IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.03.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL No.766 of 2009 Selvam .. Appellant/Accused Vs. State rep. By Inspector of Police, Sathuvachari Police Station, Vellore, Vellore District. (Crime No.383 of 2003) .. Respondent/Complainant The criminal appeal has been preferred under Section 374(2) of Cr.P.C. against the judgment of the learned Principal Sessions Judge, Vellore made in S.C.No.311 of 2004, dated 20.06.2005. For Appellant : Mrs.L.Poompavai For Respondent : Mr.N.Balasubramanian, A.P.P. J U D G M E N T (The judgment of the Court was made by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Principal Sessions Division, Vellore made in S.C.No.311 of 2004 whereby the accused/appellant stood charged, tried and found guilty for the offence under sections 302(2 counts) and 498(A) I.P.C. and under section 4 of Dowry Prohibition Act. The appellant was awarded life imprisonment for each count for the offence under section 302 I.P.C and three years rigorous imprisonment for the offence under section 498(A) I.P.C and one year rigorous imprisonment for the offence under section 4 of the Dowry Prohibition Act and the sentences are ordered to run concurrently. 2. The short facts necessary for the disposal of this appeal can be stated as follows: (i) P.W.1 had three daughters, out of whom, the deceased Indirani was the first daughter. Indirani was given in marriage to the accused/appellant as the third wife. The appellant/accused and the deceased Indirani had ten months old son named Yuvaraj. The accused used to ill treat his wife. He also demanded money from her and if not paid, he assaulted her. Once, when Indirani could not tolerate the same, went to Sathuvachari Police Station and gave a https://hcservices.ecourts.gov.in/hcservices/ complaint. Both of them were called by the Police, an enquiry was conducted where they were advised to live peacefully and were sent back. (ii) A day prior to Deepavali, P.W.1 and her husband went to visit Indirani. When P.W.2 and other witnesses were chatting in front of one Velu's house, they heard distress cry from the accused house. When they went nearby the house of the accused, they found the accused coming out of the house. They went inside the house and found both Indirani and her child burning. They immediately took steps to quench fire. At that time, P.W.1 and her husband came inside and enquired Indirani. Indirani informed that it was the accused who poured kerosene on her and set herself and her son ablaze. (iii) P.W.1 and her husband took both Indirani and her child to the Government Hospital where P.W.6, doctor gave treatment at about 8.45 a.m. to Indirani. The statement of Indirani was recorded. The accident register copy was marked as Ex.P7. P.W.7 doctor gave treatment to the child Yuvaraj who was brought by her grandmother at about 8.00 a.m. and he gave the accident register copy which was marked as Ex.P9. Both Indirani and her child Yuvaraj were under treatment. (iv) An intimation was given to the Judicial Magistrate for recording statement from Indirani. Accordingly, P.W.5 Judicial Magistrate went to the Hospital. After getting the certificate from the medical person that Indirani was mentally fit to give declaration, he recorded the dying declaration of Indirani. The dying declaration proceedings were marked as Ex.P6. (v) Thereafter, P.W.9 Sub Inspector of Police, on receipt of intimation, went to the Hospital and recorded the statement of Indirani which was marked as Ex.P15. On the strength of the said statement, a case came to be registered in Crime No.383 of 2003 under section 307(2 counts) I.P.C. The printed F.I.R. Ex.P16 was despatched to Court. (vi)On receipt of a copy of the F.I.R., P.W.12, Inspector of Police of that circle, took up investigation. He proceeded to the spot, made an inspection and prepared the observation mahazar, Ex.P1 and also drew a rough sketch Ex.P.21 and photographs were taken through the photographer P.W.10 and the photographs were marked as Ex.P17 series and the negatives were marked as Ex.P18 series. Despite treatment, Indirani died. An intimation, Ex.P8 was received. Thereafter, the child also died and the death intimation Ex.P10 was received . On receipt of the death intimation, the case which was originally registered under section 307 (2 counts) I.P.C. was altered to section 302(2 counts) I.P.C. The amended F.I.R., Ex.P3 was despatched to Court. (vii) The investigating officer conducted inquest on the dead body of Indirani and also the child and prepared the inquest reports, Exs.P24 and P.25 respectively. Pursuant to the requisition made, P.W.8 doctor attached to the Government Hospital conducted autopsy on the dead body of the boy, Yuvaraj and found the following injuries. https://hcservices.ecourts.gov.in/hcservices/ "External Examination: II degree burns involving 50 – 60% of the body involving face, neck, anterior portion of chest and abdomen both upper limbs, patches in lower limbs. Red blackoned burnt area present over the above said areas. On exploration of the burnt area the tissue underneath were congested. Oedematous and in roasted appearance. Sero sanguinous material present. Stinging present over scalp hair. Soot present over the oral cavity 50 – 60 % degree burns." P.W.8, doctor gave the post mortem certificate under Ex.P11 wherein he has opined that the deceased Yuvaraj would appear to have died of oligemic shock due to 50 – 60% burn (II degree) about 20 - 26 hours prior to autopsy. (viii) Thereafter, on the requisition made, P.W.8, doctor conducted post mortem on the dead body of Indirani and found the following injuries: "External injuries: II degree burns involving 70 to 80% of the body including face, both upper limbs from back of chest and abdomen, both lower limbs present. Red with blackened burns areas present over the above said areas. On exploration tissue underneath were congested oedematous and roasted in appearance. Serosanguinous fluid present. Stinging of scalp hair present. Soot present over the oral cavity." P.W.8, doctor gave the post mortem certificate under Ex.P14 wherein he has opined that the deceased Indirani would appear to have died of hypo volemic shock due to 80% burns about 24 -30 hrs prior to autopsy. (ix) Pending investigation, the accused was arrested on 27.10.2003 at 12.30 p.m. in the presence of P.W.4 and another witness. He came forward to give confessional statement voluntarily and the same was recorded and the admissible part of the same was marked as Ex.P.30, pursuant to which, he produced M.O.4, kerosene can which was also recovered under a cover of mahazar, Ex.P4. Thereafter, the accused was sent for judicial remand. On completion of the investigation, the investigating officer filed a final report. (x) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 12 witnesses and relied on 26 exhibits and 4 material objects. On completion of the examination of the witnesses on the side of the prosecution, the accused was questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the prosecution witnesses and he denied them as false. No defence witness was examined. The Court heard the arguments advanced on either side and took the view that https://hcservices.ecourts.gov.in/hcservices/ the prosecution has proved the case beyond reasonable doubt and found the accused/appellant guilty as per the charges and awarded the punishment as referred to above. Hence, this appeal at the instance of the appellant. 3. Advancing the arguments on behalf of the appellants, Mrs.L.Poompavai, learned counsel would submit that the prosecution miserably failed to prove its case. It is true that two persons viz., Indirani and her child Yuvaraj, died out of burn injuries but the prosecution has neither placed any direct evidence nor placed necessary circumstances to prove the guilt of the accused. It is true, the prosecution examined P.Ws. 1 to 3 as witnesses who had seen the accused coming out of the house at the time when they heard the distress cry from the house of Indirani, but it cannot be inferred that it was the accused who poured kerosene and set ablaze on his wife and child. 4. According to the learned counsel, the prosecution relied on three dying declarations. First one, recorded by the doctor in the accident register, Ex.P7 at 8.45 a.m.; second one, recorded by P.W.9, Sub Inspector of Police at 10.00 a.m. marked as Ex.P15 and the third one, recorded by P.W.5, Judicial Magistrate which was marked as Ex.P.6. When these three documents were compared, there are lot of discrepancies found with regard to material particulars which would go to show that these documents could not have come into existence as putforth by the prosecution. These discrepancies would clearly indicate that they cannot have any evidentiary value at all. 5. Added further learned counsel, according to the prosecution, the occurrence has taken place at 7.00 a.m. on 26.10.2003 and both were taken to the hospital immediately. But the accident register which was marked as Ex.P7 in respect of Indirani and the accident register in respect of the child, Yuvaraj Ex.P9 contain different particulars. According to Ex.P7, the occurrence has taken place at 8.00 a.m. and due to the reason adduced therein. At the same time, when the doctor has given treatment to the child, it was stated that the occurrence has taken place at 7.00 a.m. and the child sustained burn injuries since the child dragged the burning kerosene stove. These documents contains different particulars regarding the way in which the occurrence has taken place which would clearly indicate the fact that the prosecution has not come out with true version. This would go to show that the subsequent documents in the form of dying declaration were all tutored version. 6. The learned counsel would further submit that the deceased Indirani was already aggrieved against her husband for ill-treating her and she was his third wife. Under such circumstances, she has given a false version implication him. The prosecution has miserably failed to prove its case beyond reasonable doubt but the trial court has taken an erroneous view and found the appellant/accused guilty of the above said offences. Hence, the appellant/accused is entitled for acquittal in the hands of this Court. 7. The Court paid its anxious consideration on the submissions made and looked into the materials available on record. https://hcservices.ecourts.gov.in/hcservices/ 8. It is not in controversy that one Indirani,the third wife of the accused/appellant and also her child Yuvaraj, aged 10 months, following the burn injuries were taken to the Government Hospital and they were given treatment as found in Ex.P7 and Ex.P9. They met their end on the very same night. The case which was originally registered under section 307 I.P.C. by the Sub Inspector of Police examined as P.W.9 of the respondent police was altered to section 302 I.P.C., on receipt of the death intimations, Ex.P8 and Ex.P10. The post mortem doctor, P.W.8 who conducted post mortem on both the deceased has given categoric opinion that both the deceased died out of burn injuries. This fact is not disputed by the appellant at any stage of the proceedings. 9. The case of the prosecution is that the accused used to demand money from the deceased Indirani and when there was refusal, he ill-treated her and on the date of occurrence, the accused poured kerosene on her and his child and set fire. On the contrary, the defence plea was that, it was a case of self immolation and as far as the child was concerned, the child dragged the kerosene stove and sustained burn injuries. In order to substantiate the defence plea, the learned counsel brought to the notice of the Court, the contents in Ex.P9, the accident register copy. In order to substantiate the charges levelled against the accused, the prosecution relied upon statements of Indirani which were in the form of dying declaration. It is not in controversy that she and her child were taken to the Government Hospital and they were given treatment by P.W.6 and P.W.7. There are two certificates available and both would clearly indicate that there was an accident in the house in which they sustained burn injury. 10. It is pertinent to point out that the earliest document which was in support of the prosecution is Ex.P7 she has given a statement to P.W.6 doctor where she has clearly stated that it was her husband who poured kerosene on her and her child and set them ablaze. The earliest document given by her is within a short span of time from the time of occurrence and there is nothing to indicate that there was any intervention to tutor her. Apart from that, P.W.6 doctor has categorically stated that she has conscious and oriented at the time when she gave statement. The Court is unable to see any reason why this document should be disbelieved. At the same time, the contention of the learned counsel for the appellant that the contents in Ex.P9 accident register was in favour of the appellant, cannot be accepted for the simple reason that the child was taken to the hospital and admitted. According to P.W.9 doctor, the child was admitted by the paternal grand mother of the child. It is quite natural, the mother who has come to know about the incident, in order to save her son, has given a different story as if it was an accident at that time. Hence, that document cannot be accepted. The time variation found in Ex.P7 and Ex.P9 does not make the matter much. 11. Further, in the instant case, two other documents available in favour of the prosecution is the statement recorded by the Sub- Inspector of Police marked as Ex.P15 on the strength of which, a case came to be registered under section 307 (2 counts) and the dying declaration, Ex.P6 recorded by P.W.5,Judicial Magistrate. P.W.5 has https://hcservices.ecourts.gov.in/hcservices/ categorically deposed before the court that she went to the Hospital and after being certified that Indirani was conscious enough, recorded the statement after completing the procedural formalities. No infirmity was noticed by this Court insofar as the dying declaration,Ex.P.6 is concerned and the Court is unable to see any reason to suspect the above said documents. All the above three documents viz., Ex.P7, accident register and Ex.P15, statement given by Indirani to the Police and also the dying declaration Ex.P.6 to Judicial Magistrate, would go to show that it was the accused who poured kerosene on his wife and child and set both of them ablaze. The trial court has marshalled the evidence proper and has come to a correct conclusion that it was the accused who has committed the above said offences. The contentions put forth by the learned counsel for the appellant do not carry any merit whatsoever. Hence, the contentions of the learned counsel is liable to be rejected. Accordingly, the same is rejected. 12. The trial Judge is perfectly in finding the accused guilty under sections 302 (2 counts) but as far as the finding that the accused is guilty under section 498(A) I.P.C. and under section 4 of Dowry Prohibition Act is concerned, the Court is unable to see any reason pointing to the guilt of the accused for the offence under section 498(A) I.P.C. and section 4 of Dowry Prohibition Act, in any part of the statement given by the deceased Indirani. Therefore, that part of the judgment has got to be set aside. 13. Accordingly, the judgment of conviction and sentence imposed on the appellant/accused by the trial Court under section 498(A) I.P.C. and section 4 of the Dowry Prohibition Act is set aside and the judgment of conviction and sentence imposed on the appellant by the trial Court under section 302(2 counts) I.P.C. is confirmed. 14. With the above modification in conviction and sentence, the criminal appeal is dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar vsi To 1. The Principal Sessions Judge, Vellore, Vellore District. 2. The Inspector of Police, Sathuvachari Police Station, Vellore District. 3. The Public Prosecutor, High Court, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 4.The Superintendent of Police, Vellore District. 5.The Director General of Police, Madras. 6.The District Collector, Vellore. 7.The Superintendent, Central Prison, Vellore. 8.The Section Officer, Criminal Section, High Court, Madras. CRL.A.No.766 of 2009 KU {CO} TP/12.3.2010. https://hcservices.ecourts.gov.in/hcservices/