IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 18.03.2010 Coram THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE C.S. KARNAN Crl.A.No.810 of 2009 Thangaraj ..Appellant/Accused ..Vs.. Inspector of Police, Omalur Police Station, Salem District. ..Respondent/Complainant (Crime No.819/02) Appeal filed against the judgment dated 6.12.2004 passed by the learned Principal Sessions Judge, Salem in S.C. No.209 of 2003. For Appellant : Mr. A. Ilangovan For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 6.12.2004 passed by the learned Principal Sessions Judge, Salem in S.C. No.209 of 2003, whereby the sole accused stood charged, tried and found guilty of murder under Section 302 of the Indian Penal Code and sentenced to undergo Life Imprisonment and to pay a fine of Rs.1,000/- in default to undergo Rigorous Imprisonment for six months . 2. The short facts necessary for the disposal of the case can be stated thus: (i) P.W.1 is the mother of the deceased. She was residing at Kamalapuram Kattuvalavu. She has got two daughters and one son, out of whom Vijaya is the first daughter. She was given marriage to the accused and she had a male child, aged about 1 1/2 years. At the time of occurrence, she was pregnant by eight months. After the birth of the child, the deceased and the accused used to quarrel with https://hcservices.ecourts.gov.in/hcservices/ each other frequently. Be anger with that dispute, the deceased came to the maternal home and she was staying with her mother/P.W.1. (ii) Two days prior to the occurrence, the accused came to the house of P.W.1 in a pleasant mood and spending time with her. On the date of occurrence i.e. 6.5.2002, when P.W.1 and others were outside, P.W.1 got information that the deceased and the accused consumed poison and immediately, she rushed to her house and found both were unconscious and both were taken to the Hospital and they were treated by P.W.6 Doctor Kalaiselvi and the Accident Registers are marked as Ex.P6 and 7. (iii) P.W.1 gave complaint Ex.P1 before Omalur police station. P.W.9 Revenue Divisional Officer enquired her. P.Ws.1 and 3 gave statement before Revenue Divisional Officer and the same is marked as Ex.P2. After receiving death intimation on 8.5.2002, P.W.11 Sub Inspector of Police, on the strength of the complaint Ex.P1, registered a case in Crime No.819 of 2002 under Section 174 of the Criminal Procedure Code. He sent the printed First Information Report Ex.P2 to the Court. (iv) P.W.12 Inspector of Police, who took up investigation, proceeded to the spot, made an inspection and prepared observation mahazar Ex.P21. Pending investigation, an intimation was given to the Judicial Magistrate P.W.2. She immediately proceeded to the spot and recorded dying declaration at 2.30 p.m. on the next day i.e. 7.5.2002. It was also certified that the deceased was conscious oriented by the Doctor, who was present there. The Dying Declaration was marked as Ex.P4. Despite treatment, she died on the next day. (v) An intimation was given to the Revenue Divisional Officer, who came over there, examined the witnesses and conducted inquest on the dead body. The inquest report is marked as Ex.P17. Subsequently, P.W.13 took up investigation. He came to know that there was a dying declaration. On perusal of the same, the case was converted to one under Section 302 of the Indian Penal Code. Amended First Information Report Ex.P22 was despatched to the Court. (vi) The accused was arrested on 9.10.2002. He voluntarily came forward to give the confession statement and the same was recorded in the presence of witnesses. The admissible portion of the same is marked as Ex.P18. Thereafter, the accused was sent for judicial remand. He also took the investigators to Komalapuram and handed over insecticide box written as "Monocrotophos" Further, it was actually recovered under cover of mahazar Ex.P19. M.O.1 was sent for chemical analysis and the report is marked as Ex.P15. (vii) P.W.7 Dr. Vallinayagam, as per the requisition Ex.P9 of the Revenue Divisional Officer, conducted post-mortem on the dead body and issued Ex.P10 post-mortem Certificate and final report https://hcservices.ecourts.gov.in/hcservices/ Ex.P12, where he has opined that deceased would have died of the effect of poison. P.W.13 examined the witnesses and recorded their statements. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 13 witnesses and relied on 22 documents and also relied on M.O.1. On completion of examination of witnesses on the side of the prosecution, when the accused was questioned under Section 313 of the Criminal Procedure Code, he denied them as false. No witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found the accused guilty under Section 302 of the Indian Penal Code and awarded the punishment as referred to above. Hence this appeal is filed at the instance of the appellant. 5. Advancing arguments on behalf of the appellant, learned counsel would submit that in the instant case, the prosecution has miserably failed to prove the charge levelled against the accused. P.W.1 is the mother of the deceased. According to the evidence of P.W.1 and also Ex.P1 report, it would be quite clear that both the deceased and the accused consumed poison. Once the consumption of poison is the self act of the deceased, the accused was not found responsible for the same. P.W.9 Revenue Divisional Officer also conducted enquiry and stated that both of them consumed poison. 6. On the complaint given by P.W.1, the case was registered under Section 174 Cr.P.C. only for a suspicious death. At that juncture, P.W.13 has taken up the investigation and thereafter, the case was altered to one under Section 302 of the Indian Penal Code. Pointing to the evidence adduced by P.W.2 Judicial Magistrate and also commenting up Ex.P4 dying declaration, learned counsel would submit that dying declaration though recorded by the Judicial Magistrate P.W.2 on 7.5.2002 at 2.30 p.m., it reached the concerned Judicial Magistrate Court after a period of 24 days. The delay was never explained by the prosecution. If the dying declaration was actually recorded by the Judicial Magistrate, there is no impediment for the prosecution to produce the same before the Court immediately. Hence, it casts a doubt on Ex.P4 document. 7. Learned counsel added further that the occurrence had taken place at 11.30 a.m. on 6.5.2002. Both the accused and the deceased were taken to the Hospital. She resumed conscious, but she did not inform anybody that her husband only administered poison. But on 7.5.2002 when the Judicial Magistrate recorded the statement, she came forward to give false version, which could have been only by way of tutoured in the interval of 24 hours. The Doctor, who has https://hcservices.ecourts.gov.in/hcservices/ actually certified that she was conscious, was not examined before the Court. Under such circumstances, Ex.P4 dying declaration should not have the beneficiary value. This is the only piece of evidence relied on by the prosecution and accepted by the Trial Court. Except this, the prosecution has no evidence to offer. Hence the Trial Court should have acquitted the accused, but has taken an erroneous view in finding the accused guilty. Hence, learned counsel prayed for acquittal of the accused in the hands of the Court. 8. This Court heard the learned Additional Public Prosecutor on the above contentions. 9. This Court paid its anxious considerations on the above contentions. It is not in controversy that one Vijaya, daughter of P.W.1, following the incident that was taken place on 6.5.2002 at 11.30 a.m., was taken to the Government Hospital. Despite treatment, she died on the next day. P.W.7 Dr. Vallinayagam, who conducted post-mortem on the dead body, has categorically opined that the deceased died of the effect of poison. This was never disputed by the appellant before the Trial Court. Hence, the Trial Court is perfectly correct in recording the same. 10. In order to substantiate the case of the prosecution that it was the accused, who administered poison at about 11.30 a.m. on 6.5.2002 in the residence of P.W.1, the prosecution had no direct evidence. At the time of occurrence, except the accused/appellant and his wife deceased, no one was present. According to the prosecution, the appellant administered poison, as a direct consequence, she died. On the contrary, the defence plea before the Trial Court and equally here also is that the deceased took poison along with her husband and it was the self act of the deceased and hence, the accused should not be responsible for that act. 11. The point that arises for consideration is whether the poison was taken by her or it was administered by the accused. In the instant case, no witness has seen the occurrence. Under the circumstances, the only material available in the hands of the prosecution before the Trial Court is Ex.P4 dying declaration recorded by P.W.2 Judicial Magistrate. According to P.W.2 Judicial Magistrate, on receipt of intimation, she went to the Hospital and examined her and put questions to her to know about her consciousness and confirmed that she was in a conscious state. Thereafter, she recorded the statement of the deceased in the presence of duty Doctor, who also certified that she was conscious, while giving statement. A perusal of Ex.P4 would clearly indicate that there was a demand of jewel and the accused further uttered the words "if you are alive, you will ask the jewel". She refused to take coffee, since it was mixed with poison. But he compelled her and poured it in her mouth and thereafter, he came out and shouted that he and his https://hcservices.ecourts.gov.in/hcservices/ wife consumed poison. The reason for the act of the accused is to show that the poison was consumed by his wife on her own. 12. Insofar as the the criticism levelled by the learned counsel for the appellant in respect of Ex.P4 document is concerned, the Court is of the considered opinion that it cannot be given any weight at all. It was a declaration made by the deceased when she was conscious oriented and the same was certified by a medical person. The dying declaration was recorded by the Judicial Magistrate and she was examined as P.W.2 before the Court. Despite cross examination, her evidence remained unshaken. 13. The contention put forth by the learned counsel for the appellant is that there was a delay of 24 days in dying declaration reached the concerned Judicial Magistrate Court, for which, at the time of cross-examination, Judicial Magistrate P.W.2 has stated that it was recorded at the time and place mentioned in the declaration and the same was handed over to the office immediately, but it reached the concerned Court after 24 days. It clearly indicates that it was not the delay caused by the Judicial Magistrate, but it was the delay caused by the office, by which, the contention of the appellant that dying declaration recorded by the Judicial Magistrate cannot be proved, is discarded. 14. Further, learned counsel would further add that at the time when P.W.9 Revenue Divisional Officer conducted the inquest on 9.5.2002, the dying declaration was very well recorded, but the same was not produced till the investigation was taken up by P.W.13 Inspector of Police. The case continued to remain under Section 174 of the Criminal Procedure Code and it was not actually altered into section 302 of the Indian Penal Code. P.W.13 Inspector, after taking up the investigation, came to know that the dying declaration was very much available in Court. Thereafter, he altered the case. Therefore, no flaw or infirmity is committed by the Investigator. So long as Ex.P4 is an acceptable document in the eye of law, the evidentiary value attached to it cannot be suspected. In a given case like this, the dying declaration alone forms the basis for sustaining the conviction. 15. In the dying declaration itself, the reason is stated to be that the deceased was demanding for return of her jewels. Therefore, the accused uttered the words only if you are alive, you will demand for jewels. Hence the course open to him was to put an end to the life of the deceased. This Court is unable to see any reason to cast a doubt on Ex.P4 dying declaration given by the deceased and recorded by P.W.2 Judicial Magistrate. Apart from that, at the time of occurrence, she was pregnant by eight months. 16. In the circumstances, it would be suffice to sustain the conviction for the heinous crime of committing murder of his https://hcservices.ecourts.gov.in/hcservices/ wife, who was a pregnant lady. The Trial Court is perfectly correct in finding the accused guilty of murder under Section 302 of the Indian Penal code and awarding life imprisonment. The Court is unable to see any reason either factually or legally to set aside the conviction passed by the Trial Court. The criminal appeal fails and the same is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssa. To 1. The Judicial Magistrate, Omalur. 2. The Chief Judicial Magistrate Salem. 3. The Principal Sessions Judge, Salem. 4. The Superintendent, Central Prison, Coimbatore. (As per cause title) 5. The District Collector, Salem. 6. The Director General of Police, Madras – 4. 7. The Public Prosecutor, High Court, Madras. 8. The Section Officer, Criminal Section, High Court, Madras. + 1 c.c. to Mr. A. Ilangovan, Advocate. S.R.No.18154. Crl.A.No.810 of 2009 KA (CO) GSK 01.04.2010. https://hcservices.ecourts.gov.in/hcservices/