IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28-11-2011 CORAM THE HONOURABLE MR.JUSTICE C.NAGAPPAN AND THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM CRIMINAL APPEAL No.426 of 2011 1.R.Shankar 2.P.Renganathan .. Appellants/Accused 1&2 vs State rep. By Inspector of Police Meensuruti Police Station Ariyalur District Crime No.435 of 2009 .. Respondent/Complainant Criminal appeal preferred under Section 374(2) of the Code of Criminal Procedure against the judgment of the Sessions Judge, Mahila Court, Perambalur, made in S.C.No.62 of 2010 dated 29.6.2011. For Appellants : Mr.S.Ashok Kumar Senior Counsel for Mr.S.Palaninathan For Respondent : Mr.V.M.R.Rajendiran Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by C.NAGAPPAN, J.) This appeal is directed against the judgment dated 29.6.2011, made in Sessions Case No.62 of 2010, on the file of the Sessions Judge, Mahila Court, Perambalur. For the sake of convenience, the appellants, namely R.Shankar and P.Renganathan, in this judgment, will be referred to as accused Nos.1 and 2 respectively. https://hcservices.ecourts.gov.in/hcservices/ 2.Totally there were two accused in the above said Sessions Case, and both were convicted and sentenced as follows: ACCUSED CONVICTION SENTENCE A-1 Section 302 IPC Sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/-, i/d to undergo 6 months RI A-2 Section 302 r/w 34 IPC Sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/-, i/d to undergo 6 months RI 3.The prosecution case is briefly stated thus: (a) P.W.3 Pandiyan is the husband of deceased Jayanthi. P.W.1 Senthil is her elder brother. P.W.2 Venkatesan and P.W.4 Selvaraj are junior paternal uncle of Jayanthi. P.W.9 Murugan and P.W.10 Banumathi are relatives of Jayanthi. P.W.8 Revathi is residing four houses away from the house of Jayanthi. Accused No.2 Renganathan is the father of accused No.1 Shankar. P.W.11 Vasanthi is the sister- in-law of accused No.1. Jayanthi sustained burn injuries in her house on 4.10.2009. P.W.1 Senthil took her to Rajah Muthiah Medical College and Hospital, Annamalainagar. P.W.14 Dr. G.Ramakrishnan examined her at 1.40 P.M. on 4.10.2009, and found 100% burns and admitted her in the hospital. Ex.P7 is the accident register extract issued by him. He sent requisition to the Judicial Magistrate for recording dying declaration and also sent intimation to the police. P.W.16 Mr.Eswaramoorthi, Judicial Magistrate No.II, Chidambaram, went to the hospital at 3.00 P.M., and recorded Ex.P11 dying declaration of Jayanthi. P.W.15 Dr. S.Kannappan certified the physical and mental fitness of Jayanthi to give statement. Exs.P9 and P10 are the certificates made by him in Ex.P11 proceedings. (b) P.W.18 Inspector Deivam received the intimation from the hospital at 4.15 P.M., and went there and recorded Ex.P13 statement given by Jayanthi, and on return to station, registered a case in Crime No.435/2009 under Sections 295(b), 323 and 307 IPC and prepared Ex.P14 First Information Report. At 9.30 P.M., he went to the occurrence place and prepared Ex.P2 observation mahazar, in the presence of P.W.5 Paramasivam and another. Ex.P15 is the rough sketch drawn by him. He examined P.Ws.1 to 5 and recorded their statements. On 5.10.2009, P.W.1 Senthil sent Ex.P16 letter, to the Investigation Officer and P.W.18 Inspector Deivam altered the case to one under https://hcservices.ecourts.gov.in/hcservices/ Sections 294(b), 323 and 302 IPC and prepared Ex.P17 alteration report, and dispatched the same. He conducted inquest on the body of Jayanthi on 5.10.2009 between 10.30 A.M. and 12.00 Noon and prepared Ex.P18 inquest report. He examined further witnesses and recorded their statements. He sent the body for postmortem. (c) P.W.17 Dr. E.Suganthi conducted autopsy on the body of Jayanthi at 12.05 P.M. on 5.10.2009 in Government Kamaraj Hospital, Chidambaram and found the following: "Burns 95% whole body except with some parts of external genitalia. INTERNAL EXAM: Thorax symmetrical, RIBS – intact, Heart 100 ml of blood with clots present. Lungs pale, Hyoid bone intact. Stomach – undigested rice particles about 200 ml present. Liver, Spleen & Kidney – pale. Intestines – distended with gas. Bladder – empty, uterus – empty. Pelvis – normal. Skull – normal, Membrane – intact, Brain – pale." She expressed opinion that death would have occurred 15 to 17 hours prior to postmortem due to 95% burns with excess fluid loss and hypovolemic shock. Ex.P12 is the postmortem certificate issued by her. (d) P.W.18 Inspector Deivam arrested accused No.1 Shankar and accused No.2 Renganathan at 3.30 P.M. on 5.10.2009, near Vaalakuttai Bus Stand and enquired them in the presence of P.W.6 Village Administrative Officer (VAO) Saminathan and Chinnathambi and accused No.1 Shankar gave confession statement, of which Ex.P3 is the admissible portion, and took them near Jayanthi's house and took and produced M.Os.1 to 3 and he recovered them in the presence of said witnesses. On 8.10.2009, he examined P.Ws.8 to 13 and recorded their statements. On 12.10.2009, he examined P.W.14 Dr. G.Ramakrishnan, P.W.15 Dr. S.Kannappan and P.W.17 Dr. E.Suganthi and recorded their statements. He completed the investigation on 6.11.2009, and filed the final report against the accused. 4.In the trial of the case, the prosecution in order to sustain the charges framed against the accused, examined P.Ws.1 to 18 and marked Exs.P1 to P18 and M.Os.1 to 3. 5.Accused were questioned under Section 313 Cr.P.C. and they denied complicity. No witness was examined and no document was marked on their side. 6.The trial Court found the accused guilty of the charges and sentenced them as stated earlier. Challenging the said conviction and sentence, they have preferred the present appeal. https://hcservices.ecourts.gov.in/hcservices/ 7.The prosecution case is that accused No.1 Shankar and accused No.2 Renganathan poured kerosene on Jayanthi and burnt her to death. There are no eyewitnesses to the occurrence. Except P.W.5 Paramasivam and P.W.6 VAO Saminathan, who are attestors of observation mahazar and recovery mahazar respectively, and other official witnesses, all other prosecution witnesses, namely P.Ws.1 to 4 and 7 to 13 have turned hostile. Therefore, the prosecution case purely rests upon two dying declarations made by Jayanthi. Ex.P11 is the dying declaration made by Jayanthi to P.W.16 Judicial Magistrate Eswaramoorthi. Exs.P9 and P10 are certificates made by P.W.15 Dr. S.Kannappan in it certifying that Jayanthi was conscious and in a fit condition to give statement. In Ex.P11 dying declaration, Jayanthi has stated that accused No.1 Shankar was to return two sovereigns of jewel given to Jayanthi by her parents, and since it was demanded, both the accused went to her parental home and assaulted her brother and they came to her house and accused No.1 Shankar by saying that she has to die, poured kerosene on her and the public came and quenched the fire and also stated that her husband is a good person and if she is dead, it is only due to accused No.1 Shankar. Ex.P11 dying declaration, was recorded between 3.00 P.M. and 3.30 P.M. on 4.10.2009, by the Judicial Magistrate. 8.On receiving the intimation from Rajah Muthiah Medical College and Hospital, Annamalainagar, about the admission of Jayanthi as inpatient, P.W.18 Inspector Deivam went there and recorded Ex.P13 statement, given by Jayanthi, in the presence of P.W.15 Dr. S.Kannappan. In Ex.P13 statement, Jayanthi has stated that after marriage, the members of the in-laws' family took two gold coins weighing two sovereigns, from Jayanthi promising to return, and they did not do so and accused No.1 Shankar promised to arrange for its return and he did not keep up his promise and four days prior to occurrence, she informed her brother and junior paternal uncle and they told her that they will have a talk on 4.10.2009, and when the matter was discussed between both the parties, a quarrel arose and on the occurrence day at 12.30 P.M., her husband Pandiyan had gone to Meensuruti and she was alone in the house and accused Nos.1 and 2 came there and cursed Jayanthi that she was responsible for the whole problem and so saying, they beat her with stick and poured kerosene on her and set her ablaze and ran away from the scene and the neighbours came and quenched the fire. P.W.15 Dr. S.Kannappan has also made an endorsement in Ex.P13 statement, that it was recorded in his presence as stated by Jayanthi. Ex.P13 statement, was recorded at 6.15 P.M., and a case came to be registered at 8.30 P.M. on the occurrence day. 9.The main submission of the learned Senior Counsel appearing for the appellants, is that the earliest statement of Jayanthi as to the occurrence, was recorded by P.W.14 Dr. https://hcservices.ecourts.gov.in/hcservices/ G.Ramakrishnan, in which she has stated that she herself poured kerosene and set fire on her in order to commit suicide, and it was also reduced into writing in Ex.P7 accident register extract, by the admission Doctor and this statement came into existence at the earliest point of time and it is a dying declaration; but, it is quite contra to Exs.P11 and P13 dying declarations of Jayanthi, and the multiple dying declarations given by Jayanthi, being contradictory and inconsistent, no sanctity could be attached to it and as such, no reliance can be placed on them, more particularly, in view of the absence of corroboration. Per contra, learned Additional Public Prosecutor submits that Ex.P11 dying declaration, having been given by Jayanthi before the learned Judicial Magistrate, its evidentiary value cannot be doubted and reliance can be placed on it for sustaining the conviction. 10.Ex.P7 accident register extract, shows that Jayanthi was brought to Rajah Muthiah Medical College and Hospital, Annamalainagar by her brother P.W.1 Senthil. The admission Doctor P.W.14 Dr. G.Ramakrishnan also confirms that P.W.1 Senthil brought Jayanthi, who sustained burn injuries, and admitted her in the hospital at 1.40 P.M. on 4.10.2009. His further testimony is that Jayanthi told him that at 12.00 Noon on the same day, she set fire on herself by pouring kerosene, in her house. In Ex.P7 accident register extract, also, the same version has been recorded. It is needless to say that this is the earliest version made by Jayanthi as to how she sustained burn injuries. At the time when Jayanthi told the said version to the admission Doctor, she was accompanied only by her brother, namely P.W.1 Senthil, and neither her husband nor any other members of his family were present at that time. If any other person set her ablaze, naturally she could have informed the same to the admission Doctor as to how she came to suffer burn injuries. But, it is not so. In such circumstances, her version before the admission Doctor as referred above, cannot be eschewed from consideration. 11.There are contradictions and inconsistencies between Ex.P11 and Ex.P13 dying declarations, which came into existence after Ex.P7 document. The most glaring inconsistency is that Jayanthi in Ex.P11 dying declaration, has implicated only accused No.1 Shankar for having poured kerosene, whereas in Ex.P13 statement, the same overt act has been attributed to accused Nos.1 and 2 and further, it is stated that they set her ablaze. It is relevant to point out that both these dying declarations came into existence within a period of three hours, on the occurrence day itself. This cannot be merely termed as a contradiction and it goes to the root of the matter, thereby showing that Jayanthi had a tendency to implicate the accused. There is also evidence available on record to show that the relatives were present in the hospital when Exs.P11 and P13 dying declarations, came to be recorded. Hence the possibility of tutoring cannot be ruled out in the circumstances of the case. https://hcservices.ecourts.gov.in/hcservices/ 12.Reliance was placed by the learned Senior Counsel appearing for the appellants, on the decision of the Supreme Court in MEHIBOOBSAB ABBASABI NADAF V. STATE OF KARNATAKA ((2007) 13 SCC 112) for the proposition that consistency in the dying declaration is the relevant factor for placing full reliance thereupon. His further submission is that the deceased Jayanthi herself had taken contradictory and inconsistent stands in different dying declarations and they should not be accepted on their face value. 13.The law on the issue of dying declaration came to be summarised by the Supreme Court in the latest decision in LAKHAN V. STATE OF MADHYA PRADESH ((2010) 8 SCC 514) and the observation of Their Lordships is extracted below: "21.In view of the above, the law on the issue of dying declaration can be summarised to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. In case there are multiple dying declarations and there are inconsistencies between them, generally, the dying declaration recorded by the higher officer like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about its truthfulness...." 14.In the present case, as already seen, there are material contradictions and inconsistencies regarding the manner of occurrence and also the persons involved. Exs.P11 and P13, dying declarations, being totally contradictory and inconsistent to the declaration in Ex.P7, and they being an after thought of the deceased Jayanthi giving rise to suspicion about its truthfulness, it is not safe to act on such dying declarations and not possible to convict the accused in the absence of any other corroboration. The trial Court has failed to appreciate the multiple dying declarations in proper perspective and its conclusion that the accused are guilty of the charges is erroneous and unsustainable in law and the conviction and sentence imposed on the appellants/accused No.1 and 2 by it, are liable to be set aside. 15.In the result, this criminal appeal is allowed, and the conviction and sentence imposed on the appellants/accused Nos.1 and 2, namely R.Shankar and P.Renganathan respectively, by the Sessions https://hcservices.ecourts.gov.in/hcservices/ Judge, Mahila Court, Perambalur, in S.C.No.62/2010 dated 29.6.2011, are set aside, and the appellants/accused Nos.1 and 2, namely R.Shankar and P.Renganathan respectively, are acquitted of the charges. The fine amount if any paid, shall be refunded to them. The appellants/accused Nos.1 and 2, namely R.Shankar and P.Renganathan respectively, are directed to be released forthwith, unless their custody is required in connection with any other case. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. nsv To: 1)The Sessions Judge, Mahila Court, Perambalur. 2)The District and Sessions Judge Perambalur 3)The District and Sessions Judge Ariyalur 4)The Judicial Magistrate Jayamkondam 5)The Chief Judicial Magistrate Perambalur 6)The Inspector of Police Meensuruti Police Station Ariyalur District 7)The Superintendent of Prisons Central Prison, Trichy. 8)The District Collector Ariyalur District, Ariyalur. 9)The Director General of Police Mylapore, Chennai 4. https://hcservices.ecourts.gov.in/hcservices/ 10)The Public Prosecutor High Court, Chennai 104. 11)The Section Officer Criminal Section, High Court, Madras. +1CC to Mr.P.Palaninathan, Advocate (SR.No.72866) CRL.A.No.426 of 2011 GV(CO) KSA(16/12/2011) https://hcservices.ecourts.gov.in/hcservices/