IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.11.2009 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH CRL.A.No.252/2009 Venkatesan .. Appellant/sole accused Vs State by the Inspector of Police Neyveli Police Station, Cuddalore District. .. Respondent/Complainant [Cr.No.171/2008] Appeal filed u/s.374[2] Cr.P.C., against the Judgment passed by the learned Sessions Judge, [Mahila Court], Cuddalore dated 29.04.2009 in SC.No.372/2008. For Appellant : Mr.C.M.Gunasekaran for Mr.V.Parthiban For Respondent : Mr.Babu Muthu Meeran, Addl. Public Prosecutor JUDGMENT [Judgment of the court was delivered by M.CHOCKALINGAM, J.] This appeal challenges the Judgment of the learned Sessions Judge, Mahila Court, Cuddalore, made in SC.No.372/2008 whereby the accused stood charged, tried and found guilty for the offence u/s.498-A and 302 IPC and was awarded with life imprisonment and a fine of Rs.2,000/- in default to undergo three months rigorous imprisonment for the offence u/s.302 IPC and three years rigorous imprisonment and a fine of Rs.1,000/- in default to undergo three months rigorous imprisonment for the offence u/s.498-A IPC. The trial Judge ordered the sentences to run concurrently. 2.Short facts necessary for the disposal of the appeal can be stated as follows:- [a]The deceased Vimala is the wife of the accused. Both the deceased and the accused got married two years prior to the https://hcservices.ecourts.gov.in/hcservices/ occurrence and got a baby aged 1 ½ years. The accused was having illicit intimacy with another lady and the same was questioned by the deceased. There were occasions in which they had quarrel in that regard and he beat her and also cruelly treated her. On 25.07.2008, when P.W.1, the owner of the house in which the accused and the deceased were living as tenants, was sleeping outside in a cot, he heard the distressing cry raised by the deceased at about 2.00 a.m. Immediately, P.W.1 and the accused, who was sleeping next to P.W.1, rushed to the place where the deceased was burnt. P.W.1 tried to put off the fire by using his bedsheet. The wife of P.W.1 also came there and all of them poured water to put off the fire. On information, the brother of the accused rushed to the scene along with his wife. The accused along with his brother Jothi, took the deceased to the Government Hospital, Cuddalore where P.W.17 was the doctor on duty. P.W.17 admitted the deceased at about 4.10 a.m. and gave treatment to her and Ex.P.17 is the copy of the Accident Register. [b]On being informed, P.Ws.2 and 3, who are the parents of the deceased went to the hospital where the deceased was found with burn injuries on the body. Meanwhile, an intimation was given to P.W.14, the learned Judicial Magistrate No.1, Cuddalore who proceeded to the hospital to record the dying declaration from the deceased. After getting the certificate from P.W.11-doctor under Ex.P.7, that the deceased was in a fit state of mind and conscious to give the dying declaration, P.W.14 recorded the dying declaration of the deceased between 5.20 a.m. and 5.35 a.m. on 25.07.2008. The dying declaration of the deceased recorded by P.W.14 is marked as Ex.P.13 and the same was also certified by P.W.11 under Ex.P.8. Later, the deceased was sent to the Government Hospital, Pondicherry for further treatment. [c]An intimation was also given to the respondent Police Station where P.W.16, the Sub-Inspector of Police was on duty at the relevant point of time. P.W.16 went to the Government Hospital, Pondicherry at about 11.00 a.m. and recorded the statement of the deceased under Ex.P.15 and on the strength of Ex.P.15, P.W.16 registered a case in Cr.No.171/2008 for the offences u/s.498-A and 307 IPC. The Express FIR, Ex.P.16 was despatched to the court. [d]P.W.18, Inspector of Police took up the investigation, went to the scene of occurrence and prepared Ex.P.19-Observation Mahazar and a rough sketch-Ex.P.18 in the presence of witnesses and he also examined the witnesses and recorded their statements. He also recovered M.O.1-bed sheet under a cover of Mahazar-Ex.P.20 from the place of occurrence in the presence of witnesses. He went to the Government Hospital, Pondicherry and recorded the statement of the deceased. Despite treatment, the deceased died on 25.07.2008 at about 8.00 p.m. Accordingly, the sections were altered to one u/s.498-A and 302 IPC and the altered FIR Ex.P.21 was despatched to the court and to the officials concerned. The investigating officer recommended the case for RDO enquiry since she had died within a https://hcservices.ecourts.gov.in/hcservices/ period of two years from the date of her marriage. But, the RDO stated that since it was a murder case, the same can be investigated by the investigating officer himself. [e]P.W.18, the Investigating officer went to the hospital on 25.07.2008 at about 9.00 p.m. and held inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.24-Inquest Report. He sent the dead body for postmortem along with a requisition to P.W.12-the doctor attached to the Government Hospital, Pondicherry. P.W.12 conducted the postmortem and found the following injury:- "EXTERNAL INJURIES :- Epidermal and dermo-epidermal burns over the face, neck, front and back of chest, abdomen, genital area, and all the four limbs except the front of left leg." Ex.P.11 is the Post Mortem Certificate wherein the doctor had opined that the deceased would appear to have died of extensive burn injuries sustained by her. [f]Pending investigation, the accused was arrested on the same day, viz., 25.07.2008 at about 10.30 p.m. and the accused came forward voluntarily to give his confession statement, the admissible part of which is Ex.P.22 pursuant to which M.Os.2 to 13 were recovered under the cover of Mahazar Ex.P.23 in the presence of witnesses. The accused was sent for judicial remand. All the material objects recovered from the scene of occurrence, accused and from the dead body of the deceased were all subjected to chemical analysis. 3.On completion of investigation and filing of the final report, the case was committed to court of sessions; necessary charges were framed and in order to substantiate the charges, the prosecution examined 18 witnesses [P.Ws.1 to 18], marked 24 exhibits [Exs.P.1 to 24] and produced 13 material objects [M.Os.1 to 13]. 4.When the accused was questioned u/s.313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses, he denied them as false and no defence witness was examined on the side of the accused. The accused would add as his defence plea that the deceased entertained suspicion over him and when he returned from the job on the date of occurrence, he found the door locked from inside and so, he slept outside and after hearing the alarm raised by her, he went and saw the deceased burning. He would further add that he along with others tried to quench the fire and it was he who took the deceased to hospital for treatment but she succumbed to the injuries and that it was an act of commission of suicide and that he had no role to play. Hearing the arguments advanced on either side and also considering the materials available on record, the trial court took a view that the prosecution has proved its case beyond reasonable doubt against the accused and thus, https://hcservices.ecourts.gov.in/hcservices/ rendered the judgment of conviction. As against the said conviction and sentence, the accused has preferred the above appeal. 5.Advancing the arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution came up with a specific story that the occurrence has taken place at about 1.30 a.m. on 25.07.2008 when the deceased was in the house and it was the accused who poured kerosene on her and set her ablaze. But the prosecution, though relied on a few documents calling them as Dying declarations, has miserably failed to prove its case. Admittedly, the prosecution has no direct evidence to offer. P.W.1 was the owner of the house in which the accused and the deceased were living as tenants during the relevant time and has categorically given evidence that on the date of occurrence, when the accused returned from his work at about 11.00 p.m., P.W.1 was lying outside in a cot and the accused was also lying by his side. At night hours, P.W.1 and the accused heard the distressing cry of the deceased from the house and both of them rushed and saw the deceased burning and they made an alarm and on hearing the same, the wife of P.W.1 and others came and all of them attempted to quench the fire and it was the accused who took his wife to the hospital. It is contended that no reason could be attributed to disbelieve the evidence of P.W.1 who is an independent witness. It is true that the prosecution has treated P.W.1 as hostile but the evidence put forward by P.W.1 would indicate that the defence plea as spoken to by the accused at the time of questioning u/s.313 Cr.P.C., that the deceased committed suicide was more probable than the story of the prosecution. 6.The learned counsel for the appellant further contended that insofar as the earliest document Ex.P.17-Accident Register issued by P.W.17-doctor, the word "fzth;" was actually interpolated and hence, it casts a doubt that it should have been introduced at the instance of the investigator at the later point of time and it is also pertinent to point out that it has been clearly mentioned by P.W.17, the doctor, that it was the accused who brought the deceased to hospital. The evidence of P.W.17 coupled with the evidence of P.W.1 that the accused also made an attempt to quench the fire, would clearly speak of the conduct of the accused that he took all steps to save the life of his wife, the deceased. Had it been true that his intention was to cause the death of his wife by pouring kerosene and set her ablaze, he could not have conducted himself so. 7.The learned counsel for the appellant further submitted that the second document relied on by the prosecution was the dying declaration recorded by P.W.14, the learned Judicial Magistrate No.1, Cuddalore. Insofar as the said document is concerned, no evidentiary value could be attached. According to P.W.14, when he went to the hospital he got the certificate from P.W.11-doctor, that the deceased was in a fit state of mind to give the dying declaration and thereafter, the dying declaration was recorded by P.W.14 and the said https://hcservices.ecourts.gov.in/hcservices/ dying declaration was also certified by P.W.11. A perusal of Ex.P.13 would clearly indicate the verbatim certificate which was affixed by the doctor prior to the commencement of the recording of the dying declaration and was exactly re-affixed after the recording of dying declaration was over. Apart from this, P.W.11, at the time of cross- examination has given a different version as regards the deceased affixing her thumb impression or the impression of the toe and in Ex.P.13, it is alleged that the deceased has affixed the impression of the right toe and the learned counsel submitted that when the deceased sustained 90% burn injuries, she could not have given such a declaration. Another circumstance pointing the fact that it should have been a case of suicide was that only front portion of the body was actually found with burn injuries and not the backside. Thus, pouring of kerosene should have been a self act. All would go to show that Ex.P.13 is not a reliable document. 8.The learned counsel for the appellant would also submit that insofar as Ex.P.15-complaint of the deceased, P.W.16 the Sub- Inspector of Police would claim that the same was recorded from the deceased and the deceased affixed her thumb impression in the said complaint. But according to the evidence of P.W.11-doctor and P.W.14-learned Judicial Magistrate No.1, Cuddalore, the palms of the deceased were equally burnt and hence, she was not in a position either to sign or affix thumb impression. Under such circumstance, the impression of the right toe was affixed in Ex.P.13. But P.W.16, the Sub-Inspector of Police has come forward stating that the deceased has affixed her signature in Ex.P.15. Hence, the document could have come into existence according to the wish of the investigating officer. Thus, the learned counsel submitted that all the three documents, viz., Exs.P.17,13 and 15 respectively, referred to above, though claimed to be the dying declarations, the same were found with infirmities, lacuna and inconsistencies as found in the evidence put forward by the prosecution and the same should have been eschewed by the trial court; but failed to do so. 9.Added further, the learned counsel that the evidence of P.W.1 coupled with the conduct of the accused and the other circumstances, would indicate that the defence plea of commission of suicide was more probable and as far as the offence u/s.498-A IPC is concerned, the prosecution is unable to produce any material to substantiate the same and hence, the judgment of the trial court should be rejected in its entirety and the accused is entitled for acquittal in the hands of this court. 10.Heard the learned Additional Public Prosecutor on the above contentions and the court paid its anxious consideration on the submissions made on either side. 11.It is not in controversy that one Vimala, the wife of the accused, following an incident that had taken place at about 1.30 https://hcservices.ecourts.gov.in/hcservices/ a.m. on 25.07.2008, was set on fire and was taken to the Government Hospital, Cuddalore immediately where she was given initial treatment by P.W.17-doctor and thereafter, taken to the Government Hospital, Pondicherry for further treatment, where, despite treatment she died due to the burn injuries sustained by her. Following the inquest made by P.W.18, the Inspector of Police, the dead body was subjected to postmortem by P.W.12 who has given his medical opinion as a witness before the court and also through the contents of the Post Mortem Certificate, Ex.P.11 that the deceased would appear to have died of extensive burn injuries sustained by her. The cause of the death as put forward by the prosecution was not disputed by the appellant before the trial court and before this court and the trial court did not feel any impediment in recording so and it has got to be affirmed. 12.The specific case of the prosecution was that there was often quarrel between the accused and the deceased with regard to the illegal intimacy of the accused with another lady by which the deceased was aggrieved and that it was being questioned and on the date of occurrence, viz., 25.07.2008, at about 1.30 a.m. he poured kerosene and set fire on her and thus, as a direct consequence, she died. On the contrary, the defence came with a plea that the prosecution story was false and it was only an act of self immolation by the deceased to commit suicide. 13.In order to substantiate the charge of murder, the prosecution has no direct evidence to offer. But in the considered opinion of the court, the prosecution had sufficient materials to substantiate the crime of murder. It is well settled proposition of law that in a given case like this, a conviction can be sustained merely on the dying declaration of the deceased, if it inspires the confidence of the court. In the instant case, it does so. It is admitted that from the place of occurrence, she was taken immediately to the hospital where she was attended by P.W.17-doctor at about 4.10 a.m. P.W.17 has recorded the words uttered by her in Ex.P.17 wherein it has been clearly stated that it was her husband, the accused, who admitted her in the hospital and she has also stated that it was he who poured kerosene and lit fire on her and also narrated the reason for doing so. P.W.17, in his chief examination, has stated that the deceased was well oriented and conscious and she also narrated the incident which was also recorded. The learned counsel for the appellant brought to the notice of this court that the word "fzth;" has been added. But, it is pertinent to point out that though the doctor was not cross examined in that regard, a perusal of the document would show that it was only a inter-lineation and not interpolation which makes a lot of difference. So long as the word, that was found in the same line, even assuming to be added, unless and until the same was cross-examined by the same person, the contention put forward by the learned counsel for the appellant could not be accepted. https://hcservices.ecourts.gov.in/hcservices/ 14.Added further, the prosecution had the best piece of evidence, viz., the dying declaration-Ex.P.13, recorded by P.W.14-the learned Judicial Magistrate No.1, Cuddalore between 5.20 a.m. and 5.35 a.m. on 25.07.2008. According to P.W.14, on intimation he went to the hospital and found that the deceased was conscious enough and in a fit state of mind and obtained a certificate from P.W.11-doctor in that regard and recorded the dying declaration from her. A perusal of the dying declaration-Ex.P.13, would clearly indicate that she has narrated the entire incident as to how it had taken place and the reason for her husband acting so. This court is unable to see any reason why the evidence of P.W.14-the learned Judicial Magistrate No.1, Cuddalore has got to be disbelieved. So long as the dying declaration which was recorded by P.W.14 inspires the confidence of this court, in the considered view of this court, this single piece of evidence would suffice to sustain the conviction of the accused. 15.The next document relied on by the prosecution to prove its case is the complaint under Ex.P.15 recorded by P.W.16, the Sub- Inspector of Police from the deceased. P.W.16, the Sub-Inspector of Police has deposed in her evidence that the statement of the deceased was recorded and the same is Ex.P.15. It is true that there are certain discrepancies found in the evidence of P.W.16. But once those two earlier documents, viz., Ex.P.17 and Ex.P.13, have come into existence in the form of Accident Register issued by P.W.17 and the dying declaration recorded by P.W.14, the Judicial Magistrate respectively, this court is of the considered opinion that the mistakes committed by P.W.16 in recording Ex.P.15, does not leave any room to give the benefit to the accused. It looks like a doubt but definitely not a reasonable doubt. The learned counsel for the appellant by the length of experience, brought to the notice of this court certain discrepancies hither and thither, but in a given case like this, when the dying declarations are consistent and the substances are same where the deceased was making accusation against her husband, this court has to believe, accept and act on the same. It is further pertinent to point out that there is no material available in favour of the accused that at the time of occurrence, the deceased died or at the time of giving dying declaration, there was anyone to tutor or influence her. Under such circumstance, the trial court is perfectly correct in accepting the evidence put forward by the prosecution to sustain the conviction and this court is unable to see anything to disturb the judgment of the trial court either factually or legally. 16.Insofar as the second charge, viz., the offence u/s.498-A IPC, the trial court has taken an erroneous view as this court is unable to see any material to connect the accused with the said charge. Under such circumstances, the judgment of the trial court insofar as the charge u/s.498-A IPC has got to be set aside and accordingly, the same is set aside. The appellant is acquitted of https://hcservices.ecourts.gov.in/hcservices/ that charge and the fine amount, if any paid by him, will be refunded to him. The conviction and sentence for the offence u/s.302 IPC are confirmed. 17.Accordingly, the criminal appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ap To 1. The Sessions Judge Mahila Court, Cuddalore. 2. -do- Through The Principal Sessions Judge, Cuddalore. 3. The District Munsif-cum-Judicial Magistrate, Neyveli. 4. The Superintendent, Central Prison, Cuddalore. 5. The District Collector, Cuddalore. 6. The Director General of Police, Chennai - 4. 7. The Inspector of Police, Neyveli Police Station, Cuddalore District. 8. The Public Prosecutor High Court, Chennai. Crl.A.No.252/2009 KS(CO) RVL 10.12.2009 https://hcservices.ecourts.gov.in/hcservices/