IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.09.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN C.A.NO.423 OF 2010 Guru @ Gurunathan .. Appellant/Accused Vs. State rep. by Inspector of Police, Karungalpalayam Police Station, Erode District. (Crime No.197 of 2007) .. Respondent/Complainant This criminal appeal is preferred under Section 374 (2) Cr.P.C against the judgment of the learned I Additional Sessions Judge, Erode District, in S.C.No.27 of 2008, dated 06.08.2008. For Appellant : Mr.K.Ethirajalu For Respondent : Mr.V.R.Balasubramanian, APP JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) The appellant has challenged the judgment of the learned I Additional Sessions Judge, Erode District, made in S.C.No.27 of 2008, dated 06.08.2008, whereby, the sole accused/appellant was convicted for the offences under Sections 302 and 203 IPC and he was sentenced to undergo life imprisonment for the offence under Section 302 IPC and to pay a fine of Rs.2500/- and in default to undergo six months simple imprisonment and was sentenced to undergo two years rigorous imprisonment for the offence under Section 203 IPC. 2.The short facts necessary for the disposal of this appeal can be stated thus: (a)P.Ws.1 and 2 are the sisters and P.Ws. 5 and 6 are the parents of the deceased Rani. She was given in marriage to the appellant/accused six years before and they were living in a different place and thereafter, at the relevant time, they were living at Agraharam in Bhavani Main Road, within the jurisdiction of https://hcservices.ecourts.gov.in/hcservices/ the respondent-police. The accused was employed in a Bleaching Factory. Often, the accused quarrelled with the deceased demanding that he wanted to marry for the second time. Hence, she used to go to her parents house more frequently and they used to take her back to the matrimonial home and reconcile both the accused and the deceased and leave her there. (b) On the date of occurrence viz., 22.04.2007, P.Ws. 1 and 2 went to the house of the accused/appellant and deceased to invite them to a festival and as it became late in the night, they stayed back in the house of the appellant/accused. The children of the accused along with P.Ws. 1 and 2 were sleeping on the front portion of the house, while the deceased and accused were sleeping inside the house. During night, at about 11.00 p.m. they heard a loud noise from the deceased and they thought that there was a domestic quarrel as usual. Thereafter, they heard a distressing cry and therefore, they went inside the house and they found the whole body of the deceased Rani was burning in flame. P.Ws. 1 and 2 quenched the fire by pouring water. She was taken to the Erode Government Hospital, where, she was examined by P.W.3-Doctor and the Accident Register copy was marked as Ex.P.1. The intimation was given to the respondent-police. P.Ws. 5 and 6 also arrived at the hospital and she informed to all of them that it was her husband, who poured kerosene on her and set her ablaze. Thereafter, P.W.12-Sub-Inspector of Police, on receipt of intimation came to the hospital recorded, the statement of the deceased, which was marked as Ex.P.20. On the strength of the same, a case came to be registered by the respondent-police in Cr.No. 197 of 2007 under Section 307 IPC. The copy of the First Information Report -Ex.P.21, was despatched to the Court. (c) On intimation, P.W.7-Judicial Magistrate II, Erode, went to the hospital and recorded the Dying Declaration of the deceased after certifying that she was in good mental frame to give such a declaration and it was recorded on 23.04.2007 at about 12.10 p.m. and the Dying Declaration was marked as Ex.P.8. (d) P.W.16, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the place of occurrence, made an inspection in the presence of the witnesses and prepared Ex.P.11, the observation mahazar and Ex.P.23, the rough sketch. He also recovered material objects from the place of occurrence. Thereafter, he enquired the witnesses, recorded 161 statement under Criminal Procedure Code. Pending investigation, on 24.04.2007, the accused was arrested and he gave a confession, which was recorded. Pursuant to which, he produced a shirt and a while colour can, which were recovered in the presence of witnesses under a cover of mahazar. After recovery, he was sent for judicial remand. On 11.05.2007, he got an information that the victim died. Originally, the case, which was registered under Section 307 IPC was https://hcservices.ecourts.gov.in/hcservices/ altered to Section 302 IPC. The altered F.I.R is despatched to Court. The inquest on the dead body of the deceased was conducted by the Revenue Divisional Officer and prepared Ex.P.9, the inquest report. Following the same, the dead body of the deceased was sent for the purpose of autopsy along with a requisition. (e) P.W.4, the Doctor attached to the Erode Government Hospital has conducted autopsy on the dead body of the deceased and has issued Ex.P.4, the post-mortem certificate, wherein he has opined that the deceased appear to have died due to burns and septic shock. (f)On completion of the investigation, the Investigating Officer filed the final report in Cr.No. 197/2007 and the case was committed to Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has marched 17 witnesses as P.Ws 1 to 17 and also relied on 25 exhibits as Exs. P.1 to P.25 and relied on six material objects as M.Os 1 to 6. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C procedurally as to the incriminating circumstances found in the evidence of prosecution witnesses, which the accused flatly denied as false. On the side of the defence, no one was examined and no documents were marked. On completion of the evidence, the lower court heard the arguments advanced by both sides and also scrutinised the materials available and took a view that the prosecution has proved the case beyond reasonable doubt and has found the accused/appellant guilty and has awarded punishment as referred to above. Hence, this appeal at the instance of the appellant. 3. Advancing the arguments on behalf of the appellant, the learned Counsel Mr.K.Ethirajalu would vigorously and vehemently in his sincere attempt of assailing the judgment of trial Court would submit that in the instant case, the prosecution has miserably failed to prove the case but the trial Court has taken an erroneous view finding the accused guilty. Learned counsel would further submit that admittedly, P.Ws. 1 and 2 are sisters and P.Ws. 5 and 6 are parents of the deceased. Even, as per the case of the prosecution, on the date of occurrence, viz., on 22.04.2007, P.Ws. 1 and 2 along with the children of the deceased were actually sleeping in the front portion of the house, while accused/appellant and the deceased were sleeping inside the house. It is pertinent to point out that immediately after the occurrence, she was taken in an auto to the Erode Government Hospital and she was treated by P.W.3-Doctor. P.W.3 has categorically stated that she was conscious enough and also oriented when she gave the statement, which was recorded in Ex.P.1. A perusal of Ex.P.1-Accident Register Copy would clearly indicate that she sustained burn injuries when she was working in the kitchen at about 11.00 p.m. due to the burst of the stove and there is no reason why the earliest document and the contents as found in Ex.P.1 was disbelieved by the trial Court. Thereafter, the Dying Declaration was https://hcservices.ecourts.gov.in/hcservices/ recorded by Judicial Magistrate II, Erode, at about 12.10 p.m., as found in Ex.P.8 and also the prosecution relied on the statement given by the deceased and recorded by P.W.12-Sub-Inspector of Police, which was marked as Ex.P.20. The learned counsel pointing out to Ex.P1 would submit that the documents viz., Exs.P.8 and P.20 were created documents and those documents came into existence only after a tutoring process. It is evident from the testimony of the witnesses that P.W.1 and others were actually gathered in the hospital and they have been all along with the deceased and hence, she would have been tutored by them, as a result of which, she has given a false version, under such circumstances, much evidentiary value should not be given neither to the Dying Declaration given before the Judicial Magistrate marked as Ex.P.8 nor the statement given before the Police Officer marked as Ex.P.20. The learned counsel would further add that the occurrence has taken place on 22.04.2007, at 11.00 p.m. and she was taken to the hospital immediately, whereas, she died only on 11.05.2007 i.e., after a long interval of 19 days, which would clearly indicate that sufficient time interval was there to create the documents to suit the case of prosecution. Under such circumstances, the prosecution miserably failed to prove its case and therefore, the appellant is entitled for acquittal in the hands of this Court, but, the learned trial Judge has taken an erroneous view and has passed the judgment of conviction and sentence which has to be set aside. 4.Heard the learned Additional Public Prosecutor on the above contentions. This Court has paid its anxious consideration on the submissions made. 5. It is not in controversy that following the incident that had taken place on 22.04.2007 at about 11.00 p.m. the deceased Rani sustained burn injuries and she was immediately taken to the Erode Government Hospital, where she was given treatment by P.W.3-Doctor and despite the treatment, she died on 11.05.2007. Following the same, inquest on the dead body of the deceased was made by the Revenue Divisional Officer-P.W.8 and thereafter, the dead body of the deceased was subjected to post-mortem by P.W.4 -Doctor, who has given a categorical opinion that the deceased died due to burns and septic shock. It is pertinent to point out that the fact she died out of burn injuries was never disputed by the appellant before the trial court and hence, no impediment is felt by this Court in recording so. 6. In order to substantiate the charges levelled against the appellant that it was the accused, who poured kerosene on the deceased and set her ablaze, when they were inside the house at about 11.00 p.m. on 22.04.2007, the prosecution had no direct evidence to offer, but relied upon the following circumstances which in the considered opinion of the Court is suffice to point out the guilt of the accused. Firstly, the occurrence has taken place on https://hcservices.ecourts.gov.in/hcservices/ 22.04.2007 at about 11.00 p.m. and she was taken to the hospital immediately and she was given treatment by P.W.3-Doctor. P.W.1, sister of deceased had categorically stated that when she asked her sister/deceased about the incident, she informed her that it was her husband who poured kerosene on her and set fire on her. On the next day morning (23.04.2007), P.Ws. 5 and 6, parents of deceased, on intimation rushed to the Hospital and to them also, the deceased informed the very same thing. Apart from that, on intimation, the learned Judicial Magistrate II, Erode, examined as P.W.11, went to the hospital and after being satisfied as to the mental condition of the deceased has recorded the Dying Declaration of the deceased. A perusal of the Dying Declaration would clearly show that during the marital life,the accused often used to quarrel with the deceased stating that he wanted to marry for the second time. Just prior to the occurrence also, there was a quarrel between them. At that time, she replied that both her sisters were sleeping outside and therefore, it would not be proper for him to talk like that. For that, the accused told her that only if she die, he would be able to marry for the second time. So saying, the accused poured kerosene on her. First she felt that it was water and thereafter, when he lit fire only she came to know that it was kerosene. Thus, the Dying Declaration, which was recorded by Judicial Magistrate II, Erode, would clinchingly point out the guilt of the accused. 7. Learned counsel has pointed out that the statement recorded by P.W.12,Sub-Inspector of Police from the deceased, which was marked as Ex.P.20, would show that whatever she has stated before the Judicial Magistate II, Erode, in the Dying Declaration was actually repeated to the Sub-Inspector of Police as found in Ex.P.20. At this juncture, it is pertinent to point out that the prosecution has placed three kinds of declaration before us. Firstly, to P.Ws. 1, 2, 5, and 6; secondly, to the Judicial Magistrate II, Erode, marked as Ex.P.8; and thirdly, to the Sub-Inspector of Police, marked as Ex.P.20. In a given case like this, even the Dying Declaration, a single piece of evidence, inspires the confidence of Court, the Court can sustain the conviction. The Court should not look into the minor discrepancies in the dying declaration but it should only look into the substance therein. In the instant case, all the three Dying Declarations would point out that it was the accused/appellant, who poured kerosene on her and set her ablaze, leaving no doubt in the mind of the court. 8. The learned counsel for the appellant, pointing to the evidence of P.W.3-Doctor and the contents of Ex.P.1-Accident Register Copy would submit that there is no reason to disbelieve the earliest document. It should not be forgotten that when she was taken to the Erode Government Hospital, major part of the body of deceased was burnt, at that time, the Court must look into the mental frame of the deceased and also the grip of fear and anxiety under which she was put. Under such circumstances, such a statement as found in Ex.P.1 https://hcservices.ecourts.gov.in/hcservices/ should have been given by the deceased as her husband/accused was also present there. Therefore, though Ex.P.1 is the earliest document, the Court is of the view that much evidentiary value cannot be attached to the said document, since, this Court has taken note of the mental frame of the deceased that she was in a grip of fear and anxiety under which she was put. 9. In view of the above position, this Court is of the view that the trial Judge is perfectly correct in coming to a conclusion that it is the accused/appellant who poured kerosene on her and set her ablaze and rightly found him guilty under Sections 302 and 203 IPC and sentenced him to undergo the imprisonment as narrated above and therefore, this Court finds no reason to disturb the judgment of the trial Court either factually or legally. 10. In the result, the criminal appeal fails and the same is dismissed confirming the judgment of conviction and sentenced passed by the trial Court. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The I Additional Sessions Judge, Erode District, 2. Do Through The Principal Sessions Judge, Erode 3. The Inspector of Police, Karungapalayam Police Station, Erode District. 4.The Public Prosecutor, High Court, Madras. 5. The Director General of Police, Mylapore, Chennai-4 6. The District Collector, Erode 7. The Superintendent, Central Prison, Coimbatore 1 cc To Mr.K.Ethirajulu, Advocate, SR.68703 C.A.NO.423 OF 2010 NG (CO) RH (5.10.10) https://hcservices.ecourts.gov.in/hcservices/