IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.01.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal No.86 of 2007 Mahi @ Mahindran .. Appellant -vs- State rep.by Inspector of Police Peerkankaranai Police Station Kancheepuram District Crime No.142 of 2004 .. Respondent Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgment dated 9.11.2006 made in S.C.No.184 of 2005 on the file of the learned Principal Sessions Judge, Chengalpattu. For Appellant :: Mr.R.Sankarasubbu For Respondent :: Mr.P.Kumaresan Addl. Public Prosecutor JUDGMENT D.MURUGESAN, J. By the judgment in S.C.No.184 of 2005 dated 9.11.2006, the learned Principal Sessions Judge, Chengalpattu found the sole accused, the appellant herein, guilty of the offence under Section 302 IPC, convicted and sentenced him to undergo life imprisonment and also to pay a fine of Rs.1,000/-, in default of which to undergo rigorous imprisonment for one year. Challenging the said conviction and sentence, the appellant is before this Court by way of the present appeal. 2. The appellant (who will be hereinafter referred to as the "accused") was put to face the trial on the following prosecution case:- The deceased-Shalina was living with her son in a farmhouse of Trueman at Vengambakkam village. The accused by name Mahi @ Mahindran was also working in the said farmhouse. On the pretext of helping the deceased, he used to visit the house of the deceased frequently and later he used to compel the deceased for sexual intercourse. However, the deceased refused to accede to the desire of the accused. On the fateful day of occurrence i.e., on 10.7.2004 at about 6.00 p.m., the https://hcservices.ecourts.gov.in/hcservices/ accused entered into the house and compelled the deceased for sexual intercourse. At that time, the deceased was preparing tea. Angered by the non-cooperation and refusal on the part of the deceased, the accused handpicked the stove, poured the kerosene on the deceased and ran away from the scene of occurrence after setting her ablaze. As the deceased sustained severe burn injuries, she was taken to Chromepet Government Hospital by her son, P.W.1 and on their advice, she was admitted in Government Kilpauk Medical College & Hospital at 9.30 p.m., on the same day. 3. On receipt of intimation from the Government Kilpauk Medical College & Hospital at 10.15 p.m., on 10.7.2004, P.W.11, the Sub Inspector of Police attached to Peerkankaranai Police Station, went to the hospital after handing over a requisition under Ex.P-12 to the IX Metropolitan Magistrate, Saidapet to record the dying declaration of the deceased. As the deceased was not conscious to give such a dying declaration, as certified by the duty doctor Nirmala under Ex.P-6, he enquired and recorded the statement of P.W.1, the son of the deceased, under Ex.P-1 and registered the same in Cr.No.142 of 2004 for the offence under Section 307 IPC. The First Information Report is Ex.P-11. 4. On receipt of the requisition from P.W.11, P.W.8, the IX Metropolitan Magistrate, Saidapet went to the Government Kilpauk Medical College & Hospital at about 2.45 a.m., on 11.7.2004 and since the deceased was not conscious to give such a dying declaration as certified by the duty doctor Nirmala under Ex.P-6, he could not record the dying declaration. 5. In the meanwhile, P.W.11 went to the scene of occurrence and prepared the Observation Mahazar, Ex.P-2 and also drew rough sketch, Ex.P-13 in the presence of P.W.6 and other witness. He examined P.Ws.1,2 and other witnesses and recorded their statements. As he received information from the hospital that the deceased had regained consciousness, he again gave a requisition to P.W.8, the IX Metropolitan Magistrate, Saidapet at 7.40 a.m., on 11.7.2004 for recording the dying declaration of the deceased. 6. On receipt of such requisition, P.W.8 again went to the hospital at about 8.30 a.m., on 11.7.2004 and after following the procedures and after ascertaining the fitness of the deceased to give such a statement from the doctor-P.W.9 under Ex.P-7, recorded the dying declaration, Ex.P-5 of the deceased in the presence of P.W.9 between 8.30 a.m., and 9.05 a.m. P.W.9 has also certified under Ex.P-8 that the deceased was conscious and oriented throughout the period of recording of the dying declaration. 7. As P.W.11 received intimation from the hospital that the deceased had died at 6.30 p.m., on 11.7.2004, he altered the offence to one under Section 302 IPC and sent the altered report, Ex.P-14 to the Court as well as to the higher police officials. He thereafter handed over the investigation to P.W.12, the Inspector of Police in-charge of Peerkankaranai Police Station. https://hcservices.ecourts.gov.in/hcservices/ 8. P.W.12, after scrutinising the file and the investigation done by P.W.11, went to Government Kilpauk Medical College & Hospital on 12.7.2004 and conducted inquest on the body of the deceased between 8.00 a.m., and 10.30 a.m., in the presence of panchayatdars and prepared the inquest report, Ex.P-15. He thereafter gave a requisition to the doctor and sent the body through the Head Constable for conducting post-mortem. 9. P.W.12, Professor, Department of Forensic Medicine attached to Kilpauk Medical College & Hospital, on receipt of requisition and the body at 11.30 a.m., on 12.7.2004, commenced post-mortem at 11.45 a.m., and he noted the following injury:- "Infected superficial burns seen over the face, neck, both sides of upper part of chest front and back of both upper limbs upper part of back and scapular region and part of middle of left thigh (48% burns). No other injury made out." He issued the post-mortem certificate, Ex.P-9 with his opinion that the deceased would appear to have died due to the complication of burns. 10. P.W.12, continuing with his investigation, arrested the accused near Selaiyur Camp Road ICICI Bank at 12.00 noon and recorded his voluntary statement in the presence of P.W.7 and another witness. He brought the accused to the police station and remanded him to judicial custody. He examined the other witnesses and recorded their statements. He thereafter handed over the investigation to P.W.13, the incumbent Inspector of Police of Peerkankaranai Police Station. 11. P.W.13 took up investigation on 27.7.2004. He scrutinised the file and satisfied himself with the investigation done by P.Ws.11 & 12. He thereafter examined the Head Constable and the post-mortem doctor- P.W.10 and recorded their statements. After completing investigation, he laid the final report on 12.10.2004 against the accused before the Court for the offence under Section 302 IPC. 12. Before the trial Court, the prosecution examined 13 witnesses, marked 17 exhibits and produced 8 material objects to prove the charge against the accused. 13. When the accused was questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against him, he denied each and every incriminating material as false. No witness was examined and no document was marked on the side of the defence. However, the learned trial Judge found the accused guilty, convicted and sentenced him for the offence as stated earlier. 14. Mr.R.Sankarasubbu, learned counsel appearing for the accused has submitted that it is purely a case of circumstantial evidence, as there is no eye-witness to the occurrence. According to the learned counsel, the two circumstances namely, the dying declaration and the last seen theory as spoken to by P.W.3 are not sufficient to hold the accused guilty of the offence. https://hcservices.ecourts.gov.in/hcservices/ 15. So far as the last seen theory is concerned, the learned counsel would submit that though P.W.3 has spoken for having seen the accused on the evening of the date of occurrence and he also smelt kerosene odour on the clothes of the accused, when questioned, the accused did not reply and further the accused took bath in a nearby water tank. Thereafter, P.W.3 went to the house of the deceased and found the deceased ablaze. He tried to douse the fire by removing his lungi and rolling the same around the body of the deceased. Thereafter, he took the deceased to an auto-rickshaw stand, from where he was taken to the hospital by P.W.1. The learned counsel would submit that P.W.3 has been introduced only to prove additional circumstance, as he was examined by the Investigating Officer only after four days of the occurrence when his statement under Section 161 Cr.P.C., was recorded. He would also submit that though P.W.3 has spoken about the panchayat board President of Meppedu village for having seen himself and the deceased in the auto-rickshaw stand, the said President has not been examined. The failure on the part of the prosecution to examine the said President throws a serious doubt about the presence of P.W.3 either in the scene of occurrence or his attempt to save the life of the deceased or his version as to taking the deceased to the auto-rickshaw stand. Further, the driver of the auto-rickshaw was not examined, again throwing a serious doubt about the presence of P.W.3 in the scene of occurrence as spoken to by him. Hence the evidence of P.W.3 cannot be believed. 16. So far as the next circumstance namely, the dying declaration is concerned, the learned counsel would submit that the said dying declaration cannot be believed. According to the learned counsel, it is the case of the prosecution that the deceased was first taken to the Chromepet Government Hospital and thereafter to the Government Kilpauk Medical College & Hospital and was admitted by her son, P.W.1. The prosecution story is that when the IX Metropolitan Magistrate, P.W.8 made an attempt to record the dying declaration of the deceased, the deceased was not in a fit state of mind to give such a declaration, as certified by one Dr.Nirmala. On the other hand, the accident register, Ex.P-16 shows that the patient was brought conscious and well oriented while she was brought to the hospital by P.W.1. In these circumstances, it should be presumed that the deceased had already given a dying declaration to the doctor at Chromepet Government Hospital, but the same has been suppressed by the prosecution. Further the alleged doctor who has certified as to the mental state of mind of the deceased has also not been examined, which is fatal to the prosecution case. He would also submit that the initial dying declaration said to have been given by the deceased to the doctor at about 9.30 p.m., was suppressed, as the said doctor has not been examined. The non examination of the doctor is fatal to the prosecution case and in support of the said submission, the learned counsel would rely upon the judgment of the Apex Court in Jain Karan v. State of Delhi (NCT) (1999 SCC (Crl.) 1385). In the absence of any evidence to show at what point of time the deceased regained consciousness to give a declaration, the subsequent recording of dying declaration, Ex.P-5 by P.W.8, the IX Metropolitan Magistrate in the presence of P.W.9-doctor, who issued the certificate under Exs.P-7 and P-8 cannot be believed. https://hcservices.ecourts.gov.in/hcservices/ 17. Further, the learned counsel would submit that the Magistrate has not ensured as to whether the deceased was in a fit state of mind to give the dying declaration. In support of the said submission, the learned counsel relied upon the judgment of the Apex Court in Lallubhai Devchand Shah v. State of Gujarat (1971) 3 SCC 767. 18. He would further submit that as the deceased was taken to the hospital by P.W.1, her son, who was with her right from the beginning till she was declared dead on the next day, there is every possibility of tutoring the deceased to falsely implicate the accused. In support of the said submission, the learned counsel would rely upon the judgment of the Apex Court in K.Ramachandra Reddy and another v. The Public Prosecutor (1976 SCC (Crl.) 473). 19. Further, the learned counsel would submit that though the dying declaration is entitled to great weight, as the accused does not have an opportunity to cross-examine the person who gave such declaration, the Court must insist that the dying declaration to be of such nature as to inspire full confidence of Court in its correctness. The learned counsel would submit that on the facts of this case, the prosecution has not let in any evidence as to how and when the deceased regained consciousness, especially when the Magistrate, who visited the hospital earlier, found that the deceased was not conscious. Thereafter, he was informed to come to the hospital to record the dying declaration as the deceased regained consciousness. In support of the said submission, the learned counsel would rely upon the judgment of the Apex Court in Mohan Lal and others v. State of Haryana (2007 (1) MWN (Crl.) 194). 20. Finally the learned counsel would submit that the medical evidence also does not support the case of the prosecution, as the prosecution case is that the accused poured kerosene on the deceased and set her ablaze and if that be so, certainly, the scalp hair of the deceased could have been burnt, but the post-mortem certificate, Ex.P-9 shows that there was infected superficial burns seen over the face, neck, both sides of upper part of chest front and back of both upper limbs upper part of back and scapular region and part of middle of left thigh. Except the above injuries, no other injuries were noticed by the post-mortem doctor, P.W.10. In support of the said submission, the learned counsel would rely upon the judgment of the Apex Court in Tarun alias Gautam Mukherjee v. State of West Bengal (2003 SCC (Crl.) 1052). 21. On the other hand, Mr.P.Kumaresan, the learned Additional Public Prosecutor would submit that P.W.3 is an independent witness. There is nothing to suggest as to why he should falsely implicate the accused. His evidence is quite natural, as he has deposed that when he saw the accused just immediately after the occurrence i.e., on the evening of 10.7.2004, he smelt kerosene odour in his clothes and when he asked the accused about the same, the accused did not reply. To conceal the offence, the accused also took bath in a nearby tank. On suspicion, P.W.3 went to the house and found the deceased ablaze and thereafter removed his lungi and tried to save her life and thereafter he took the deceased to an auto-rickshaw stand and by that time, as P.W.1 came https://hcservices.ecourts.gov.in/hcservices/ there, he sent the deceased to the hospital along with P.W.1. Of course, the President of Meppedu village who was present at the auto- rickshaw stand and who witnessed the above, was not examined. Inasmuch as the prosecution has proved its case as to the last seen theory as spoken to by P.W.3 as well as the dying declaration, the mere failure to examine the President is not fatal to the prosecution case. Similarly, the failure on the part of the prosecution to examine the auto driver is also not fatal to the prosecution case inasmuch as the fact that the deceased was taken firstly to the Chromepet Government Hospital and was admitted. 22. So far as the next contention as to the dying declaration is concerned, the learned Additional Public Prosecutor would submit that when the deceased was taken to Chromepet Government Hospital, she was in a state of mind to speak and therefore she informed P.W.1 that when the accused made an attempt to sexually harass her and when she refused, he poured kerosene and set her ablaze. Thereafter, when an intimation was given to the IX Metropolitan Magistrate, P.W.8, he came around 2.45 a.m., to the hospital on 11.7.2004 and as he found the deceased was unconscious, he therefore could not record her declaration. When he again received subsequent intimation, he went to the hospital at 8.30 a.m., and as he found the deceased was in a fit state of mind to give the declaration and that the doctor-P.W.9 also certified to the said effect, he recorded the dying declaration. Hence the contention of the learned counsel for the accused merits no acceptance, as could be seen from the fact that the Magistrate did not record the dying declaration when he visited the hospital at 2.30 a.m., initially and he recorded such a declaration only after ascertaining the fitness of the deceased at 8.30 a.m. He would also submit that though P.W.1 was present with the deceased, the accused has not even suggested P.W.1 that there was a possibility of tutoring of the deceased and in the absence of such defence, the accused is not entitled to raise the said contention for the first time in the appeal. Moreover, he would submit that the deceased was first taken to Chromepet Government Hospital and thereafter to Government Kilpauk Medical College & Hospital and she was suffering on account of burn injuries and in the normal course and under the above circumstance, one cannot expect any tutoring is possible and could be made. He would also submit that equally the non examination of the doctor who has first seen the deceased in Chromepet Government Hospital to speak about the condition of the deceased cannot in any way shatter the prosecution version when the dying declaration is supported by the medical evidence namely, the injuries found on the body of the deceased during the post-mortem. He would also submit that the dying declaration should be given great weight and in the absence of any other material to show that the dying declaration, Ex.P-5 cannot be believed, the prosecution case must be accepted in toto. He would further submit that one more circumstance put against the accused is the preparation of the observation mahazar, Ex.P-2 in which the unburnt broken parts of the stove were found in the scene of occurrence, falsifying the case of the defence that it was an accidental burst of stove. To support the said submission, the learned Additional Public Prosecutor would rely upon the judgments of the Apex Court in P.V.Radhakrishna v. State of Karnataka (2003 SCC (Crl.) 1679) and in Sohan Lal alias Sohan Singh and others v. State of Punjab (2004 SCC (Crl.) 226). https://hcservices.ecourts.gov.in/hcservices/ 23. We have given our anxious and careful consideration to the rival submissions made on either side. We have also perused the entire materials placed before us and also gone through the judgment of the learned trial Judge. 24. So far as the challenge to the last seen theory is concerned, firstly we must keep it in mind that P.W.3 is an independent witness and he has no motive against the accused. Except a faint attempt by suggesting that he had animosity against the accused, we could see no material to come to the conclusion that there was animosity on the part of P.W.3 to falsely implicate the accused. A perusal of the entire evidence of P.W.3 would show that it is quite natural. We could also see the normal conduct of a person to attempt to save the life of another person who is dying of burn injuries. P.W.3 has categorically deposed that he saw the accused on the evening of the fateful day and he smelt kerosene odour on his clothes. He has also spoken about the attempt made by the accused to clear the odour by taking bath in a nearby tank. His evidence is also quite natural, as he has spoken that when he questioned the accused as to the smell of kerosene on his person, the accused did not respond to such question. Instead the accused had only tried to conceal the offence by taking bath to remove the odour from the clothes. Suspecting some untoward incident, P.W.3 rushed to the house of the deceased and saw her ablaze and therefore he immediately removed his lungi and tried to save the life of the deceased. Thereafter, he took the deceased to an auto-rickshaw stand and as P.W.1, the son of the deceased, also came there, he made arrangements for the deceased to be taken to the hospital. We find absolutely no reason to discard the evidence of P.W.3. His evidence cannot be disbelieved mainly on the ground that the prosecution has failed to examine the President of Meppedu village as well as the auto driver. Though the prosecution case rests only on circumstantial evidence, in the wake of the evidence of P.W.1 coupled with the evidence of P.W.3 and the fact hat the deceased was admitted in the hospital where she succumbed to injuries would go a long way to support of the case of the prosecution and in these circumstances, it is not necessary for the prosecution to examine all the persons who came across the occurrence and the subsequent events. If the case of the prosecution is viewed from that angle, we are of the considered view that mere failure to examine the President of Meppedu village and the auto driver would in any way affect the prosecution case. The evidence of P.W.3 is further attacked on the ground that his statement under S.161 Cr.P.C., has been recorded after four days. There is no controversy that the occurrence had taken place on 10.7.2004 and the statement of P.W.3 under S.161 Cr.P.C., was recorded only on 14.7.2004. Initially the case was registered only for the offence under Section 307 IPC and the same was altered only on the subsequent day after the death of the deceased. In that process, the Investigating Officer has lost two days, as he was frequently making arrangements for recording the dying declaration. Thereafter, the investigation continued and in the course of examination, delay of two days had occurred. In our view, a mere delay of two days in recording the S.161 Cr.P.C., statement by itself would not establish a falsity in the prosecution case, especially when the prosecution has heavily relied upon the dying declaration. For all these reasons, we reject the contention of the learned counsel for accused in challenging the evidence of P.W.3. https://hcservices.ecourts.gov.in/hcservices/ 25. So far as the challenge to the dying declaration is concerned, it has been repeatedly held that the dying declaration is entitled to great weight and it cannot be brushed aside unless strong grounds are made out that such a dying declaration was the result of either tutoring or prompting or a product of imagination. It has been also authoritatively held that the dying declaration can be the sole basis for conviction in the event such dying declaration inspires full confidence of the Court in its correctness. 26. In Mohan Lal's case reported in 2007 (1) MWN (Crl.) 194, the Apex Court, on a detailed analysis of the law, has held that when the dying declaration is trust-worthy and reliable, it has to be accepted. One of the basic conditions would be that before recording the dying declaration, it must be ensured that the deceased was in a fit state of mind and was conscious to give such declaration. This law is laid down by the Apex Court in the judgment in Paparambaka Rosamma and others v. State of Andhra Pradesh (1999 SCC (Crl.) 1361). 27. Much was argued as to the failure on the part of the Metropolitan Magistrate-P.W.8 in ascertaining the fitness of the deceased to give the dying declaration. We have carefully perused Ex.P- 5, the dying declaration as well as the evidence of P.W.8, the Metropolitan Magistrate who recorded the dying declaration. P.W.8 has stated that he received a requisition from C-7 Peerkankaranai Police Station at about 2.30 a.m., on 11.7.2004 to record the dying declaration of the deceased. Within 15 minutes, he reached the hospital only to find that the deceased by then had become unconscious. Therefore he did not record the declaration. This circumstance goes to show that the Magistrate had first ensured as to the fitness of the deceased to give such declaration. On seeing that the deceased was not in a fit state of mind to give such declaration, he went back and again came to the hospital at 8.30 a.m., when he received subsequent intimation and recorded the dying declaration. We find absolutely no substance