IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.8.2009 CORAM: THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE M.JEYAPAUL Criminal Appeal No.95 of 2009 Velu .. Appellant/Accused Vs. State of Tamil Nadu, rep. by Inspector of Police, Marandahalli Police Station Dharmapuri District. (Crime No.104/2007) .. Respondent/Complainant Prayer : Appeal against the Judgment, dated 9.1.2009, passed in S.C.No.46 of 2008 on the file of Principal Sessions Judge, Dharmapuri. * * * For Appellant :: Mr. R.Selvakumar For Respondent :: Mr. Hassan Mohamed Jinnah Addl. Public Prosecutor J U D G M E N T (The Judgment of the Court was delivered by M.JEYAPAUL, J.) Appellant/Accused Velu was convicted for offence under Section 302 of Indian Penal Code and was sentenced to Life Imprisonment and to pay a fine of Rs.2000/-, in default, to undergo Rigorous imprisonment for six months. Aggrieved by the aforesaid verdict passed by the Trial Court as against the appellant/accused, the present appeal has been preferred. 2. On the side of the prosecution, eleven witnesses were examined and thirteen documents and six material objects were marked. On the side of defence, Dr.Ramalingam was examined as https://hcservices.ecourts.gov.in/hcservices/ DW.1 and copy of the Accident Register issued by DW.1 to the deceased Venkattamma was marked as Ex.D1. 3. The sum and substance of the case of the prosecution, as unfolded by the witnesses examined on their side, reads as follows:- Natarajan-PW.1 is none other than the son of the deceased Venkattamma alias Panjali. The deceased Venkattamma alias Panjali was residing at Siriyampatti village. She had a grocery shop adjoining her house. Natarajan-PW.1, having received a communication about the burn injuries sustained by his mother at about 9 pm on 21.3.2007, rushed from Bangalore straight to the Government Hospital, Dharmapuri and reached at about 3.30 am on 22.3.2007. Venkattamma was in a conscious state of mind. PW.1 enquired her about the incident. She informed him that at about 8 pm on the previous night, the accused Velu, who having perturbed by the refusal of the deceased Venkattamma to part with any money, poured kerosene on her and set fire to her. Thereafter, PW.1 proceeded to Bangalore to bring his wife and children. Dr.Pandurangan-PW.7, who was serving in the Government Hospital, Dharmapuri, despatched a communication-Ex.P4 to the learned Judicial Magistrate, Dharmapuri Mr.K.Karunanidhi-PW.6 for taking steps to record dying declaration. On receipt of such information, PW.6 rushed to the Government Hospital, Dharmapuri at 8.30 am on 22.3.2007. The Judicial Magistrate, Dharmapuri Mr.K.Karunanidhi-PW.6 having located the deceased Venkattamma with burn injuries in the Government Hospital, Dharmapuri with the assistance of Dr.Pandurangan-PW.7, ascertained that the deceased Venkattamma was in a conscious state of mind and was fit to give dying declaration. Dr.Pandurangan-PW.7 certified the conscious and fit state of mind of Venkattamma even before the dying declaration was recorded by PW.6. The Judicial Magistrate-PW.6 also put certain questions to the said Venkattamma and having ascertained that she was in a conscious and fit state of mind, started recording the dying declaration. The said Venkattamma declared that it was only the accused Velu, who came in an inebriated state, poured kerosene and set fire to her. Dr.Pandurangan-PW.7 certified immediately after recording of the dying declaration by Judicial Magistrate-PW.6 that Venkattamma was in a conscious and fit state of mind throughout the proceedings conducted by PW.6. The proceedings of Dying Declaration recorded https://hcservices.ecourts.gov.in/hcservices/ by the Judicial Magistrate-PW.6 was marked as Ex.P5. Natarajan-PW.1 came down from Bangalore along with his family members and found that his mother Venkattamma has passed away. He went to Marandahally Police Station at about 5 pm on 23.3.2007 and submitted a Complaint-Ex.P1 to the Head Constable S.Ramuru-PW.10 who registered a case in Crime No.104/2007 under Section 302 IPC. He prepared First Information Report-Ex.P8 and despatched the original to the Judicial Magistrate, Palacode and submitted the copies thereof to the higher officials concerned. The Inspector of Police Mr.S.Venugopal-PW.11, having received the copy of First Information Report registered by PW.10, rushed to the scene of occurrence at about 5.30 pm on 23.3.2007. He, having inspected the scene of occurrence, prepared Observation mahazar- Ex.P2 in the presence of PW.5 Panniappan and another. He also prepared Rough Sketch-Ex.P9 reflecting the scene of occurrence. He seized M.Os.1 to 6 from the scene of occurrence. He also examined the witnesses who were present at the scene of occurrence and recorded their statements. Kullavedi-PW.2, who was at the temple located close by the shop of the deceased Venkattamma, saw Venkattamma emerging out of her house with burn injuries. Subramani-PW.3 also made arrangement along with PW.2 to take Venkattamma to the hospital for treatment. On 24.3.2007, Inspector Mr.S.Venugopal-PW.11 proceeded to the Government Hospital, Dharmapuri and held inquest in the presence of panchayatars and prepared Inquest Report-Ex.P10. He sent Requisition-Ex.P7 to Dr.Pandurangan-PW.7 for conducting post- mortem on the dead body of Venkattamma. Dr.Pandurangan-PW.7 having received the requisition from PW.11 commenced Post-mortem examination at about 12 noon on 24.3.2007 on the dead body of Venkattamma and found the following: "Internal Examination:- Hyoid Bone intact. Both sides ribs normal. Lungs: Weight normal on cut section congested. Heart: Weight normal on cut section congested. Chambers full. Carbon particles seen in both Trachea and lungs. Liver: Weight normal on cut section congested. Spleen: Weight normal on cut section congested. Stomach: Contains water about 100 ml. Intestines: Distended with air and fecal matter. Bladder : Empty. Kidney: Both kidney weight normal on C/S congested. Uterus: Weight normal on C/S congested and empty. Skull: Normal. https://hcservices.ecourts.gov.in/hcservices/ No fracture was seen. Base of the skull: Normal. Brain: Weight normal on C/S congested." He opined in the Post-mortem Certificate-Ex.P6 that the deceased appeared to have died about 24 hours to 30 hours prior to Autopsy on account of Burns and Septicemic shock. Inspector Mr.S.Venugopal-PW.11 submitted a Requisition- Ex.P11 to the learned Judicial Magistrate, Palacode to despatch the Material Objects recovered and submitted to the Court for chemical examination. The learned Judicial Magistrate despatched the Material Objects under Covering letter-Ex.P12. On 24.4.2007, accused Velu was arrested and was remanded to judicial custody. Inspector Mr.S.Venugopal-PW.11 completed the investigation and filed final report as against the accused under Section 302 IPC on 2.6.2007. 4. The incriminating circumstances spoken to by the aforesaid witnesses were put to the accused Velu under Section 313 Cr.P.C in the form of Questionnaire. The accused Velu came out with a total denial of his involvement in the case of murder. 5. On the side of defence, Dr.Ramalingam-DW.1, who admitted the injured Venkattamma to hospital for treatment, was examined. He has deposed that the injured Venkattamma, who was brought by her relative Santhi, informed him that at about 8 pm on 21.3.2007 she sustained burn injuries at her residence. He found burn injuries on the person of Venkattamma all over her body above her knees. He issued copy of the Accident Register-Ex.D1, having found that the injured Venkattamma sustained 90% burn injuries. 6. The Trial Court, having completed trial, placed reliance on the Dying Declaration-Ex.P5 recorded by the learned Judicial Magistrate-PW.6 in the background of the medical evidence available on record, has returned a verdict of conviction and the accused Velu was sentenced to life imprisonment. https://hcservices.ecourts.gov.in/hcservices/ 7. Mr. R.Selvakumar, learned counsel appearing for the appellant/accused, submits that Ex.P1 Complaint lodged by P.W.1 Natarajan does not speak about the dying declaration alleged to have been given by the deceased Venkatamma. Referring to the proceedings of Ex.P5 Dying Declaration it is submitted that it has been tailored and modulated. Referring to the evidence of the Investigating Officer, the learned counsel for the appellant would submit that the Investigating Officer never mentioned about the dying declaration alleged to have been recorded by P.W.6 Judicial Magistrate Mr.Karunakaran; the list of witnesses annexed along with the Final Report does not refer to the learned Judicial Magistrate as one of the witnesses proposed to be examined on the side of the prosecution; the prosecution has wantonly not examined D.W.1 Dr. Ramalingam, who admitted the injured Venkatamma to hospital; though the prosecution witnesses would state that P.W.2 Kullavedi, P.W.3 Subramani and yet another person, proceeded to Government Hospital, Dharmapuri, for admitting the injured Venkatamma, D.W.1, Dr. Ramalingam has categorically deposed that it was Shanthi, who brought the injured Venkatamma for admission to the hospital; and only after about 7 hrs. delay, Venkatamma was admitted to hospital. It is his further submission that the First Information Report was registered after almost two days delay and no plausible explanation is forthcoming from the side of the prosecution in this regard; there is no corroborating material to vouchsafe the dying declaration recorded by P.W.6 Judicial Magistrate Mr.Karunakaran; P.W.7 Dr. Pandurangan never referred to during the course of examination the certificate issued by him as to the conscious and fit state of mind of the injured Venkatamma. He would further submit that the prosecution has come out with two parallel versions, one through the dying declaration and another through the evidence of other witnesses; there is also some contradiction with respect to the time of occurrence; and the deceased Venkatamma would state that the occurrence took place at 6.00 p.m., but others would state that the occurrence took place at 8.00 p.m. on the fateful day. It is his vehement submission that the Court had not framed any question based on the incriminating circumstances spoken to by the witnesses to squarely fix accused Velu for the offence of murder and when such a question was not framed and put to the accused, the questioning under Section 313 CrPC put to accused Velu is not valid in the eye of law. The last submission made the learned counsel for the appellant/accused is that the person who sustained 90% burn injuries could not have spoken clearly that it was only the accused who committed the offence. 8. Mr. Hassan Mohamed Jinnah, learned Additional Public Prosecutor, would submit that no motive was attributed for implicating accused Velu in this case; the evidence of P.W.1 Natarajan lends corroboration to the dying declaration given by the https://hcservices.ecourts.gov.in/hcservices/ deceased Venkatamma; there is no inconsistency found in the dying declaration; it has been recorded by P.W.6 Judicial Magistrate Mr.Karunakaran after complying with all the required formalities and there is no reason to reject the dying declaration recorded by P.W.6 Judicial Magistrate Mr.Karunakaran. Therefore, the learned Additional Public Prosecutor would submit that there is no warrant for interfering with the well merited judgment of the trial Court. 9 There is no eye witness to the occurrence. The entire case of the prosecution rests on the dying declaration recorded by P.W.6 Judicial Magistrate Mr.Karunakaran. If the said dying declaration inspires confidence, there is no embargo for the Court to rely upon the dying declaration. If the dying declaration is found to be true and it is not influenced by the close relatives of the sinking injured Venkatamma, there is no bar for the Court to rely upon the dying declaration and render a verdict of conviction. 10. Let us now referred to the evidence of P.W.6 Judicial Magistrate Mr.Karunakaran in the background of the proceedings of the dying declaration marked as Ex.P5. It is found that P.W.6 Judicial Magistrate Mr.Karunakaran having ascertained, even before he embarked upon the process of recording of dying declaration, the conscious and fit state of mind of the injured Venkatamma from P.W.7 Dr. Pandurangan, who was on duty at that time. P.W.6 Judicial Magistrate Mr.Karunakaran also chose to put certain questions to satisfy himself as to the conscious and fit state of mind of the injured Venkatamma. Only after his satisfaction, it is found that he started recording the dying declaration of Venkatamma. Venkatamma had quite categorically stated before P.W.6 Judicial Magistrate Mr.Karunakaran that it was only the accused Velu who authored the crime. She had reiterated the role of accused Velu in the dying declaration given by her. P.W.6 Judicial Magistrate Mr.Karunakaran has ascertained, whether she was conscious and in a fit state of mind during the entire course of recording the dying declaration, from P.W.7 Dr. Pandurangan. P.W.7 Dr. Pandurangan also certified after completion of dying declaration that the injured Venkatamma was in a fit and conscious state of mind throughout the proceedings. 11. It is true that P.W.7 Dr. Pandurangan did not refer to the Certificate given by him as to the conscious and fit state of mind of the victim Venkatamma. It may be a lapse on the part of the prosecuting agency in not eliciting from P.W.7 Dr. Pandurangan as to the role he had played in the matter of recording the dying declaration. But that will not definitely go to the root of the case inasmuch as P.W.6 Judicial Magistrate Mr.Karunakaran has https://hcservices.ecourts.gov.in/hcservices/ performed his official duty while recording the dying declaration. 12. It is a settled proposition of law that where the learned Judicial Magistrate, who records the dying declaration, deposes before the Court that the deceased was in a fit and conscious state, lack of certification, if any, by the doctor as to the fitness of mind of the declarant will not invalidate the dying declaration recorded by the learned Judicial Magistrate. The essential thing is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. It has been proved before the trial Court that the learned Judicial Magistrate only after satisfying himself that the declarant was in a conscious and fit state of mind, recorded the dying declaration. 13. The learned counsel for the appellant/accused referred to the observation made by the Supreme Court in SMT.LAXMI V.. OM PRAKASH AND OTHERS [2001 CRI. L.J. 3302]. That was a case where an Assistant Sub-Inspector of Police came out with a version that the deceased gave the dying declaration. It appears that the Assistant Sub-Inspector in that case did not refer to the dying declaration alleged to have been given by the deceased to him to the Investigation Officer, who investigated the case. The dying declaration made by the deceased to the Assistant Sub-Inspector of Police also did not find a place in First Information Report lodged subsequently by the Investigation Officer. Under such circumstances, the Supreme Court observed that it was not safe to rely upon the only material in the form of dying declaration alleged to have been given by the deceased to the Assistant Sub- Inspector of Police and record conviction. 14. The learned counsel for the appellant also referred to the decision in SHEIKH MEHEBOOB ALIAS HETAK AND OTHERS V.. STATE OF MAHARASHTRA [AIR 2005 SC 1805]. That was a case where there were two parallel versions of the prosecution as to the cause of death of the victim, one version being that the victim sustained 'accidental burns' and yet another version being that it was a 'self-inflicted burns'. The dying declaration itself would suggest that the victim poured kerosene on himself and set fire to him. Therefore, the Supreme Court observed that the facts and circumstances projected by the prosecution raised serious doubts as to the credibility of the dying declaration alleged to have been given by the victim. 15. The learned counsel for the appellant referred to yet https://hcservices.ecourts.gov.in/hcservices/ another decision in CHACKO V.. STATE OF KERALA [(2003) 1 SCC 112]. That was a case where the contents of the dying declaration appeared to have been arranged in such a way to accommodate the limited space available above the thumb impression of the deceased. Therefore, the Supreme Court entertained doubt about the genuineness of the dying declaration given by the victim. In the instant case, the prosecution has not come out with two parallel versions about the cause of death. It is true that D.W.1 Dr. Ramalingam, who in fact admitted the victim to the hospital, has spoken to the fact that the victim informed him that she sustained burn injuries in her house. Such a first version of the victim before the doctor does not go to the root of the case. The information passed on to D.W.1 Dr. Ramalingam does not say that she sustained 'self- inflicted' burn injuries. Of course, he has not enquired about the manner in which she sustained injuries. This is not a case where any dying declaration given to a police officer is solely relied upon for the purpose of recording conviction. Here is the case where the learned Judicial Magistrate has performed his official duty in recording the dying declaration after complying with all the required formalities. 16. On a careful perusal of the dying declaration, we find that the learned Judicial Magistrate has not chosen to arrange the sentences in order to accommodate the space above the thumb impression of the deceased. Of course, one thumb impression on yet another thumb impression is found in the dying declaration given by the deceased. The learned Judicial Magistrate has come out with a plausible explanation with regard to the over-lapping thumb impression that he had to obtain thumb impression of the deceased again as the first thumb impression put by her first was not legible. In view of the above facts and circumstances of the case, the Court finds that the aforesaid decisions submitted by the learned counsel for the appellant/accused do not apply to the case on hand. 17. As rightly pointed by the learned counsel for the appellant/accused, there is almost delay of about two days in lodging First Information Report. P.W.1 Natarajan has categorically deposed that immediately after seeing his mother Venkatamma in the Government Hospital, Dharmapuri, he had to rush back to Bangalore to bring his wife and children, but, by that time the injured Venkatamma had already passed away. The injured had sustained 90% of burn injuries. It is quite natural for the relatives to give best of treatment to the injured who is sinking without minding to set the law in motion. It is found that the injured Venkatamma was rushed to the hospital during mid of night for admission to the Government Hospital, Dharmapuri, for treatment. The next day https://hcservices.ecourts.gov.in/hcservices/ itself she had given the dying declaration to P.W.6 Judicial Magistrate Mr.Karunakaran. As D.W.1 Dr. Ramalingam had not specifically recorded as to the cause of injury, the police authorities had no occasion to seize of the crime. It is only P.W.1 Natarajan after coming down from Bangalore and also after coming to know that his mother had passed away, went to the police station and lodged the complaint, of course, belatedly. The aforesaid facts and circumstance would go to show that there was no scheme on the part of the Investigating Agency to rope in a person, who was not involved in this case. The aforesaid delay in the above facts and circumstances of the case does not affect the case of the prosecution. 18. Coming to the proceedings under Section 313 CrPC, recorded by the learned Sessions Judge, it is submitted that proper question was not put to the accused based on the incriminating circumstances spoken to by the witnesses. To support his submission, the learned counsel for the appellant referred to a decision reported in SHAIKH MAQSOOD V.. STATE OF MAHARASHTRA [(2009) 6 SCC 583]. That was a case where the incriminating circumstance that it was only the accused who authored the crime was spoken to by witnesses but quite unfortunately the proceedings under Section 313 CrPC was quite silent about such an incriminating circumstance spoken to by the witnesses. In view of the above, the Supreme Court has observed that the improper proceedings conducted under S.313 CrPC inasmuch no question was asked even remotely regarding existence of any material to hold the appellant guilty was fatal. The Supreme Court has observed thus - "14. The word 'generally' in sub-section (1) (b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable to accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad https://hcservices.ecourts.gov.in/hcservices/ in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give." Each and every incriminating circumstance spoken to by the witnesses will have to be distinctly put to the accused inviting him to come out with explanation for such incriminating circumstances. If the accused is an ignorant or illiterate person, the questionnaire should be couched in such a way that such a person could appreciate and understand the incriminating piece of evidence spoken to by the witnesses. The scope of S.313 CrPC is only to draw, specifically, the attention of the accused to the clinching materials available on record for the charge framed as against him. In the case on hand, it is found that the Sessions Judge, having culled out the incriminating circumstances found in the dying declaration recorded by P.W.6 Judicial Magistrate Mr.Karunakaran, properly brought to the notice of the accused eliciting his response. Therefore, the above ratio does not apply to the facts and circumstance of this case. 19. The learned counsel for the appellant cites yet another decision in BIMLA DEVI AND ANOTHER V.. STATE OF JAMMU AND KASHMIR [(2009) 6 SCC 629]. That was a case where no question was put to the Accused while examining under S.313 CrPC relating to the charge of demand of dowry and abetment of suicide. That being so, the Supreme Court observed that the conviction for the charge under Section 498-A IPC for dowry death and the charge under Section 306 IPC for abetment of suicide would not stand legal scrutiny. As already pointed by this Court, in the case on hand, the learned trial Judge has put to the accused the incriminating circumstances available on record and drawn his attention thereto. 20. He also referred to yet another decision in RANVIR YADAV V.. STATE OF BIHAR [(2009) 6 SCC 595]. That was also a case where the appellant/accused was not brought to his notice the incriminating materials available on record. Therefore, the aforesaid decision also will not apply to the case on hand. 21. We are unable to appreciate the submission made the learned counsel for the appellant that the trial Judge on his own should have separately couched a question based on the incriminating materials available on record and put to the accused inviting his https://hcservices.ecourts.gov.in/hcservices/ response thereto. The trial Judge is supposed to refer only the incriminating circumstances spoken to by the witnesses and draw the attention of the accused to explain to those circumstances. The trial Judge is not supposed to frame any independent question under Section 313 of Criminal Procedure Code. 22. P.W.1 Natarajan, who is the son of the victim, has also come out with reliable version that his mother disclosed him that it was only the accused who poured kerosene and set fire on her. Such version which amounts to oral declaration lends corroboration to the judicial dying declaration given by the victim to P.W.6 Judicial Magistrate Mr.Karunakaran. The court finds that the dying declaration of the deceased before P.W.6 Judicial Magistrate Mr.Karunakaran and also the oral declaration before his son P.W.1 Natarajan inspires confidence. Only in a case