IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.01.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal No.285 of 2007 Nagendran S/o Chinnan @ Chinnaya .. Appellant/Accused -vs- State rep.by Inspector of Police Peranampet Police Station Peranampet Gudiyatham Taluk (Crime No.1365/99) .. Respondent/Respondent Vellore District. Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgment dated 23.9.2003 made in S.C.No.58 of 2001 on the file of the learned Additional District and Sessions Judge (Fast Track Court), Vellore. For Appellant :: Mr.A.S.Chakravarthy For Respondent :: Mr.P.Kumaresan Addl. Public Prosecutor JUDGMENT (Judgment of the Court was delivered by D.MURUGESAN, J.) The appellant is the sole accused, who stands convicted for the offence under Section 302 IPC and sentenced to undergo imprisonment for life and also to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for six months by the judgment dated 23.9.2003 passed by the learned Additional District and Sessions Judge, Vellore made in S.C.No.58 of 2001. 2. The appeal arises under the following circumstances:- The prosecution charge sheeted the appellant/accused for commission of the offence of murder of one Latha, the sister of P.W.1, aged about 15 years, by pouring kerosene and setting her ablaze. The accused was assisting one Lakshmanan-P.W.2, who is https://hcservices.ecourts.gov.in/hcservices/ the husband of P.W.1, in his electrical works. Therefore, he used to visit the house of P.Ws.1 & 2 frequently and used to freely move with the family members. Taking advantage of the above, he closely moved with the deceased. On the day of occurrence i.e., on 30.12.99, at about 3.00 p.m., when the deceased was alone in the house of P.W.1, the accused came there and started to misbehave with the deceased, to which the deceased objected. Thereafter, the deceased pushed the accused outside the house. In the meantime, the accused took a kerosene can and, after leaving the house, poured the same through the window on the deceased, who had locked the doors from inside, and set her ablaze. P.W.1, who had gone to fetch water along with the deceased just prior to the occurrence, sent the deceased to the house, as there might be delay in fetching water, and after sometime, she returned and found the accused running away from the place. While she shouted, P.W.15 came to the place of occurrence and, after breaking the doors, brought the deceased outside the house and saw the serious burn injuries on her. He also made attempts to save her life by covering the body with a gunny bag. Thereafter, P.W.1 took the deceased in a van to Pernampet Government Hospital and thereafter to Gudiyatham Government Hospital and lastly to Vellore Government Hospital, where she succumbed to the burn injuries at 10.00 p.m., on the same day. 3. On receipt of intimation from the Vellore Government Hospital, P.W.16, the then Inspector of Police attached to Pernampet Police Station, went to the hospital and recorded the complaint, Ex.P-1 from P.W.1 at about 12.30 a.m., on 31.12.99. He came to the police station at 3.00 a.m., and registered a case in Cr.No.1365 of 1999 for the offence under Section 302 IPC. The First Information Report is Ex.P-15. He forwarded the express reports to the Court as well as to the higher police officials. He proceeded to the Vellore Government Hospital at 9.30 a.m., on 31.12.99 and conducted inquest on the body of the deceased in the presence of panchayatdars and witnesses and recorded their statements. The inquest report is Ex.P-16. Thereafter, he sent a requisition through the Head Constable 1877 to the duty doctor for conducting post-mortem on the body of the deceased. 4. P.W.12, Senior Assistant Surgeon deputed to Vellore Government Hospital, commenced post-mortem on the body of the deceased at 3.30 p.m., on 31.12.99 and she noted the following external injuries:- "There are extensive II degree burns present on the face, neck, front of thorax, front of both arms, palms, abdomen, pubic area, front of both thighs, legs (L) foot, on the back of neck, back of both arms, palms, whole of back, genital regions, back of thighs, legs and (L) foot, (R) foot alone is spared and in most of the places skin is peeled off. The scalp hair is burnt and crinkled, eyes are closed, mouth closed https://hcservices.ecourts.gov.in/hcservices/ and tongue inside jaws clenched. Rigor mortis present in all four limbs." She issued the post-mortem certificate, Ex.P-12 with her final opinion that the death was due to hyporolemic shock due to extensive 100% II degree burns and the deceased would appear to have died 16 to 20 hours prior to post-mortem. 5. P.W.16, continuing with his investigation, went to the scene of occurrence and prepared the Observation Mahazar, Ex.P- 2 and also drew rough sketch, Ex.P-17 in the presence of witnesses. He examined the other witnesses and recorded their statements. He examined the doctors, P.Ws.10 & 11 and the Judicial Magistrate, Gudiyatham-P.W.9 on 1.1.2000 and recorded their statements. On receiving information as to the whereabouts of the accused on 4.1.2000, he went to Kothamarikuppam village at about 8.00 a.m., and arrested the accused in the presence of P.Ws.7 & 8. In pursuance of the admissible portion of the confession of the accused under Ex.P- 18, he recovered the 5 litres plastic kerosene can, M.O.1 in the presence of the same witnesses under the mahazar, Ex.P-19. He brought the accused and the seized material object to the Pernampet police station at 12.00 noon and remanded him to judicial custody. He examined P.W.1 and recorded her statement. He examined the post-mortem doctor and recorded her statement. He thereafter transferred the investigation to P.W.17. 6. P.W.17, the successor Investigating Officer, scrutinised the files and the investigation carried out by his predecessor and after getting legal opinion, laid the charge sheet against the accused for the offence under Section 302 IPC before the Court. 7. To bring home the charges against the accused, the prosecution examined 17 witnesses, marked 24 exhibits and produced 1 material object. 8. When the accused was questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against him, he denied them 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 above. 9. Learned counsel for the appellant/accused has questioned the veracity of the judgment mainly on the following grounds: (i) The dying declaration, Ex.P-8 recorded by the Judicial Magistrate, Gudiyatham-P.W.9 cannot be relied upon, as there was sufficient time in between for tutoring the deceased by P.W.1, who happened to accompany the deceased right from the place of occurrence till the dying declaration was recorded. https://hcservices.ecourts.gov.in/hcservices/ (ii) There is enormous delay in sending the First Information Report to the Court. When the complaint, Ex.P-1 was registered at 12.30 a.m., on 31.12.99, it reached the Court only on 2.1.2000 and there is no explanation for the delay. Such delay assumes importance in this case, as the prosecution has heavily relied upon the dying declaration, Ex.P-8, which is tutored. 10. So far as the first contention relating to the challenge to the dying declaration is concerned, the learned counsel would elaborately refer to the deposition of P.Ws.9,10 & 11 and the Exs.P-8, P-10 & P-11. He would also submit that Ex.P-13 is the intimation to the doctor, P.W.12 for conducting post-mortem. Conspicuously, the name of the accused is missing. He would submit that P.W.1, who is none other than the sister of the deceased, has tutored the deceased to falsely implicate the accused, as her husband, P.W.2, was seen in a compromising position with the deceased just before the time of occurrence, as the accused and the deceased were in love, and when the said compromising position was seen by the accused, he uttered that instead of marrying the deceased, better he can die, and only in view of the above, the deceased had committed suicide. Therefore, P.W.1 wanted to save her husband, P.W.2, as he was the cause for the deceased to commit suicide. The learned counsel would further submit that though the prosecution has relied upon the dying declaration, as the accused had no opportunity to cross examine such dying declaration, it should be looked cautiously and if the suggestions put forth on behalf of the accused coupled with the fact as to the possibility of the deceased being tutored by P.W.1 are taken into consideration, the dying declaration loses its credit and if the dying declaration is disbelieved, there is no other evidence to prove the guilt of the accused. 11. On the other hand, Mr.P.Kumaresan, learned Additional Public Prosecutor would submit that the deceased had informed P.W.1 only in the hospital implicating the accused for pouring kerosene on her when she resisted the attempt of molestation made by the accused. The accident register, Ex.P-9 also contains the information said to have been given by the deceased to the doctor implicating the accused. There is absolutely no time for P.W.1 to tutor the deceased, as, admittedly, she was taken with severe burn injuries and she started talking only when she was attended by the doctor at Pernampet Government Hospital at 5.00 p.m., on 30.12.99. Thereafter, a statement was recorded by P.W.10, another doctor between 5.00 p.m., and 5.15 p.m., under Ex.P-10, which also specifically indicates the implication of the accused by the deceased. Further, the accident register, Ex.P-11 prepared at 6.50 p.m., at Gudiyatham Government Hospital also contains the same version of the deceased as deposed by P.W.11. Lastly, the learned Additional Public Prosecutor would submit that the dying declaration, Ex.P-8 recorded by the Judicial Magistrate, Gudiyatham, P.W.9 between 7.12 p.m., and 7.45 p.m., on 30.12.99 https://hcservices.ecourts.gov.in/hcservices/ also implicates the accused. Thereafter, the complaint, Ex.P-1 was given at 12.30 a.m., on 31.12.99 mentioning specifically the name of the accused for the commission of the offence and the said First Information Report reached the Court at 9.30 a.m., on the same day. The learned Additional Public Prosecutor therefore submitted that there is absolutely no ground to disbelieve the dying declaration given by the deceased not only to the doctors, P.Ws.10 & 11, but also to the Judicial Magistrate, P.W.9. So far as the contention as to the delay in the First Information Report is concerned, the learned Additional Public Prosecutor, by drawing our attention to the records, submitted that the First Information Report reached the Judicial Magistrate, Gudiyatham at 9.30 a.m., on 31.12.99 itself and not on 2.1.2000 as contended by the learned counsel for the appellant. The learned Additional Public Prosecutor would also submit that P.W.7, the Village President, though turned hostile, has deposed that the accused presented himself before him on the night of 30.12.99 and gave a confessional statement implicating himself in the offence. In addition to the above, P.W.8, who was also present at the time when the accused appeared before P.W.7, has stated that the accused gave a confession to P.W.7 and thereafter the accused was produced to the police at 8.00 a.m., on the next day. Hence the learned Additional Public Prosecutor submitted that the prosecution has established its case beyond reasonable doubt and the judgment of the learned trial Judge requires no interference. 12. We have considered the rival submissions with great care and caution. So far as the second contention as to the delay in the First Information Report reaching the Court is concerned, it is seen from the records that the complaint was registered at 12.30 a.m., on 31.12.99 and the same reached the Court at 9.30 a.m., on the same day. Hence the contention of the learned counsel for appellant that the First Information Report reached the Court only on 2.1.2000 is incorrect and therefore cannot be accepted. Accordingly, the said contention is rejected. 13. So far as the challenge to the dying declaration is concerned, the learned counsel vehemently relied upon the suggestions put forth to P.Ws.1, 2 & 3 that when the accused, who developed love with the deceased, saw both P.W.2, the husband of P.W.1, and the deceased in a compromising position, he left the place after uttering that he will die instead of marrying the deceased in view of her conduct. Once the deceased came to know that the relationship with P.W.2 has come to be known to the accused, she felt shy and therefore she committed suicide. The cause for her suicide is P.W.2 and therefore P.W.1, in all probability, wanted to save her husband from the allegations and therefore she has tutored the deceased to falsely implicate the accused. The suggestion, in our considered view, appears to be highly reasonable and serious in nature. https://hcservices.ecourts.gov.in/hcservices/ 14. As it suggests the false implication of the accused only to allow P.W.2 to escape from the clutches of law, we, therefore, propose to consider the same at length. Of course, P.W.1 and P.W.2 are the wife and husband. A mere suggestion cannot be proved and such suggestion should be considered with reference to the evidence in its entirety. It is the case of P.W.1 that both herself and the deceased had gone to fetch water and, as there was delay in fetching the water, she told the deceased to go to the house. After sometime, when P.W.1 came to the house, she heard the shouting from the house and therefore, she also shouted. On hearing the noise, P.W.15 came to the scene of occurrence. P.W.15 is an independent witness. He broke opened the doors and saw the deceased ablaze and thereafter he brought the deceased outside the house and made attempts to save her life. When P.W.15 was making attempts to break open the doors to save the life of the deceased, P.W.1 saw the accused running away from the scene of occurrence. It is argued by the learned counsel for appellant that when P.W.15 was present as spoken to by the prosecution, in all probability, he could have spoken about the running of the accused from the scene of occurrence and strangely, he has not mentioned anything about the accused. Hence the version of P.W.1 for having seen the accused running from the scene of occurrence is only to falsely implicate him. In our opinion, the said contention cannot be accepted, as, admittedly, P.W.15 broke opened the doors and attempted to save the life of the deceased and he could not have concentrated on the persons present there or the accused running away from the scene place. In fact his evidence is quite natural in not specifically naming the accused for having seen him in the scene of occurrence. 15. The next circumstance is that when the deceased was taken to the hospital, P.W.1 has specifically stated that the deceased has not whispered anything as she was not in good condition at that time and she spoke only in the hospital. Of course, for the first time, the deceased has spoken about the accused pouring kerosene and setting her ablaze to P.W.1 in the hospital. The deceased has stated the same to P.W.10, the doctor who recorded the statement, Ex.P-10 between 5.00 p.m., and 5.15 p.m., on 30.12.99 and she has implicated the accused in Ex.P-10. Even in the accident register, Ex.P-9 prepared at 5.00 p.m., on 30.12.99, it has been mentioned that the deceased informed the doctor that the accused poured kerosene and set her ablaze in the house. We have no reason to discard Exs.P-9 & P-10 as well as the evidence of P.W.10, who recorded Ex.P-10. P.W.10 has specifically deposed before the Court that she has recorded the statement of the deceased after ascertaining her state of mind and the fitness to give such a statement. No suggestion was put to the doctor during cross examination as to the possibility of any tutoring of the deceased at the instance of P.W.1. This goes against the submission of the learned counsel for appellant. The further circumstance is that when the deceased was advised to be taken to Gudiyatham Government https://hcservices.ecourts.gov.in/hcservices/ Hospital, the doctor, P.W.11 prepared the accident register, Ex.P-11 at 6.50 p.m., on 30.12.99, wherein also it has been recorded that the deceased has informed the doctor about the accused pouring kerosene and setting her on fire. Equally no suggestion was also put to P.W.11 during cross examination as to any possibility of tutoring of the deceased by P.W.1. In the absence of any questions put to the witnesses as to the possibility of tutoring the deceased by P.W.1, in our view, the appellant cannot be permitted to take such a stand in the appeal. 16. The next circumstance is the dying declaration, Ex.P- 8 recorded by P.W.9, the Judicial Magistrate, Gudiyatham between 7.12 p.m., and 7.45 p.m., on 30.12.99. We have perused the dying declaration with great caution. The Magistrate has ensured as to the condition and fitness of the deceased to give such a statement before and after the dying declaration was recorded. The fact that the deceased was in fit state of mind to give the dying declaration was also certified by P.W.11. For better appreciation of the dying declaration, Ex.P-8 recorded by P.W.9, we reproduce the same as under:- "bgah; nf/yjh mg;gh bgah; gp/nf/fpUc&;zd; ml;u!; gy;yhyFg;gk; yjh taJ 14. 8tJ tFg;g[ muR cah;epiyg;gs;sp. vd;gthpd; kuz thf;FK:yk;/ ,d;W rha';fhyk; 19/05 Foahj;jk; muR bghJ kUj;JtkidapypUe;J jfty; fpilj;jJ/ kUj;Jtkidf;F 19/12 brd;nwd;/ thu;oy; mDkjpf;fg;gl;oUe;j nehahspia kUj;Jth; milahsk; fhl;odhu; nehahsp Raepidt[lDk; thf;FK:yk; bfhLf;f Toa kdepiyapYk; ,Ug;gjhf kUj;Jth; rhd;wspj;jhh;/ thf;FK:yk; Muk;gpj;j neuk; 19/13 c';f bgah; vd;d> yjh taJ vd;d> ve;j standard gof;fpwha;> taJ 15 8th standard ehd; te;J xU kh$p!;nul; k; thf;FK:yk; jhp';fsh> vd;dJ. k;. k; ,e;j jPf;fhak; vg;go Vw;gl;Lr;R> v';f mf;fh jz;zPf;F bjUKid nghndhk; mJt[k; vd;Tl te;jJ m";rht[ eilapy; jz;zP epd;Wr;R/ ehd; xU jpz;izapy; cl;fhu;e;njd; mf;fh rhg;gpwJf;F vd;id mDg;gpr;R mg;g[wk; ehd; tPl;Lf;Fnghap fjt[jpwe;J nrhW nghl;Ll;L $d;dyhz;l nghndd;/ ehnfe;jpud; te;jhd; te;J vd; khh;g[ Jzpia gpor;R ,Gj;jhd; mg;g[wk; vd;d https://hcservices.ecourts.gov.in/hcservices/ ele;jJ> ehd; ePf;fp js;spl;nld; jhH;ghs; nghl;Lfpndd; gpwF> mtd; $d;diy bjhwe;jhd; ehnfe;jpud; ahU> rhuhak; tpf;fwtd; mg;g[wk; vd;dk;kh ele;jpr;R> fpUc&;zhapy; $d;dy; tHpa Cj;jpdhd; gj;j btr;rpl;lhd; ahh; bfhz;L te;J M!;gj;jphpapy; nrh;j;jh> Rrpyh vd; mf;fh ehnfe;jpud; ,Jf;F Ke;jp bjhpa[kh> vd; tPl;Lf;F beiwa tUthd; ehnfe;jpud; vd;id bfLj;jhd; 29/10/99 ,e;j jPf;fhak; rk;gtk; vj;jid kzpf;F ele;Jr;R> njhuhakh 3/30 kzpf;F Ch; vJkh> gy;yhyFg;gk; ele;jJ mnj Cu;ny nehahspapd; clk;gpy; jPf;fha';fs; nehahsp brhy;y brhy;y vd;dhy; vGjg;gl;L nehahspf;F goj;Jf;fhl;o rhpbad bjhptpj;J ,lJ if bgUtpuy; nuif ,l;lhh;/ fPuy;- ? thf;FK:yk; Koe;j neuk; 19/24 xk;- ? 30/12/99, Time 19.10 to 19.25 The patient conscious and fit to give dying declaration. The dying declaration is recorded in my presence and to my hearing while recording the dying declaration neither the police nor the relation were present. Sd/- (Dr.S.Amuthamani) rhd;Wfs;/? 1) nehahsp Raepidt[lDk; thf;FK:yk; bfhLf;Fk; kdepiyapy; ,Ue;jhh;/ 2) mt;thnw kUj;JtUk; rhd;wspj;Js;shh;/ 3) thf;FK:yk; kUj;Jth; Kd;dpiyapy; mtUf;F nfl;FkhW gjpt[ bra;ag;gl;lJ/ 4) thf;FK:yk; gjpt[ bra;jbghGJ nehahspapd; cwtpdnuh nghyPrhnuh mUfpy; ,y;iy/ 5) nehahsp jk;kpr;irahf thf;FK:yk; je;jhh;/ 19/35f;F rhg;gpl;L jpUk;g miHj;J ehd; office https://hcservices.ecourts.gov.in/hcservices/ sealf;fhf btapl; gz;zpapUe;njd;/ gr;irf;Fg;gj;J fPnH fhzhW(>) ehnfe;jpud; , l;Lf;fpl;L nghdhd; ehd; mGJfpl;nl nghndd;/ me;j gf;fk; ehy";R ngh; $%!; For;rpfpl;L ,Ue;jh';f mt';f mf;fh khkh fpl;l brhd;ndd;/ bfLj;Jl;lhd; mg;g tPl;Ly ahu;fpl;la[k ; brhy;yypah> ,y;y ehnfe;jpud; ahh;fpl;la[k ; brhy;y ntzhKD brhd;dhd; brhd;dh eP J}f;F fapW jhd; epf;fDk; brhd;dhd;/ Koe;j neuk; 19/45 fPuy;- ? Nehahsp brhy;y brhy;y vd;dhy; vGjg;gl;L nehahspf;F goj;Jf;fhl;l rupbad ,lJ if bgUtpuy; nuifapl;lhh;/ xk;- ? 30.12.99, Time 19.35 to 19.45 The patient is conscious and fit to give dying declaration. The dying declaration is recorded in my presence and to my hearing while recording the dying declaration neither the police nor the relation were present. Sd/- (Dr.S.Amuthamani) rhd;Wfs;/ 1) nehahsp Raepidt[lDk;. thf;FK:yk; bfhLf;Fk; kdepiyapy; ,Ue;jhh;/ 2) mt;thnw kUj;JtUk; rhd;wspj;Js;shh;/ 3) thf;FK:yk; kUj;Jth; Kd;dpiyapy; mtUf;F nfl;FkhW gjpt[ bra;ag;gl;lJ/ 4) thf;FK:yk; gjpt[ bra;jbghGJ nehahspapd; cwtpdnuh. NghyPrhnuh mUfpy; ,y;iy/ 5) nehahsp jk;kpr;irahf thf;FK:yk; bfhLj;jhh;/ xk;- ? This patient Latha was referred for G/H Pernambut on 30.12.99 at 6.50 pm. Sd/- 17. From the above sequence of evidence, we have no reason whatsoever to hold that the deceased was tutored by P.W.1. Of course, P.W.1 was present right from the time the deceased was taken to the hospital till the dying declaration was recorded by P.W.9. Learned counsel for the appellant has relied upon the judgment of the Apex Court in Rasheed Beg v. State of Madhya Pradesh (AIR 1974 SC 332) and submitted that when there is a possibility of the deceased being tutored to name the accused, the dying declaration cannot be believed. https://hcservices.ecourts.gov.in/hcservices/ 18. We have carefully considered the said submission. The Apex Court has not held that even if there is a possibility of tutoring, the dying declaration should be disbelieved. The Apex Court has only cautioned that in that circumstance, to believe the dying declaration, the Court must see the availability of corroborative materials. From the judgment, we could see that the Apex Court has in fact laid down the law that even when there is a possibility of tutoring the deceased, such dying declaration can be believed in the event there are sufficient corroborative materials. As we have elaborately narrated the sequence of events right from the time when the deceased was taken to the hospital and till the dying declaration, Ex.P-8 was recorded by P.W.9, we find enough corroborative materials to show that the dying declaration could be believed and it was not given at the instance of P.W.1 by way of tutoring. We are forced to arrive at the said conclusion for yet another reason namely, that there is absolutely no suggestion put forth either to the doctors who have prepared the accident registers namely, Exs.P-9 and P-11 or the statement, Ex.P-10 recorded by P.W.10 or the Judicial Magistrate, P.W.9 who recorded the dying declaration, Ex.P-8 during cross examination. In the absence of such stand taken by the appellant before the trial Court, it will not lie in the mouth of the appellant to canvass the said point for the first time before this Court and if this Court entertains such a plea, it would result in failure to give any opportunity to the witnesses to rebut such suggestions. Learned counsel for the appellant also relied upon yet another judgment of this Court in Rajendran and another v. State represented by Inspector of Police, Vrinchipuram Police Station, Vellore District (2003) M.L.J.(Crl.) 1037 as to the possibility of tutoring the deceased when her dying declaration was recorded in the presence of the relatives. That case also can be distinguished having regard to the facts of the present case. In that case, initially the deceased had stated to the doctor who saw the deceased for the first time that she sustained burn injuries accidentally while she was cooking food in the kitchen. Strangely, she changed her mind and gave a dying declaration before the Judicial Magistrate implicating A-1 and A-2, who happened to be her husband and mother-in-law respectively. In that context, this Court had come to the conclusion that the relatives were present in between the period along with the deceased and hence there was a possibility of tutoring the deceased. However, on the facts of this case, right from the first accident register, Ex.P-9 which was recorded at 5.00 p.m., on 30.12.99 till the dying declaration Ex.P-8 was recorded by P.W.9 between 7.12 p.m., and 7.45 p.m., on the same day, the deceased had been consistent in implicating the accused for the commission of the offence. Hence the judgments relied upon by the learned counsel for the appellant are of no assistance to the facts of the present case. 19. Further, even on facts, P.W.1 has specifically stated that for the first time the deceased had opened her mouth and https://hcservices.ecourts.gov.in/hcservices/ deposed only in the hospital. Immediately at that time, the doctor, P.W.10 who prepared the accident register, Ex.P-9 at 5.00 p.m., came there and prepared the accident register. Therefore, in our opinion, there was no occasion for P.W.1 to tutor the deceased within that short period when the deceased was taken to the hospital and was seen by the doctor firstly. Unless we have