IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 04/09/2002 Coram The Honourable Mr. Justice P. SHANMUGAM and The Honourable Mr. Justice M. CHOCKALINGAM Criminal Appeal No.65 of 1995 State, represented by The Public Prosecutor, Pondicerry. .. Appellant -Vs- Jayabalan .. Respondent Prayer: Appeal against the judgment of the Third Additional Sessions Judge, Pondicherry dated 7.10.1994 in Sessions Case No.17 of 1993. !For Appellants : Mr. A.P. Surya Prakash, Addl. Public Prosecutor, Pondicherry. ^For Respondent : Mr. A. Padmanabhan :J U D G M E N T P. SHANMUGAM, J. The State represented by the Public Prosecutor has filed the above appeal against the order of acquittal passed by the Third Additional Sessions Judge, Pondicherry. 2. The accused is the husband. He was charged for an offence punishable under Section 302 of the Indian Penal Code for having beaten his wife Vasanthi with a blunt object, poured kerosene over her and set fire to her, thereby committing murder by intentionally causing the death of his wife on 29.5.1992 at about 9.20 am in his house at No.95 , Subbayya Nagar, Pondicherry. The Sessions Court found that the prosecution could not make out the case against the accused beyond reasonable doubt and acquitted the accused. The appeal is against this judgment. 3. The case of the prosecution is stated hereunder; the accused before the Sessions Court shall be hereinafter referred to as the respondent : The marriage between the respondent Jayabalan and Vasanthi, the deceased took place on 5.9.1988. They have two children, one aged 2-1/2 years and the other aged six months as on the date of the occurrence namely 29.5.1992. Vasanthi, comes from a big family of six children, consisting of four sisters and two brothers. She was employed as a Nurse in the T.B. Hospital, Pondicherry and the respondent was employed as a Teacher in Alankuppam Government School, Pondicherry. It was an arranged marriage and the couple were living separately, just opposite to the house of Vasanthi's parents, the two houses being divided by a 20' wide road. The respondent used to collect all the salary of Vasanthi and used to be very strict in allowing her to spend her money and he was in the habit of suspecting the fidelity of Vasanthi whenever she used to talk with a male person. Because of this, there used to be frequent quarrels between the couple. Some time in July 1992, two months prior to the death of Vasanthi, she is said to have complained to her parents that she could not live with the respondent any longer and that she had an apprehension that if she continued to live with him, he will kill her. However, her parents persuaded her to adjust with him since she had three younger sisters yet to be married and thereafter, she went back to her husband's house. Just 1 5 days prior to her death, there was a quarrel between the couple in connection with the ear-boring ceremony of their children. While the respondent wanted to spend lavishly and celebrate the ceremony along with the ear-boring ceremony of his brother' children, for which the deceased did not agree, but wanted a function as simple as possible without much expenditure. The ear-boring ceremony was fixed on 1.6.1 99 2. 4. While so, on Friday, the 29th of May 1992, Vasanthi came to her parents' house with her daughter and six months old son and took her breakfast. Thereafter, she went back to her husband's house. The girl was taken to her school by Vasanthi's sister. After she left her parents' house, Vasanthi's father took his wife, i.e. Vasanthi's mother to the Government Hospital, Pondicherry for some treatment. At about 9.10 am, when the baby started crying, Vasanthi's younger sister Chitra took the child, went to her sister's house which was opposite to their house, left the child there after informing about the same to her sister Vasanthi. 5. At about 9.25 am on 29.5.1992, the brother and sister of Vasanthi heard her screams. Immediately, they went to their sister' s house and found the respondent jumping and coming out from the bathroom without any clothes on his body. It was noticed that he had suffered burn injuries. The respondent is said to have requested P.W.1, the brother of Vasanthi, who had come there upon hearing the screams of her sister, to call for an auto-rickshaw. P.W.1 took up the baby and handed him over to his sister Chitra and requested Narayanan, their neighbour to fetch an auto-rickshaw. When the auto came, the accused got into it along with P.W.6, who was asked to accompany him. He went to the Jawaharlal Nehru Institute of Medical Education and Research, Pondicherry, and as per Ex.P.13, he was attended upon at 9.45 am for the burn injuries alleged to have been sustained by him while lighting a stove at 9.30 am at his house. As per Ex.P.14, the Medico-Legal Examination Report, the respondent was having pain and burn injuries all over his body and he was conscious and oriented. He had no LOC/ Vomitting/Convulsions. 6. Coming back to the scene of occurrence, as per the prosecution case, P.W.1, the brother of Vasanthi, P.Ws.3 and 4, Vasanthi's sisters as well as P.W.5, their neighbour, heard Vasanthi's cries that she was burning and found that she was burning inside the bathroom. As the bathroom door was bolted from inside, they broke open the door with a crow-bar. They covered her with gunny bags and put off the fire. She was conscious while being lifted from the bathroom. When P.W.1 asked her what had happened, she had told that "Mama" - husband ( accused/respondent) beat and burnt her pouring kerosene oil. They brought her to the hall and she breathed her last there. A fresh injury was noticed on the forehead of Vasanthi just above her left eye on the face and her body was completely burnt. 7. At about 9.30 am, one Premila, a neighbour, is said to have informed the Control Room, Pondicherry to the effect that a lady was burnt and was lying in the house at No.95, Subbayya Nagar. The said information was recorded by P.W.10, the Assistant Sub Inspector who was on duty at that time. The information was passed on by wireless to the D.Nagar Police Station. The Sub Inspector of Police from the Station House, in receipt of the information, left the police station with a police party to the place of occurrence and obtained a complaint, Ex.P.1 from P.W.1. Thereafter, he returned to the station and the said complaint was registered as Complaint No.123 of 1992 under Section 302 I.P.C. Ex.P.11 is the First Information Report, which was registered at 11.10 am on 29.5.1992 against the accused under Section 302 I.P.C. that on 29.5.1992 at 0920 hours at No.95, Subbayya Nagar, Pondicherry, the accused committed the murder of his wife Vasanthi by confining her inside the bathroom and set fire on her by pouring kerosene on her due to family dispute. P.W.14, the Inspector of Police started the investigation at 11.00 am and prepared the observation magazar. 8. Charges were framed against the accused dated 17.9.1993 under Section 302 I.P.C. and he was put on trial. 9. Fourteen witnesses were examined. P.Ws.1 to 6 are the prosecution witnesses who speak about the occurrence. P.Ws.7 to 9 are the witnesses for identifying the statements given by P.Ws.1 and 2. P.W.10 is the Assistant Sub Inspector working in the Control Room on 29.5 .19 92. P.W.11 is the Police Photographer. P.W.12 is the Junior Specialist in the Department of Forensic Science and Medicine. P.W.1 3 is the Sub Inspector of Police who got the complaint and registered the F.I.R. P.W.14 is the Inspector of Police who conducted the investigation. 10. Of these, P.W.1, the brother of Vasanthi and P.Ws.3, 4 and 5 are eye-witnesses. P.W.2 is the father of the deceased. P.W.6 is their neighbour who accompanied the respondent to the hospital. 11. The learned Sessions Judge, after considering the oral and documentary evidence, found that there were different versions given by the prosecution witnesses and that the evidence of P.W.5 did not support the case of the prosecution regarding the utterances of the deceased and that the deceased was not in a fit condition to speak and that the medical report does not support the case of the prosecution and that the conduct of the respondent cannot be taken advantage of since he was in a disturbed state of mind as his wife was burning and that there was no sufficient motive to support the case of the prosecution. The learned Judge chose to give the benefit of doubt to the accused and hence acquitted him of the charges framed against him. 12. The learned Additional Public Prosecutor, Pondicherry assailed the order of the Sessions Judge on several grounds. According to him, there is clear evidence, both direct and circumstantial with sufficient motive to prove that the respondent has committed the heinous crime of burning his own wife. He further submits that the learned Judge has made much out of the minor contradictions without appreciating the core of the case of the prosecution. According to him, the learned Judge failed to see that the theory of suicide is totally ruled out in this case, and in the absence of acceptable explanation for the injuries found on the body of the respondent and the defence statement of the respondent himself, the action of the respondent in committing the murder is established beyond any shadow of doubt. 13. Learned Additional Public Prosecutor further submitted that the conduct of the accused in climbing over the wall and jumping out of the bathroom, wherein admittedly the deceased was burning and then, leaving the place without informing any one about the position of the deceased at that time is totally inconsistent with his plea of innocence and it is consistent with the proof of his guilt. The learned Sessions Judge, according to the Additional Public Prosecutor, has failed to see that the only inference that could be drawn in this case is that the accused is responsible for causing injury on the head of the deceased, pouring kerosene and burning her and also making good his escape from the scene of occurrence. He also submitted that the decisions referred to in the judgment of the Sessions Judge cannot be applied in favour of the respondent. He contended that the learned Judge misapplied and wrongly interpreted the medical evidence in support of the respondent. He, therefore, prayed that justice be done and the accused/respondent be found guilty of murder and given the maximum sentence for the serious offence against his own helpless wife. 14. The learned counsel Mr. A. Padmanabhan appearing on behalf of the respondent strenuously pleaded that if two views are possible, the court should lean towards the accused and give the benefit of doubt to him. According to him, the respondent had clearly set out his defence in his written statement and pleaded that in the facts and circumstances, the deceased had committed suicide and that the court has rightly found it to be so. 15. According to the learned counsel, there is a discrepancy with regard to the time of registration of the F.I.R. and the delay in forwarding the same to the Magistrate Court. He had also highlighted the different versions of P.W.4 in reference to the reporting of the incident and the nature of burn injuries suffered by the respondent to the extent of 60%. He submits that the medical evidence falsifies the oral evidence. According to him, all the eye-witnesses are very closely related to the deceased, namely brother and sisters and hence, their evidence is unbelievable and is clouded by a feeling of revenge against the respondent. He further submits that the dying declaration of the deceased is not corroborated by any other evidence. He strongly relies on the decisions of the Supreme Court in support of his contention that if two views are possible, the court must adopt and accept the opinion in support of the accused. He also emphasises that the finding of the trial court, which had the advantage of seeing the demeanour of the witnesses, should not be lightly disturbed by the appellate court. 16. We have heard the learned Additional Public Prosecutor for the State and the learned counsel for the respondent and considered the matter carefully. 17. After going through the records and the evidence, we find that we have the advantage of the evidence of eye-witnesses, the medicolegal examination report as well as the defence statement of the respondent in order to come to a clear conclusion. Of course, this will be subject to the test and scrutiny of the oral and documentary evidence in accordance with law. 18. MOTIVE : The deceased was married to the respondent on 5.9.1988 and has got two children out of their wedlock. Their marital life was not happy as per the evidence of both the prosecution witnesses as well as the defence statement of the respondent. to the prosecution, the appellant has a motive to murder her, whereas the defence attribute a motive for her to commit suicide. According to the written statement filed by the respondent under Section 313 readwith Section 233(2 ) of the Code of Criminal Procedure, the deceased did not like his parents and his support to them. She did not like the ear-boring ceremony of their children being conducted along with his brother's children. According to him, the deceased was an egocentric woman with a stubborn character. Whereas, according to the prosecution witnesses, the respondent did not allow the deceased to spend her money and she had to give all her salary to the respondent and the respondent was also suspecting her fidelity whenever she talked to male members. The prosecution witnesses also speak of her coming back to her parents' house two months prior to the occurrence, complaining that she could not live with the respondent any more and that if she continued to do so, the respondent would kill her. However, it was only after the persuasion of the parents of the deceased that since three younger sisters were in their house yet to be married and on their advice to adjust with the respondent, she went back to the respondent's house. Even 15 days prior to the occurrence, there was a quarrel between the couple with reference to the ear-boring ceremony of their children. According to the prosecution case, the respondent wanted to spend lavishly for that ceremony and wanted it to be conducted along with his brother's children, which the deceased objected to. Insofar as the last part of this difference of opinion is concerned, there is no controversy, since the respondent, in his written statement, has also admitted the same. 19. The fact that the deceased was not having a happy married life has been spoken to by P.W.1, her brother and P.W.2, her father, who have stated that there were frequent quarrels between the deceased and the respondent in reference to his spending the money on his family members and that the respondent used to assault the deceased whenever such differences arose between them. P.W.3 also speaks of the deceased coming to their house two months earlier with a suitcase, stating that she would not live with the respondent any more as he used to beat her frequently and that her life was not safe in his hands. She, however, heeded to her parents' advice to bear with the respondent since her younger sisters had to get married and thereafter, she went back. P.W.4, another sister, also speaks of the frequent quarrels and the difference of opinion between the couple. She also says that two months prior to her death, the deceased came away to their house with a determination not to join her husband. It was only their parents who advised her to go back to his house as her other sisters had to get married. Once again, a fortnight before her death, there was a misunderstanding between them in connection with the ear-boring ceremony of their kids. Ex.P.1, complaint, which was given by P.W.1, also mentions about the fact that the respondent used to be very strict in the handling of the salary money of the deceased and that two months prior to the occurrence, the deceased came away to her parents' house with a bag and luggage and that the parents had counselled her and sent her back on the same day to the respondent's house. The complaint also refers to the quarrel between the deceased and the respondent in reference to the ear-boring ceremony on 28.5.1992. 20. Though P.Ws.1 to 4 are closely related, their evidence is clear and categorical in reference to the frequent quarrel between the deceased and the respondent, the beating and the ill treatment received by the deceased at the hands of the respondent which compelled her to leave his house and come to her matrimonial home permanently and as to the persuasion of her parents to adjust and live with the respondent. As a matter of fact, the deceased had told them, which is spoken to by P.Ws.1 to 4 consistently, that if she goes back, her life will not be safe in the hands of the respondent. The complaint, which was given immediately thereafter, also speaks of this quarrel. The written statement also admits about the serious difference in reference to the ear-boring ceremony and also says that the deceased was an egocentric woman with stubborn qualities. The facts that the respondent suspected her fidelity, as this happened during a holiday tour and that from then onwards, the respondent did not like her talking to any male or female persons, has been spoken to by P.W.2, the father of the deceased; P.W.1, P.W.3 and P.W.4 also speak about the dislike of the deceased towards the respondent and of the facts that he did not like the deceased spending even her own salary and that he beat her and often quarreled with her on these accounts have been clearly spoken to by them and we find that their evidence is true. There is evidence to the fact that the deceased apprehended danger to her life and hence she came away with her bag and luggage to her parents' house and that she was compelled by her parents to go back to her house. We find that there were admittedly, frequent quarrels and the respondent had been strict on the deceased spending her salaries and suspecting her fidelity, and a stage reached when the deceased felt unsafe to live with him and hence came away with her bag for a separation. This was two months prior to the occurrence. The immediate quarrel started over the ear-boring ceremony, as admitted by both. There was a refusal on the part of the deceased to participate in the ceremony with the respondent's relatives and her insistence was to make it simple affair. If the deceased were not to go in for the ceremony scheduled to be held on 1.6.1992, the respondent was bound to suffer. He admits that the deceased was stubborn and egocentric. This is what is stated in Ex.P.1, the complaint given by P.W.1 : "vd; khkh FL:k;g jfuhW fhuzkhf mf;fh tre;jpia gyte;jkhf ghj;UKf;Fs; js;sp/ cs;gf;fkhf jhHpl;L/ mf;fhit jhf;fpa[k;/ mts; nky; kz;bzz;bza; Cj;jp jPitj;Js;shh;." In these circumstances, the contention that there was no motive for the respondent to do away with the deceased or that they were living happily cannot be accepted. 21. OCCURRENCE : The fact that on 29.5.1992 at about 0920 hours, the deceased Vasanthi, the wife of the respondent, was burnt to death is not in dispute. But, the question that arises for determination is whether it was a murder, as contended by the prosecution or a suicide/accident as pleaded by the respondent. 22. To rule out the possibility of suicide, the following circumstances are relevant. Firstly, the deceased had gone to the house of her parents just across the street at 8.30 am on 29.5.1992 along with her children and took breakfast there. At that time, P.W.2, her father, told her that he was going to take her mother to the Government Hospital, for which the deceased is said to have replied that she was to attend her second shift duty and wanted her parents to come back quickly in order to leave her baby with them. Vasanth Kumar, another brother of the deceased (not examined), took Sowmiya, the first daughter of the deceased to the school, whereas the deceased left the baby in her parents' house and thereafter, she went back to her house. After some time, the baby started crying and therefore, P.W.3, the younger sister of the deceased, took the child to her sister's house and after informing her sister, who was in the kitchen, that the boy was crying, she left him in the house and went back to their house. According to her, she was also observing whether her sister takes care of the child. Within minutes, she saw the respondent taking the child and therefore, she came back to their house. This was at 9 am. Therefore, if there was any problem for the deceased at that time, she had the full opportunity to tell the same to her parents and her brother and sisters who were available at the house at that time. On the other hand, she has informed her father that she was having second shift duty and had requested them to come back early. Even though the respondent has stated, on his being questioned, that the deceased had attempted to commit suicide on earlier occasions, there is absolutely no evidence in support of that claim. 23. Secondly, apart from this oral evidence, it could be seen that the bathroom, where the deceased is said to have been burnt, is said to be a small cramped room measuring 4'1" x 4'1" with a low wall of 4 ' height. The bathroom is accessible to anybody to jump over the 4' wall and a person can observe easily as to what is happening inside the bathroom. Thirdly, there are two rooms in the respondent's house, namely a bedroom and a reading room, of which the bedroom is available without any disturbance or access from outside. Fourthly, the child aged six months was left in the respondent's house and the deceased had the opportunity to leave the child safely in her parents' house, but she did not do so. Fifthly, she was not alone in the house so as to attempt a suicide as any of her attempts could be thwarted. 24. Sixthly, P.W.12, Doctor R. Balaraman, Junior Specialist of Forensic Medicine, has stated in his chief-examination, "If a person pours kerosene by himself or herself on head, it would spread over the back also". Ex.P.8, the Post- Mortem Examination Report says that there were epidermo-dermal burns present all over the body excepting back of chest, abdomen and right foot. Seventhly, the observation magazar, Ex.A.2 states about the finding of 18 burnt match sticks, two unburnt match sticks and a burnt match box. The preliminary particulars of the deceased as recorded in Ex.P.7 by the Inspector of Police found, on the body of the deceased, above the left eye-brow, an incised wound and in Column No.3, it is stated that the said injury appears to have been caused by a sharp weapon. The Post-Mortem Certificate also says that there is a lacerated injury 2.5 x 1 cm bone deep present over the forehead on left side. The doctor, in his chiefexamination says, "lacerated injury found on the left forehead of the deceased was fresh". Of course, he says in the cross-examination that the lacerated injury on the left forehead would have been caused by coming into contact with any hard object. He further says that if intense is applied, cracks and fissures occur on the skin and that they