, at the time when the occurrence has taken place, the appellant/accused was very well available in the house. According to the prosecution, it was he who poured kerosene and set her ablaze. But, it was flatly denied by the accused. Much reliance was placed by the appellant's Counsel that the earliest document which has come into existence is Ex.P11, the accident register copy, wherein it is written that it was actually due to the burn injuries sustained by her due to the accidental fall on the fire. The learned Counsel also took the evidence of the Doctor P.W.14 to his support. But it would be quite clear from the reading of the evidence of P.W.14 that it was actually the statement given by the husband when he admitted her in the hospital. Hence the contents what are all found in Ex.P11 cannot be given any evidentiary value at all, and they are liable to be rejected. 10.In the case on hand, the other documents were available in favour of the prosecution. The first dying declaration was recorded by P.W.19, at about 8.30 A.M. on 15.10.2001 wherein she has narrated the entire incident indicating that it was he who poured kerosene and also set her ablaze. Equally the other document available for the prosecution was Ex.P7, the dying declaration, recorded by P.W.12, the Metropolitan Magistrate, who on information arrived at the hospital at 2.45 P.M. He has also given evidence to the effect that after getting the certification from the Doctor that she was mentally fit to give such a statement, he recorded the same. The Doctor has also countersigned the same. If Ex.P7 is looked into, it would be quite clear that she has narrated the entire incident, and thus, in the considered opinion of the Court, these two documents are pointing to the guilt of the accused. 11.The contention put forth by the learned Counsel that he was in a drunken mood and even then, he has taken her to the hospital at about 5.30 P.M., which would be indicative of the fact that he could not have committed the offence has got to be rejected. At this juncture, it is pertinent to point out that it was P.W.7, who advised him to take her to the hospital. Had it not been done, he would not have taken her to the hospital. Added further, P.Ws.5 and 7 are the neighbours to whom she should have informed. Merely because she has not informed to P.Ws.5 and 7, it cannot be stated that it was not due the act of the accused while the appellant is unable to bring to the notice of the Court any reason why his own wife should come forward to give a false evidence against her husband. Even prior to the occurrence, she phoned over to her father P.W.1 that the accused picked up quarrel and he must take her to the village. P.W.1 replied that he would come and take her at 3.00 P.M. But in the meanwhile, the occurrence has taken place at 2.30 P.M. Under the circumstances, the contentions put forth by the appellant's counsel do not carry any merit whatsoever. Thus, the https://hcservices.ecourts.gov.in/hcservices/ prosecution was able to prove that death has occurred due to the burn injuries sustained by her, and it was caused by the appellant/accused by pouring kerosene and setting her ablaze. Therefore, the prosecution has factually proved the case. 12.As regards the second line of argument, this Court is able to see sufficient force in the contention put forth. The occurrence has taken place at 2.30 P.M. Even as per the prosecution case, the accused came in a drunken mood and picked up a quarrel, and when the quarrel was going on, he actually threw all the groceries on her, poured kerosene and set her fire. All would indicate that he has no intention to cause death. But it was his act by which he has brought forth her death. Even as per the prosecution case, there was a quarrel going on, and at that juncture, he has acted so due to sudden quarrel which has resulted in her death. But, at the same time, it would attract the penal provision of Sec.304 (Part I) of IPC and awarding 10 years Rigorous Imprisonment, in the considered opinion of this Court, would meet the ends of justice. 13.Accordingly, the conviction and sentence of life imprisonment imposed by the trial Court on the accused under Sec.302 of IPC are set aside, and instead, the appellant/accused is convicted under Sec.304 (Part I) of IPC and is directed to suffer 10 years Rigorous Imprisonment. The sentence already undergone by him shall be given set off. The fine amount and default sentence imposed by the trial Court will hold good. 14.In the result, with the above modification in conviction and sentence, this criminal appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Additional District & Sessions Judge (Fast Track Court No.IV), Poonamallee 2.The Inspector of Police D-1 Poonamallee Police Station Crime No.1074 of 2001 Kancheepuram District https://hcservices.ecourts.gov.in/hcservices/ 3.The Public Prosecutor High Court, Madras. 4.The District Collector, Thiruvallur District. 5.The Director of Police, Mylapore, Chennai-4. 6.The Superintendent, Central Prison, Puzhal, Chennai. 7.The Judicial Magistrate II, Poonamallee 8.The Chief Judicial Magistrate, Poonamallee. LA(CO) km/9.11. CRL.A.No.335 of 2009 https://hcservices.ecourts.gov.in/hcservices/