IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.07.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.885 of 2007 Seenu @ Seenivasan .. Appellant/Accused Vs. State by : Inspector of Police, Maangadu Police Station, (Cr.No.1742/2005) Chennai. .. Respondent/Complainant * * * Prayer : Criminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure against the Judgment of conviction passed by the learned Additional Sessions Judge (Fast Track Court No.III), Poonamallee, Chennai, in S.C.No.283 of 2006 dated 29.12.2006. * * * For Appellant : Mr.E.J.Ayyappan For Respondent : Mr.N.R.Elango, Additional Public Prosecutor J U D G M E N T (Judgment of the court was delivered by K.N.BASHA, J.) The challenge in this appeal is to the judgment dated 29.12.2006 passed by the learned Additional Sessions Judge (Fast Track Court No.III), Poonamallee, Chennai, made in S.C.No.283 of 2006 convicting the sole accused/appellant under Section 302 IPC and sentencing him to undergo life imprisonment and also imposing a fine of Rs.10,000/- carrying with the default sentence of three years rigorous imprisonment. 2.1. This is a case of bride-burning. The accused is the husband of the deceased. P.W.1 is the landlord of the accused. P.W.2 is the wife of P.W.1. P.W.5 is a co-tenant. P.W.6 is the father of the deceased. The accused was residing as a tenant in the house of P.W.1. https://hcservices.ecourts.gov.in/hcservices/ 2.2. On the fateful day of occurrence, i.e., on 01.09.2005 at about 8.00 p.m., the deceased coming running with flames and was shouting to save her. P.W.5, a co-tenant, also stated that on 01.09.2005 at 8.30 p.m., she heard the hue and cry and found P.Ws.1 and 2 were in the house and the deceased came out with flames stating that her husband set fire on her. P.W.1 made arrangement to send the deceased to the hospital. The accused accompanied the deceased in the auto to the hospital. 2.3. The Doctor, P.W.3, attached to Kilpauk Medical College Hospital, Chennai, examined the deceased on 01.09.2005 at 11.00 p.m. brought by her husband, the accused. The deceased was found conscious and stated to the Doctor that her husband poured kerosene and set fire on her. The Doctor, P.W.3 found burn injuries throughout her body. He gave the first aid treatment. Ex.P.2 is the Accident Register. 2.4. P.W.9, Inspector of Police of Mangadu Police Station, received the report, Ex.P.1 from P.W.1 on 01/02.09.2005 at 1.00 a.m. and registered the case in Crime No.1742 of 2005 for the offence under Section 307 IPC. Ex.P.14 is the Express First Information Report. He went to Kilpauk Medical College Hospital and received the Accident Register at 2.15 a.m. and found the deceased with burn injuries and she was unconscious. Thereafter, he went to the scene of occurrence and prepared the Observation Mahazar, Ex.P.6 and Rough Sketch, Ex.P.15 in the presence of witnesses. He recovered M.O.1, kerosene pump-stove, M.O.2, three burnt cloth pieces from the scene of occurrence under Ex.P.7. Thereafter, he made arrangement to record the Dying Declaration through XIV Metropolitan Magistrate. While the XIV Metropolitan Magistrate reached the hospital, the deceased was found under unconscious condition and as such the XIV Metropolitan Magistrate was not able to record any Dying Declaration. 2.5. Thereafter, P.W.9 searched for the accused at 10.30 a.m. on 02.09.2005. He received the message from Kilpauk Medical College Hospital that the deceased died at 9.15 a.m. on 02.09.2005. He altered the offence to one under Section 302 IPC. Ex.P.16 is the altered First Information Report. The death intimation is Ex.P.17. He went to the Kilpauk Medical College Hospital and held inquest on the dead body of the deceased from 12.00 noon to 2.00 p.m. Ex.P.18 is the inquest report. He arrested the accused on 03.09.2005 at 11.00 a.m. in the presence of witnesses at Mugalivakkam junction and remanded him to judicial custody through the Court. He examined some more witnesses and recorded their statements. He sent the body for post-mortem. 2.6. The Doctor, P.W.4, conducted post-mortem on the dead body of the deceased on 03.09.2005 at 12.15 p.m. and found the following injuries : https://hcservices.ecourts.gov.in/hcservices/ Injury : Epidermo – dermo epidermal burns with denuded. Cuticle seen over the Face, includes lips neck both sides of the chest and abdomen, front and back of both upper limbs (includes thumbs) both thigh, right lower leg and upper part of trunk (70 % burns) G.V.ink mark seen over left great toe, no other injury noted. Heart : Normal in size c/s all chambers contain clotted blood. Coronaries : Patent. Hyoid bone : intact. Stomach : 200 CC of black colour fluid present ; No specific smell. Lungs : C/s. Congested. Liver : c/s congested. Spleen: c/s congested. Kidneys : c/s congested. Intestines:Distended with gas. Bladder : Empty. Uterus : empty Pelvis : intact. Scalp : Bones : Membranes : intact. Brain : Normal. Spinal Column : intact. The Doctor sent the Viscera for chemical examination and the report, Ex.P.4 discloses that there is no detection of poison from the samples. The Doctor, P.W.4, gave Ex.P.5 is the Post-mortem Certificate, in which, he opined that the deceased would appear to have died of hypovolemic shock due to burns. 2.7. P.W.9 sent the material objects through the Court and received the chemical examination report, Ex.P.19. After receipt of post-mortem certificate, Ex.P.5, chemical examination report, Ex.P.19 and after completion of investigation, P.W.9 filed the charge sheet on 30.09.2005 against the accused for the offence under Section 302 IPC. 3. The prosecution in order to bring home the charges levelled against the accused examined P.Ws.1 to 9, marked Exs.P.1 to P.19 and M.Os.1 to 3. 4. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating circumstances appearing against him through the evidence adduced by the prosecution, he has come forward with the version of total denial and stated that he has been falsely implicated in this case. 5. Mr.E.J.Ayyappan, learned counsel appearing for the appellant contended that the prosecution has failed to prove its case by adducing clear and cogent evidence. It is submitted that there is no eye-witness to the occurrence and the prosecution case rests on the circumstantial evidence. The learned counsel would submit that there is no motive for the accused to commit the offence and the prosecution has failed to put forward any motive against the accused. It is contended that the accused was present throughout and he only took the deceased to the hospital and the conduct of the accused shows his innocence. The learned counsel https://hcservices.ecourts.gov.in/hcservices/ would contend that the deceased could not have given any oral dying declaration to the Doctor as she was found unconscious during the visit of the investigating officer, P.W.9, at the hospital at 2.15 a.m. on 02.09.2005. The learned counsel would further submit that the deceased could not have given any oral dying declaration to P.W.5, a co-tenant, as P.Ws.1 and 2 have not stated anything about oral dying declaration made by the deceased to P.W.5. The learned counsel would also contend that in the absence of clear and clinching circumstances, the accused cannot be held liable for causing the death of the deceased. 6. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor, contended that the prosecution put forward clear and consistent circumstances implicating the accused in this case. It is submitted that P.Ws.1 and 2 have categorically spoken about the deceased coming running from her house with flames and shouting for help and P.W.2 further stated that at that time the accused was present and he has taken the deceased to the hospital and as such it is for the accused to give probable explanation for the deceased sustaining injuries as no one else was residing in the house of the accused except the deceased. It is submitted that the evidence of P.W.5, a co-tenant, is also very clear to the effect that the deceased came running with flames stating that the accused set fire on her. The learned Additional Public Prosecutor would further contend that the Doctor, P.W.3, who has first examined the deceased, has also stated that at 11.00 p.m., the deceased was found to be conscious and she stated that her husband, the accused, poured kerosene and set fire on her. It is submitted that the version of the prosecution is further corroborated by the medical evidence through the Doctor, P.W.4, who has conducted post-mortem and stated that the deceased would appear to have died of hypovolemic shock due to burns. 7. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scrutinized the materials available on record and perused the impugned judgment of conviction. 8. The entire case rests on the circumstantial evidence. The prosecution placed reliance on the following circumstances : (1)The last seen theory as spoken by P.Ws.1 and 2, the landlord and his wife ; (2)The dying declaration said to have been made by the deceased to P.W.5, a co-tenant of the accused ; (3)The dying declaration made by the deceased to the Doctor, P.W.3; (4)The occurrence took place inside the house of the accused and there is no explanation from the accused for the burn injuries sustained by the deceased, his wife ; https://hcservices.ecourts.gov.in/hcservices/ 9. The Hon'ble Apex Court in Balwinder Singh Vs. State of Punjab (AIR 1996 SC 607) has held as follows : "... In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstance must be conclusive in nature to connect the accused with the crime. ..." 10. Let us now consider the circumstances put forward by the prosecution in the light of the above well-settled principle of law laid down by the Hon'ble Apex Court. 11. Before proceeding to consider the circumstances put forward by the prosecution, let us now consider the contention of the learned counsel to the effect that there is no motive for the accused to commit the murder of his wife, the deceased. As a matter of fact, the prosecution was not able to produce any material in respect of motive of the accused to commit the offence. The Hon'ble Apex Court has held in Mulakh Raj etc. V. Satish Kumar and others reported in AIR 1992 SC 1175 that, "The case is based on circumstantial evidence and motive being absent, the prosecution failed to establish this important link in the chain of circumstances to connect the accused. We find no force in the contention. Undoubtedly in case of circumstantial evidences motive bears important significance. Motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The failure to prove motive is not fatal as a matter of law. Proof of motive is never an indispensable for conviction. When facts are clear it is immaterial that no motive has been proved. Therefore, absence of proof of motive does not break the link in the chain of circumstances connecting the accused with the crime, nor militates against the prosecution case." 12. In yet another decision in Ganesh Lal V. State of Maharashtra reported in 1992 Cri.L.J. 1545 the Hon'ble Apex Court by placing reliance on the earlier decision in Atley V. State of U.P. (AIR 1955 SC 807) has held that, "... where there is clear evidence that the person has committed the offence, it is immaterial where no motive for commission of the crime has been shown. Therefore, even in the case of circumstantial evidence, https://hcservices.ecourts.gov.in/hcservices/ absence of motive which may be one of the strongest links to connect the chain would not necessarily become fatal provided the other circumstances would complete the chain and connect the accused with the commission of the offence, leaving no room for reasonable doubt, even from the proved circumstances." 13. Therefore, it is well-settled that if there are other overwhelming materials available on record through the circumstances put forward by the prosecution unerringly pointing to the guilt of the accused, the absence of motive is immaterial. Therefore, let us now analyse the circumstances put forward by the prosecution to find out whether the prosecution is able to complete the chain of circumstances without leaving any missing links pointing to the only inference of guilt of the accused. 14. The first circumstance put forward by the prosecution is the last seen theory as spoken by P.Ws.1 and 2. It is seen that P.W.1 is the landlord and P.W.2 is the wife of P.W.1. The undisputed fact remains that the accused was residing along with his wife in the house of P.W.1. The categorical version of P.Ws.1 and 2 discloses that on the fateful day of occurrence, i.e., on 01.09.2005 at 8.00 p.m., the deceased came running out of house with flames and was crying for help. It is categorically stated by P.W.2 that at that time, the accused was present. P.W.1 further stated that he made arrangements to send the deceased to the hospital and according to P.W.2, the accused had taken the deceased in an auto to the hospital. Therefore, it is crystal clear that at the time of the deceased crying for help with flames, the accused was present and the accused has not given any explanation for such burn injuries sustained by the deceased either to P.W.1 or to P.W.2. This clinching circumstance is pointing to the guilt of the accused. 15. The next vital circumstance relied by the prosecution is the dying declaration said to have been made by the deceased to P.W.5, a co-tenant. P.W.5 categorically stated that on the date of occurrence, i.e., on 01.09.2005 at 8.30 p.m., while she was taking food in her house, she heard the crying of the deceased to save her. At that time, she has seen the deceased running out of the house with flames stating that her husband set fire on her. P.W.5 has also stated about the presence of the accused and the presence of P.Ws.1 and 2. It is pertinent to be noted that during the course of cross-examination, the specific version of P.W.5 to the effect that the deceased stated that the accused set fire on her was not disputed by putting any suggestion and the defence has put a bald suggestion to the effect of P.W.5 has not seen the occurrence and she is giving false evidence. Therefore, this circumstance is also pointing to the guilt of the accused. https://hcservices.ecourts.gov.in/hcservices/ 16. The next vital circumstance relied on by the prosecution is the dying declaration said to have been made by the deceased to the Doctor, P.W.3. The defence has not disputed even this circumstance during the course of cross-examination of the Doctor, P.W.3. It is pertinent to be noted that the deceased made the dying declaration to P.W.5, a co-tenant as well as to the doctor, P.W.3. Both of them are independent witnesses and there is absolutely no reason for them to implicate the accused falsely. Therefore, we have no hesitation to hold that the dying declaration made to the Doctor, P.W.3 as well as to the P.W.5, a co-tenant, is clear and clinching circumstance pointing to the guilt of the accused. 17. As already pointed, yet another important and vital circumstance against the accused is that the occurrence admittedly took place inside the house of the accused and only the accused was residing along with the deceased and no one was found inside the house of the accused. Therefore, it is for the accused to give probable and reasonable explanation for the deceased sustaining burn injuries. The undisputed fact remains that the accused has not offered any reasonable or probable explanation. 18. The Hon'ble Apex Court in a similar case of bride-burning in Gurpreet Singh V. State of Haryana reported in AIR 2002 SC 3217 has held that in the event of non-explanation of the burn injuries sustained by the deceased, the chain of events can be said to have dispelled every doubt regarding the involvement of the accused in the brutal murder of his wife. Therefore, we have no hesitation to hold that this circumstance is also pointing to the guilt of the accused. 19. For the aforesaid reasons, we are of the considered view that the chain of circumstances as recited above coupled with the law laid down by the Hon’ble Apex Court unerringly lead to one conclusion and that is the guilt of the accused and as such we are constrained to dismiss the appeal as devoid of merits and accordingly, the appeal is dismissed. gg Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional Sessions Judge, Fast Track Court No.III, Chennai. 2. - do – thro" The Principal Sessions Judge, Chennai. 3. The District Collector, Chennai District. 4. The Director General of Police, Chennai. 5. The Inspector of Police, Maangadu Police Station, Chennai. 6. The Public Prosecutor, High Court, Madras. rb (co) dv/8.8. Judgment in Crl.A.No.885 of 2007 https://hcservices.ecourts.gov.in/hcservices/