BAIL SLIP The Appellant/Accused viz. Afsal Khan was directed to be released on bail as per the order of this Court dated 18.9.2006 in Crl.M.P.No.4247 of 2006 in Crl.Appeal No.269 of 2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.04.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal.No.269 of 2006 Afsal Khan ... Appellant (Sole Accused) vs. State, rep. by Inspector of Police, B-3 Kattur Police Station, Coimbatore City. (Cr.No.1430/2004). ... Respondent (Complainant) Appeal against the judgment of the learned Principal District and Sessions Judge, Coimbatore, dated 15.11.2005 made in S.C.No.132 of 2005. For Appellant : Mr.R.John Sathyan For Respondent : Mr.N.R.Elango Additional Public Prosecutor * * * * * https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T (Delivered by P.D.DINAKARAN,J.) The appellant, sole accused, was convicted for having committed uxoricide and sentenced to imprisonment for life and a fine of Rs.2,000/- with a default sentence, by judgment dated 15.11.2005 in S.C.No.132 of 2005 on the file of Principal District and Sessions Judge, Coimbatore. 2.The charge against the appellant is that on 11.10.2004 at about 2.15 p.m., due to aversion towards his wife, viz., Thahira Banu, on account of her continuous illicit relationship with one Mani @ Manikandan and for having filed a petition for divorce before Jamath, the appellant poured sulphuric acid on the body of his wife, when she was lying down in their residence and on account of that she succumbed to the burn injuries suffered on 14.11.2004 and thereby, committed an offence under Section 302 I.P.C. 3.On being committed to Court of Sessions, the accused was questioned as to his complicity in the crime, but he denied and hence, the trial was taken up. To substantiate the above charge, the prosecution marched 18 witnesses armed with 26 documents and 10 material objects. On the side of defence, the accused produced two witnesses, but did not mark any document. The trial Court, on careful scrutiny of the materials, both oral and documentary and on listening to the arguments of both sides, convicted and sentenced the appellant/accused as referred to above. 4. The brief facts leading to the conviction are that: (a) P.W.2 is the brother of the deceased Thahira Banu. The deceased Thahira Banu was given in marriage to the accused about ten years prior to the occurrence and out of their wedlock, two children were born – a girl aged 10 years and a boy aged 8 years at the time of occurrence. The accused was a painter-coolie by profession. They were residing at Karunanidhi Nagar. About 6 months prior to the occurrence, the deceased developed intimacy with one Manikandan, P.W.4, who was running a workshop opposite to the residence of the deceased and accused, when he used to visit frequently under the guise of getting the money due to him from the accused. This was objected by the accused, resulting in frequent quarrels. Even after they shifted their residence, the intimacy continued, due to which the accused left the house with his children to his parents house. P.W.2, brother of the deceased, was requested to join the children with the deceased. https://hcservices.ecourts.gov.in/hcservices/ On 11.10.2004 at about 7.00 a.m., the accused returned to the house, where P.W.1 was also present and the accused and the deceased decided to get divorce before Jamath (Palli Vaasal). P.W.1, thereafter, went to his house to bring lunch for the deceased and the accused. At about 2.15 p.m., the accused, who went out and came back, brought acid and threw it on the deceased, who was lying down on a mat. Immediately, she raised hue and cry on account of burning sensation. The accused went away and on hearing the distressing cries of the deceased, P.Ws.2 and 3 came to the house and took her to Government Hospital, Coimbatore. (b) P.W.10 is the medical officer who admitted and examined the injured at about 3.10 p.m. He noticed 41% burn injures on her person and issued Ex.P.9, accident register copy and also sent an intimation Ex.P.1 to the police. (c) P.W.1, Head Constable of B-3 Police Station, on receipt of intimation, Ex.P.1, at about 5.00 p.m. proceeded to the hospital and recorded the statement of the injured, which is Ex.P.2 in the case and thereafter, returned to police station and registered a case in Crime No.1430 of 2004 for an offence under Section 324 I.P.C. Ex.P.3 is the printed F.I.R. P.W.1 despatched the F.I.R. to Court and copies to superior officers. (d) P.W.16, Sub-Inspector of Police, on receipt of copy of F.I.R., took up investigation; proceeded to the spot; observed the same and prepared Exs.P.4 and P.20, observation mahazar and rough sketch respectively. The scene of occurrence was caused to be photographed. Ex.P.10 series are the photographs and negatives. M.Os.1 to 8 were recovered from the scene of occurrence under a mahazar Exs.P.5 in the presence of P.Ws.5 and 6. (e) In the meantime, on receipt of information from the hospital authorities to record the dying declaration of the injured Thahira Banu on 12.10.2004 at 1.00 p.m., P.W.8, Judicial Magistrate No.6, Coimbatore, proceeded to the hospital and after ascertaining from the medical officer, who was present there, as to the consciousness of the injured to give statement, proceeded to record her statement. Ex.P.8 is the certificate issued by P.W.9, doctor, to the effect that the patient is conscious, well- oriented and in a fit state of mind to give statement and Ex.P.9 is the proceeding of the learned Magistrate. https://hcservices.ecourts.gov.in/hcservices/ (f) On 20.10.2004, P.W.16 came to know that the accused surrendered before the Court. He examined P.W.4 and recorded his statement. On 3.11.2004, he registered a case in Crime No.1589 of 2004 on the basis of a complaint given by one Mohammed Aasam against the accused and arrested the accused and sent him to Court for judicial remand. Ex.P.21 is the printed F.I.R. in the said case. Thereafter, he came to know about the death of the deceased and hence, after examining P.Ws.2,3, 5 and 6, he handed over the investigation to P.W.17, Inspector of Police. (g) In the meantime, P.W.11, the medical officer, who gave treatment to the injured Thahira Banu, caused the plastic surgery to be conducted on the body of the injured Thahira Banu by expert doctors and he also noticed infections on charred portions of the body. But, in spite of effective treatment, the injured Thahira Banu died on 14.11.2004 at about 1.30 p.m. and an intimation, Ex.P.10 was sent by P.W.12 to the police station. According to P.Ws.11 and 12, death could have been occurred on account of septicemia and that the acid-burn injuries suffered by the deceased are sufficient in the ordinary course of nature to cause death. (h) P.W.17, on taking up investigation and the death intimation, Ex.P.10, altered the case to one under Section 302 I.P.C. Ex.P.22 is the express F.I.R. in the altered crime. He conducted inquest over the dead body of Thahira Banu in the presence of panchayatdars and witnesses and prepared Ex.P.23, inquest report. He recorded the statements of the witnesses and sent the body to the hospital with a request to conduct post- mortem. He, thereafter, handed over investigation to his successor, P.W.18, on his return from leave. (i) P.W.13, Civil Assistant Surgeon, Coimbatore Medical College Hospital, Coimbatore, conducted post-mortem on the dead body of Thahira Banu and noticed infected dermal-muscle deep wounds on various regions of the dead body. He issued Ex.P.12, post-mortem certificate, opining that the deceased would appear to have died of infected wounds and their complications. (j) P.W.18 took up investigation and sent the seized material objects to Court with a request to forward them for chemical analysis. On a petition, he caused the arrest of the accused on P.T. Warrant and on interrogation, the accused came forward to give a confession statement, which was recorded in the presence of P.W.15 and another. The admissible portion is Ex.P.17, pursuant to which M.O.9, acid can, was seized under Ex.P.18 mahazar, attested by P.W.15 and another. The accused took the police to the shop of P.W.7, where Ex.P.6, cash bill book was recovered under Ex.P.19 mahazar. On 28.12.2004 and on https://hcservices.ecourts.gov.in/hcservices/ 3.1.2005, he examined witnesses and medical officers and recorded their statements. On completion of investigation on 16.2.2005, he laid the charge sheet against the accused for the offence punishable under Section 302 I.P.C. (k) When the accused was questioned under Section 313 Cr.P.C. on the incriminating materials, he denied them as false. He filed written statement, in which he has stated that the deceased was not interested in leading a happy life with him and she did not even take care of the children. He has further stated that the deceased developed intimacy with P.W.4 when he used to visit the house and that she also eloped with P.W.4 taking their son with her, resulting in a complaint lodged before police and after some time, the deceased returned to live with him and that she informed him that P.W.4 ill-treated her and hence, she realised her mistake and returned back. The accused has further stated that P.W.4 came to their house and scolded the deceased for having given complaint against him and also threatened danger to her life. But, according to the accused, when he was in his parent's house along with his children, he heard from P.W.2, brother of the deceased, that the deceased got injured and admitted in the hospital. On his side, he examined D.Ws.1 and 2, mother of the deceased and daughter of the deceased and the accused. (l) According to D.W.1, mother of the deceased, she admits the illicit intimacy of the deceased with P.W.4, Manikandan and due to the intervention of the police, the deceased left Manikandan and lived with the accused for some time prior to the occurrence. She has further stated that when the deceased was taken in an auto to the hospital, the deceased told her that P.W.4 again came back and called her and since she refused to go along with him, he threw acid on her. But, however, she admits that in order to save the family's reputation, she asked the deceased to tell the police that it was the accused, who poured acid on her and as such, the deceased told the police accusing her husband. D.W.2 also admits that P.W.4 used to come to their house and when he asked her mother to accompany him, she refused and therefore, P.W.4 picked up quarrel with her mother. She has stated that on the date of occurrence she was in her grand mother's house and that the accused had gone to attend his painting work. (m) In short, the accused claimed alibi; that he did not have any grudge or ill-will against his wife, the deceased; and that he accused of P.W.4, Manikandan, for the death of his wife. https://hcservices.ecourts.gov.in/hcservices/ (n) The trial Court, on scrutinisation of materials available and on hearing the submissions of both sides, slapped the conviction on the appellant/accused rejecting the defence theory. Hence, the appeal. 5. Mr.John Sathyan, learned counsel appearing for the appellant, contended that the dying declarations, Ex.P.1, and Ex.P.7 could not have been given by the deceased voluntarily and they must have been on account of tutoring by her mother, as evident from the evidence of D.W.1. However, alternatively, he argued for modification of conviction under lesser offence, since admittedly, the deceased developed intimacy with P.W.4, Manikandan, due to which there was no love-lost between the accused and the deceased and hence, in view of the sustained provocation given by the deceased, without any intention to cause her death, the appellant threw acid on her, which resulted in her death. 6. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor, submits that on the strength of Exs.P.1 and P.7, dying declarations and the evidence of P.Ws.2, 3, 4 and 6 the prosecution has not only established the motive, but also the occurrence proper that it was the accused who poured sulfuric acid on the deceased and caused her death. The learned Additional Public Prosecutor also opposed the plea of lesser offence by submitting that by the act of the accused he had shown his intention to cause such bodily injury which is likely to cause her death and hence, no lesser offence is attracted and an offence under Section 302 I.P.C. is made out. 7. In the light of the submissions made on both sides, we went through the entire materials placed before us. 8. It is not in dispute that the deceased died due to the burn injuries suffered on account of throwing of sulfuric acid on her body. The said fact stands established through the evidence of doctors, P.Ws.10, 11 and 12, who admitted and treated the deceased and P.W.13, who conducted autopsy as well as Ex.P.9, accident register copy and Ex.P.12, post-mortem certificate, which clinchingly show that the deceased died on account of infected wounds (septicemia) and their complications. 9. The questions that are to be decided by this Court are: (i) Whether it was the accused who threw sulfuric acid on the deceased and caused such burn injuries ?; and https://hcservices.ecourts.gov.in/hcservices/ (ii) Whether the act committed by the accused attracts any lesser offence? 10. The prosecution, to substantiate its case, relies upon two dying declarations of the deceased, one given to P.W.1, Head Constable and the other given to P.W.6, Judicial Magistrate. Before proceeding to delve into the issue, it would be apposite to refer the ruling with regard to the acceptability of the dying declaration. 11.1. In Jai Karan v. State of Delhi (NCT) [1999 SCC (Crl.) 1385], the Supreme Court has laid down the following law: "A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted to the premise that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premise which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross-examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration, it must be shown that the person stating it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on a strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence-- neither extra strong nor weak--and can be acted upon without corroboration if it is found to be otherwise true and reliable." (emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/ 11.2. In P.V. Padhakrishna v. State of Karnataka [2003 SCC (Crl.) 1679], the Supreme Court has held as under: "This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn arid serene when he is dying that the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice, because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence..." 11.3. In Thurukanni Pompiah and Anr. v. State of Mysore, AIR 1965 SC 939, the Supreme Court has held that a truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be subjected to a close scrutiny, considering that it was made in the absence of the accused who https://hcservices.ecourts.gov.in/hcservices/ had no opportunity to test its veracity by cross examination. In the event the Court finds that the declaration is not wholly reliable and the material and integral portion of the deceased's version of the entire occurrence is untrue, it would be only unsafe to convict the accused on the basis of such declaration alone without there being any corroboration. 12. It is, thus, clear from the above principles that a dying declaration, which is admissible under Section 32 of the Indian Evidence Act, is entitled to great weight, but, it must be kept in mind that the accused has no power of cross examination and such a power is essential for eliciting the truth. The Court must see reasons that the dying declaration of such a nature has inspired full confidence as to its correctness. The main test of reliability of a dying declaration is mental and physical fitness and capability of the person to make the statement at that point of time. 13. The first dying declaration in the instant case is the statement of the deceased, Ex.P.1, given to P.W.1, Head Constable, who recorded the same on receipt of intimation from hospital authorities and based on such statement, the law was set in motion. Thus, Ex.P.1 is the earliest document to come into existence, in which, it is stated that the accused was suspecting the fidelity of the deceased due to her illicit intimacy with one Manikandan. To substantiate the same, the prosecution examined the said Manikandan as P.W.4 and according to him, he used to visit the house of the deceased frequently under the pretext of getting back the amount payable by the accused to him and thus, developed intimacy with the deceased. Even as per the defence case, this fact stands established through D.W.1, mother of the deceased. From the evidence of P.W.4 and P.W.17, Investigating officer as well as Ex.P.24, complaint given by the accused against P.W.4, it could be culled out that P.W.4 and the deceased lived as husband and wife for some period and only due to intervention of the police, they were separated and the deceased joined the accused and lived together for some months prior to the occurrence. Thus, we are convinced that the prosecution has established the motive part of the case. 14. It is the further case of the prosecution that even subsequently the intimacy of the deceased with P.W.4 continued and hence, the accused and the deceased decided to get themselves separated before Jamath (Palli Vaasal) in the presence of P.W.2, brother of the deceased. It was under such circumstances, on the day of occurrence, the accused returned to the house from his parental home and when P.W.2, brother of the deceased, left the house to bring lunch for them, the accused, taking advantage of the same, went out; bought sulfuric acid from P.W.6; returned to https://hcservices.ecourts.gov.in/hcservices/ the house and threw the same on the deceased when she was lying down. The deceased, on account of burn injuries, raised hue and cry, on hearing which, P.Ws.2 and 3 came to the scene. It is the categorical evidence of P.Ws.2 and 3 that they saw the accused with a silver pot in his hand and after throwing it away, he left the scene. Therefore, we are fully convinced that Ex.P.1 was given by the deceased voluntarily within a short span of time, without any iota of doubt that it could not have been on account of tutoring. 15. The next dying declaration is Ex.P.7 recorded by the learned Judicial Magistrate No.6, Coimbatore, at 1.20 p.m. on 12.10.2004. In the said statement also, the deceased implicated her husband as the person who poured acid on her body when she was lying down. She has also stated in Ex.P.7 that since the accused was in the habit of picking up quarrels with her suspecting her fidelity, they decided to go before Jamath for divorce, but the authorities at Jamath prolonged the issue and even on the date of occurrence, her brother, P.W.2, pacified them and after he went away, the accused came and poured the acid on her. The said statement was recorded in the presence of P.W.9, who appended his certificate that the deceased was conscious and in a fit state of mind during the recording of dying declaration. Therefore, we are of the confirmed opinion that both the dying declarations are truthful and reliable and same has come from the mouth of the deceased, who was on her deathbed and hence, she would not have falsely implicated an innocent person in the commission of a serious crime. 16. That apart, there are other materials by way of corroboration, viz., the evidence of the doctors, P.Ws.10 and 11, as well as Ex.P.9, accident register copy, which disclose that when they questioned as to the cause for such injuries, they were informed that it was the accused who poured acid on the body of the deceased. 17. From the above materials, it is undoubtedly clear that it was the accused who threw sulfuric acid on the body of the deceased, which resulted in her death. 18. The only question that is left to be decided is the nature of offence committed by the accused. It is free from all doubts that all was not well with the accused and the deceased on account of the incorrigible character of the deceased. Though in the case on hand, there is no sudden provocation given by the deceased, the accused had committed the offence due to the https://hcservices.ecourts.gov.in/hcservices/ sustained provocation caused by the deceased by her immoral character in spite of the accused requesting her not to continue with such relationship taking note of the paramount interest of the children. 19. That apart, the accused, in his statement under Section 313 Cr.P.C., apart from claiming alibi, also stated that he had no grudge or ill-will against his wife and in spite of her immoral character, he accomodated with her in the interest of his children and he also accused of P.W.4 for the death of his wife. He examined D.Ws.1 and 2 in support of his plea. But, we are unable to accept the theory of alibi, in view of the direct evidence of P.Ws.2 and 3, who saw the accused at the scene of occurrence having M.O.1, the silver pot, in his hand, which contained sulfuric acid, and we find no reason to