1 BAIL SLIP That the 2nd Petitioner / Appellant / Accused No.2 namely Muthulakshmi is directed to be released on bail on 24.03.2004 in Crl.MP.No.2581 of 2004 in Crl.Appeal No.322 of 2004 on the file of the High Court of Judicature at Madras. BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 16.03.2011 CORAM: THE HONOURABLE MR.JUSTICE S.RAJESWARAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Criminal Appeal (MD) No.322 of 2004 1.Venkatachalapathy @ Venkatesan 2.Muthulakshmi .. Appellants / Accused 1 & 2 vs. The State rep. by the Inspector of Police, Thirukattupalli Police Station, Tanjore District. .. Respondent / Complainant PRAYER: Appeal filed under Section 374 (2) of Cr.P.C. against the judgment of conviction and sentence dated 25.02.2004 made in S.C.No.233 of 2003 by the Additional District and Sessions Judge, Fast Track Court No.1, Tanjore. For appellants : Mr.S.Ashok Kumar, Senior Counsel for M/s.M.Karunanithi For respondent : Mr.N.Senthur Pandian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by S.RAJESWARAN, J) Challenging the judgment of the Additional District and Sessions Court, Thanjavur, dated 25.2.2004 made in S.C.No.233/2003, whereby each of the of appellant/accused was convicted and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.500/-, in default, to undergo six months rigorous imprisonment under Section 498 (A) and to undergo imprisonment for life and to pay a fine of Rs.1,000-, in default to undergo one year rigorous imprisonment under Section 320 IPC, the accused appellants have preferred this appeal. 2. The case of the prosecution is that the Accused No.1 admitted his wife Nandhini in the Tanjore Medical College Hospital with 100% https://hcservices.ecourts.gov.in/hcservices/ 2 burn injuries at 8.30 a.m., on 14.10.2002. On the intimation from the Hospital, PW.21 the Sub-Inspector of Police went to the Hospital around 1.30 p.m., on 14.10.2002 and recorded a statement Ex.P18 from the deceased Nandhini. In the said statement, the deceased had stated that she was married to A.1 seven years ago and they are having a five year old female child by name Deepika. She was residing with her husband and her brother in-law at Nakachi Village and the child was living with her sister-in-law. Her mother-in-law and her husband were harassing her on the ground that the Sreedhana property were inadequate and they demanded more dowry. On 14.10.2002, at 7.30 a.m., the accused A.1 quarrelled with the deceased for more dowry and after beating her, took her to the bathroom. There, the first accused poured kerosene and the second accused set fire to her. On hearing the sound the neighbours came and they rescued her and her husband admitted her in the Government Medical College Hospital, Tanjore. Based on his complaint, PW.21 registered a case in Crime No.270/2002 for the offences punishable under Section 498(A) and 307 IPC. A requisition was made to the learned Judicial Magistrate No.I, Tanjore. PW.12 recorded a Dying Declaration Ex.P11 from the deceased Nandhini on 14.10.2002 around 1.30 p.m.,. The deceased died in the Hospital on 14.10.2002 at about 2.30 p.m.,. Therefore, the F.I.R was altered into 498(A) and 302 IPC. 3. PW.23, the Inspector of Police, Tirukattupalli of Tirukattupalli Police Station went to the place of occurrence at 8.30 p.m., prepared an Observation Mahazar Ex.P22 at 9.30 p.m., He also prepared a Sketch Ex.P27 and recovered MOs.1 to 10 from the place of occurrence and examined the witnesses 1 to 11. He arrested the Accused Nos.1 and 2 and remanded them to judicial custody on 16.10.2002. PW.24 took up further investigation and filed the final report against the accused on 30.3.2003. 4. During the trial, 24 witnesses were examined on the side of the prosecution and a witness was examined on the side of the accused. The prosecution marked 31 documents and produced 11 Material Objects before the Trial Court. Ex.D1 series were marked on the side of the accused through DW.1. 5. We have heard the learned Senior Counsel Mr.K.Ashok Kumar appearing for the appellants and the learned Additional Public Prosecutor appearing for the State. We have also gone through the documents available on record. 6. The learned Senior Counsel would contend that the deceased was suffering from mental illness and was taking treatment regularly for the same. All the material witnesses including PW.10, the mother and PW.15 and PW.16, the brothers of the deceased have turned hostile. The Dying Declaration is not supported by any other corroborative materials. https://hcservices.ecourts.gov.in/hcservices/ 3 7. Per contra, the learned Additional Government Pleader would contend that the Dying Declaration recorded from the deceased would be more than adequate and it is cogent and sufficient to sustain the conviction of the accused. 8. All the material witnesses including the mother and the brothers of the deceased have not supported the case of the prosecution. The Dying Declaration is the only material available against the accused, which is not corroborated with any other witness. 9. As per the Dying Declaration, the accused had demanded more dowry and on that score, there was a quarrel and the deceased was beaten by the first accused and consequently, kerosene was poured on her and was set ablaze. The version of the demand of dowry from the deceased by the accused is not supported by the mother and the brothers of the deceased. The evidence of the Dr.K.Thiagharajan, DW.1 is relevant to find out the state of mind of the deceased. In his evidence, DW.1 has stated in his Chief Examination that he being a Psychatrist, has known Nandhini, wife of Venkatachalapathy as a patient and now she is no more. According to him, the deceased Nandhini on account the attack of the decease "fits", she was suffering from mental illness and at that time, he has given treatment to her. During that period, the deceased was not free with her relatives and not at all co-operative and she was always looking dazed and short tempered and had always a suicidal tendency in her. During that point of time also, DW.1 had treated her. Prescriptions given by the DW.1 to the deceased Nandhi has been marked as Ex.D1 (Series). Thus, the medicines were prescribed to relieve her mental tension and anger. 10. This evidence of DW.1, Dr.K.Thiagharajan is corroborated by PW.10, the mother of the deceased and the brothers of the deceased PW.15 and PW.16. The mother of the deceased in her cross-examination stated that Nandhini/the deceased was suffering from mental illness for a long time. Therefore, her child had to be brought up in her sister-in-law's house. From Ex.P18, it could be seen that the child of the deceased was not living with the deceased. 11. The occurrence took place at 7.30 a.m., on 14.10.2022 and DW.1 had treated her for her mental illness upto 29.8.2002. From the available evidence, it could be seen that the deceased was suffering from mental illness and was taking treatment regularly under DW.1. 12. Apart from this, there were other infirmities in the recording of the Dying Declaration which would show that the Dying Declaration would not be sufficient to fasten the liability on the accused. For instance, the deceased was admitted by the accused and the Doctor who had recorded the Accident Register was not examined. There are three different versions available from the Accident Register Ex.P18, the statement given to PW.21 and the Dying Declaration of the deceased Ex.P11. https://hcservices.ecourts.gov.in/hcservices/ 4 13. According to PW.12, he recorded the statement in between 1.15 p.m., and 2.00 p.m., on 14.10.2002. Excepting herself and the Duty Doctor, there was no other person present nor any police men were present during that time. 14. According to PW.21, she recorded the statement between 1.30 p.m., and 2.00 p.m., on 14.10.2002. At that time, excepting herself and the Duty Doctor, no one was present. 15. If the version of Ex.P12 is accepted, Ex.P18 would not have been recorded as stated by the prosecution. Similarly, if the version of PW.21 is accepted, the Dying Declaration would not have been recorded as stated by the prosecution. 16. The occurrence had taken place at 7.30 a.m., and the deceased was admitted in the Hospital at 8.30 a.m.,. PW.10, the mother of the deceased, went to the hospital at 9.00 a.m., PW.15, one of the brothers of the deceased, went to the hospital at 9.30 a.m.,. According to PW.10 and PW.15, the lips and the fingers of the deceased were burnt fully. The Doctor would also certify that the deceased had sustained 100% burn injuries. From the evidence of PW.10 and PW.15 and from the other materials it could be inferred that the deceased had not stated anything in the hospital. 17. The Dying Declaration was said to have been recorded between 1.15 p.m., and 2.00 p.m., and the incriminating portion is at the end of the Dying Declaration. According to PW.21, the pulse rate collapsed and the victim became semi-unconscious which is incorporated by the Ex.P21 Case Sheet. Further, according to the Medical Evidence, both the hands of the deceased were burnt and the deceased had sustained 100% second and third degree injuries. But, curiously, the thumb impression and the ridges are very clear which is unbelievable. The non-examination of the Doctor who recorded the Accident Register is also fatal to the prosecution. 18. In support of his submissions that the dying declarations are not to be taken as truthful documents, the learned Senior Counsel for the appellants relied on the following judgments:- 1. 2004 (1) MWN (Cr.)(DB)21 [Packiam v. State rep. by the Inspector of Police, Oomachikulam P.S., Madurai District] 2. 2004 CRI.L.J. 615 [Kamalakar Nandram Bhavsar v. State of Maharashtra] 3. 1999 SAR (Criminal) 557 [Dandu Lakshmi Reddy vs. State of A.P.] https://hcservices.ecourts.gov.in/hcservices/ 5 19. In 2004 (1) MWN CRL 21 (cited supra), a Division Bench of this Court after following the judgment of the Hon'ble Supreme Court reported in 1995 SUPP (4) SCC 118 (Kamachi Komuramma vs. State of Andhra Pradesh) held that recording a declaration by a Judicial Magistrate by itself is not a proof of truthfulness of the Dying Declaration. 20. Similarly, in 2004 CRI.L.J. 615, (cited supra) the Hon'ble Suprme Court has held as follows:- "7. So far as the genuineness of dying declaration is concerned, having perused the material on record, we are also satisfied that the said document is not a genuine document. Until PW.5, the doctor who conducted the post-mortem was examined, the defence did not, in any manner, indicate or disclose the factum of the existence of a dying declaration. No suggestion of the existence of a dying declaration. No suggestion was put to the other prosecution witness as to the existence of a dying declaration. It is very surprising that a doctor who admittedly did not treat a patient during her life time would be called upon to certify the fitness of the patient to make a dying declaration when other doctors who treated the said patient were available for the said purpose. From the evidence on record also, it is clear that the deceased was in no condition to make a dying declaration. She had almost 95% burns and she was put on oxygen right from the moment she was brought to the hospital and continued to be on oxygen till she died. In such circumstances, it is difficult to believe that she could have made a dying declaration when she was not even capable of breathing by herself. The evidence on record shows that she died within about half an hour after making the alleged dying declaration. All these circumstances leads to one and the only conclusion that this dying declaration is not a genuine document and the High Court was justified in rejecting the same on that basis." 21. In 1999 SARC CRL 557 (cited supra), the Hon'ble Supreme Court has held that mental soundness of the deceased is a factor to be considered and a Criminal Court cannot ignore the evidence of the parents of the deceased. It is further held that if there is a slight doubt about the mental soundness of the deceased, then, it would be unsafe to base a conviction on such declaration. 22. The learned Senior Counsel thus contended that the dying declaration does not inspire the confidence of this Court and therefore, the appeal is to be allowed. https://hcservices.ecourts.gov.in/hcservices/ 6 23. In the light of the above and with particular reference to the evidence of PW.10 and PW.15 and the other materials, it could be seen that the offences against the accused have not been established beyond reasonable doubt. 24. From the evidence available on record and the exhibits marked, we could find that the dying declarations are not to be taken as truthful documents and they do not inspire the confidence of the Court. Therefore, the same cannot be trusted for convicting a person. 25. Hence, on the ground of dying declaration does not inspire the confidence of this Court, the Appeal is allowed, the judgment of the trial Court is set aside and the appellants are acquitted of the charges levelled against them. It is represented that the appellants are on bail. The bail bonds executed by them shall stand terminated. Fine amount, if any, paid by the appellants are directed to be refunded. Sd/ Assistant Registrar(CO) /True Copy/ Sub Assistant Registrar TO 1. THE JUDICIAL MAGISTRATE NO.I, THANJAVUR 2. -DO-THRO' THE CHIEF JUDICIAL MAGISTRATE THANJAVUR AT KUMBAKONAM (FOR INFORMATION) 3. THE ADDITIONAL SESSIONS JUDGE FAST TRACK COURT NO.1, THANJAVUR 4. THE PRINCIPAL SESSIONS JUDGE THANJAVUR AT KUMBAKONAM (FOR INFORMATION) 5. THE SUPERINTENDENT, CENTRAL PRISON, TRICHY 6. THE DISTRICT COLLECTOR, THANJAVUR DISTRICT 7. THE DIRECTOR GENERAL OF POLICE, MYLAPORE, CHENNAI 04 8. THE INSPECTOR OF POLICE THIRUKATTUPALLI POLICE STATION, TANJORE DISTRICT 9. THE ADDITIONAL PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI COPY TO: THE SECTION OFFICER, CRL.SECTION, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI Crl.Appeal(MD)No.322 of 2004 16.03.2011 (asvm)SMA/30.05.2011/11C/6P https://hcservices.ecourts.gov.in/hcservices/