IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.360 OF 2008 Parayavarathan .. Appellant Vs. State by Inspector of Police, Villianur Police Station, Puducherry (Crime No.333 of 2002) .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned III Additional Sessions Judge, Puducherry made in S.C.No.97 of 2005, dated 25.03.2008. For Appellant : Mr.A.Padmanaban For Respondent : Mr.R.Natarajan, APP for Puducherry - - - - JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the III Additional Sessions Division, Puducherry made in S.C.No.97 of 2005, whereby the sole accused/appellant stood charged under Section 302 IPC, tried, found guilty as per the charges and awarded life imprisonment and to pay a fine of Rs.5000/-, in default to undergo three months S.I. 2.The short facts necessary for the disposal of this appeal can be stated as follows: a)The deceased Varnambal is the daughter of P.W.6. She married one Rajaram in the year 1985 and a son was born to her, who is P.W.4. She lost her husband in the year 1991 and thereafter, she was living with her parents and was working in Ponds Company at Vadamangalam for about six years. Thereafter, she left the work. When she was staying with her parents, she developed illicit intimacy with the accused and thus, she left the place. She was staying at No.8, Nathamedu Street, Uruvaiyar, Puducherry, where the accused frequently visited her. b)On 19.08.2002 at about 11.30 p.m., when the deceased was in her house, the accused came over there and there arose a quarrel between https://hcservices.ecourts.gov.in/hcservices/ them. The accused poured kerosene on her and set her ablaze. She made a distressing cry and the accused ran away from the place of occurrence. c)P.W.1, the cousin brother of the deceased, got an information and proceeded to the place of occurrence. He took the deceased first to Community Health Centre, Karikalampakkam, where she was given initial treatment. She suffered 80% burns. For further treatment, she was referred to the Government General Hospital, Puducherry. Accordingly, she was taken to the Government General Hospital, Puducherry, where she was given treatment. d)On 20.08.2002 at about 2.10 a.m., P.W.17, the Sub Inspector of Police, received an information from the Head Constable attached to Korkadu Outpost police station, about the incident. Then, he proceeded to the Government General Hospital, Puducherry, but she was not in a condition to give any statement and hence, P.W.17 recorded the statement of P.W.1, which was marked as Ex.P.1, on the strength of which, a case came to be registered in Crime No.333 of 2002 under Section 307 IPC. Ex.P.22, the F.I.R. was despatched to the Court. Thereafter, P.W.17 again went to the hospital and found that the deceased was conscious and was also in a fit state of mind to give statement. Accordingly, her statement was recorded and her thumb impression was also obtained and the Doctor was also present at that time. Then, a requisition was forwarded to the Judicial Magistrate, Puducherry for recording the dying declaration of the deceased. e)Accordingly, P.W.13, the Judicial Magistrate-II, Puducherry, went to the Government General Hospital, Puducherry on 20.08.2002 and recorded the dying declaration of the deceased after verifying that she was in a fit state of mind to give dying declaration and it is also certified by the medical person. The dying declaration proceedings are marked as Ex.P.17. f)P.W.17 took up the investigation, proceeded to the scene of occurrence and made an inspection in the presence of the witnesses. The place of occurrence was photographed through P.W.10, the photographer. Ex.P.8 to P.11 are the photos and negatives. P.W.17 recovered material objects from the place of occurrence under a cover of mahazar. He also examined the witnesses and recorded their statements. g)Then, P.W.18, the Inspector of Police, took up the investigation. He received the death intimation of the deceased. The case was altered to Section 302 IPC. Ex.P.24, the alteration report was despatched to the Court. Then, P.W.18 went to the hospital. The dead body of the deceased was also photographed through P.W.10, the photographer. Exs.P.12 and P.13, photos and negatives were marked. P.W.18 conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.26, the inquest report. Then, the dead body of the deceased was sent for the purpose of autopsy. https://hcservices.ecourts.gov.in/hcservices/ h)P.W.12, the Doctor attached to the Government General Hospital, Puducherry, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.14, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of burn injuries. i)Pending investigation, the accused was arrested on 21.8.2002 and was sent for judicial remand. P.W.19 took up further investigation and on completion of the investigation, he filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 19 witnesses and also relied on 26 exhibits and 6 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. On the side of the defence, only one witness was examined and three documents were marked. On completion of the evidence on both sides, the trial court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty as per the charge and awarded punishment as referred to above. Hence this appeal has arisen at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the gist of the case of the prosecution was that on the date of occurrence, namely on 19.08.2002 at about 11.30 p.m., the accused poured kerosene on the deceased Varnambal and set her ablaze; that in order to prove this charge, the prosecution had no direct evidence to offer, but it relied on two dying declarations; that it was P.W.1 who took her to the hospital first to the Community Health Centre, Karikalampakkam and thereafter, to the Government General Hospital, Puducherry; that it is not disputed by the prosecution that she was given first aid at the Community Health Centre, but no accident register copy was produced therefor; that thereafter, she was taken for further treatment to the Government General Hospital, Puducherry; that even according to P.W.17, the Sub Inspector of Police, she was unconscious and she could not speak and hence the statement of P.W.1 was recorded and the case came to be registered under Section 307 IPC and hence the claims of the prosecution that the statement was recorded from her by P.W.17 subsequently and also the dying declaration alleged to have been recorded by P.W.13, the Judicial Magistrate were all false and unbelievable; that once she was actually found unconscious, there is no question of recording her statements and that too when she was afflicted with 80% burn injuries, she could not regain her consciousness and therefore, both these documents should not be given any evidentiary value at all, but the trial court has erroneously believed the same and further, both the dying declarations if compared, there were lot of inconsistencies found and hence those documents cannot, but be an outcome of tutored version and hence they should have been rejected by the trial court and hence the appellant https://hcservices.ecourts.gov.in/hcservices/ is entitled for acquittal in the hands of this court. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 6.It is not in controversy that Varnambal, who is the daughter of P.W.6, was taken first to the Community Health Centre, Karikalampakkam with all burn injuries and thereafter, she was taken to the Government General Hospital, Puducherry, where despite treatment she died on 21.08.2002. The case was originally registered under Section 307 IPC and subsequently, it was altered to Section 302 IPC. Following the inquest made by the Investigating Officer, P.W.18, the dead body was subjected to post-mortem by P.W.12, the Doctor, who has given his categorical opinion in Ex.P.14, the post-mortem certificate that she died out of the burn injuries. The fact that Varnambal died out of burn injuries was not disputed by the appellant either before the trial court or before this court. Hence it has got to be recorded so. 7.In order to substantiate the charge, it is true, the prosecution had no direct evidence to offer, but it satisfied the trial court and also this court by placing two statements given by the deceased. The first statement was the one recorded by P.W.17 from the victim. On the very day at 8.35 a.m. when P.W.17 went to the hospital, she regained her consciousness and it was also certified by the Doctor that she was in a fit state of mind to give such a statement and accordingly, her statement was recorded, which was marked as Ex.P.23. On her death, it can be taken as one dying declaration. Following the same, a requisition was forwarded to the Judicial Magistrate concerned to record the dying declaration. Accordingly, P.W.13, the Judicial Magistrate, No.2, Puducherry, went to the hospital and recorded the dying declaration of the deceased, during which, a medical person was present and only after certified by the Doctor that she was sound and in a fit state of mind to give declaration, it has been recorded. The said dying declaration proceedings were marked as Ex.P.17. From the evidence of P.W.13, it would be quite clear that she was conscious and was in a fit state of mind to give declaration. Further, no infirmity was found in recording the dying declaration. When the dying declaration recorded by P.W.13, the Judicial Magistrate, which was marked as Ex.P.17, is compared with Ex.P.23, the statement recorded by P.W.17, the Sub Inspector of Police, this court is unable to notice any inconsistency or discrepancy. Under these circumstances, both these documents have got to be given full weight. 8.Apart from that, these dying declarations have been coming from the mouth of the deceased, which are solemn in nature. This court is unable to see any reason to discard or to doubt this part of the evidence. On the contrary, the prosecution brought to the notice of this court that these two dying declarations are sufficient evidence pointing to the nexus of the accused with the crime. https://hcservices.ecourts.gov.in/hcservices/ 9.The second line of argument put forth by the learned counsel for the appellant is that there was quarrel, which has actually impelled the appellant to pour kerosene on the deceased and set her ablaze. This contention cannot be accepted. Even from the evidence available, it would be quite clear that she prepared rice and at that time, the accused came over there and it was he who picked quarrel, poured kerosene and set her ablaze. Thus, even if there was any provocation, it was at the instance of the appellant and hence the law cannot come to his rescue. It is not a fit case where any leniency could be shown. It is a case where the prosecution has proved the intentional act of the accused in setting her ablaze by pouring kerosene. Hence the act of the appellant cannot but be termed only as murder. After marshalling and considering the evidence, the trial court has come to a correct conclusion and has imposed conviction and sentence on the appellant, which do not require any interference. Accordingly, this criminal appeal fails and the same is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1. THE III ADDITIONAL SESSIONS JUDGE, PUDUCHERRY 2. -DO-THRO THE PRINCIPAL SESSIONS JUDGE,PUDUCHERRY 3. THE INSPECTOR OF POLICE VILLIANUR POLICE STATION,PUDUCHEERY 4. THE PUBLIC PROSECUTOR HIGH COURT,MADRAS 5. THE SUPERINTENDENT CENTRAL PRISON,PUDUCHERRY 6. THE SECTION OFFICER CRIMINAL SECTION HIGH COURT,MADRAS 7. THE DIRECTOR GENERAL OF POLICE,MADRAS 1 cc To Senior Govt.Pleader cum Cum Senior Public Prosecutor for Pondicherry, S.R.71205 CRL.A.NO.360 OF 2008 KM(CO) SRA(06/01/2009) https://hcservices.ecourts.gov.in/hcservices/