BAIL SLIP The Petitioner/Accused namely Suresh Rajavelan was directed to be released on bail as per order of this Court dated 7.12.2006 made in MP.No.1/2006 in Crl.A.No.992 of 2006 on the file of this Court IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.992 OF 2006 Suresh Rajavelan .. Appellant/Accused Vs. State by the Inspector of Police, C.2, Selaiyur Police Station, Selaiyur, Chennai. .. Respondent/Complainant This criminal appeal has been preferred under Section 374 Cr.P.C. against the judgment of the learned Principal Sessions Judge, Chengalpattu made in S.C.No.348 of 2005, dated 6.11.2006. For Appellant : Mr.V.Krishnamoorthy For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges the judgment of the Principal Sessions Division, Chengalpattu made in S.C.No.348 of 2005, whereby the appellant/sole accused stood charged under Sections 498-A and 302 IPC, tried, found guilty as per the charges and awarded one year R.I. and to pay a fine of Rs.1000/-, in default to undergo 3 months S.I. under Section 498-A IPC and life imprisonment and to https://hcservices.ecourts.gov.in/hcservices/ pay a fine of Rs.1000/-, in default to undergo 6 months R.I. under Section 302 IPC and the sentences were ordered to run concurrently. 2.The short facts necessary for the disposal of this appeal can be stated thus: a)The accused/appellant is an Auto Driver by profession and he married the deceased Kanchana in the year 2005. P.Ws.1 and 2 are the parents of the deceased. They were residing at Amman Koil Street, Red Hills, Chennai. At the time of marriage, 8 sovereigns of jewels were given to their daughter and 2 sovereigns of gold were given to the accused. Subsequent to the marriage, the spouses were living separately. P.W.2 came to know that the marital life of the spouses was not happy. P.W.3 was the classmate and close friend of the accused. Subsequent to the marriage when P.W.3 met the accused, he informed P.W.3 that the fact that he was an impotent was known to his wife, as a result of which there was quarrel between them. P.W.3 advised him to go to the Doctor. P.W.4 is also a co-auto driver, to whom also the accused informed the same and P.W.4 also advised him to consult the Doctor. b)When P.W.5, the Senior Officer at Madras Port Trust, met the accused at about 9.30 a.m. on 25.1.2005 in front of his house, the accused unusually took his auto suddenly and proceeded. Usually, the accused spoke with P.W.5, but on that day, he did not speak anything and P.W.5 has told him to drive carefully. At about 10.00 a.m. on the same day, when P.W.3 was proceeding to his house from his S.T.D. Booth, he met the accused on the way and the accused seemed to be perplexed. When P.W.3 was standing in the bus stand, the accused stopped his auto there and called P.W.3 and informed him that there was a quarrel, in which he demanded 1-1/4 sovereigns of jewels from the deceased, but she has not answered for the jewels and called him impotent and hence he got angry and caught hold of her tuft and dashed her towards the floor and thereafter, he poured kerosene on her and set her fire. c)At about 12.30 p.m., when P.W.4 and P.W.5 came near the house of the accused, they saw a crowd gathered in front of the house of the accused and found the dead body of Kanchana with burn injuries. P.W.6, the owner of the house, also witnessed the same. At about 4.30 p.m., P.Ws.1 and 2 were informed about the same and they rushed to the place of occurrence. At about 9.00 p.m., P.W.1 gave Ex.P.1, the complaint to P.W.15, the Inspector of Police of the respondent police station, on the strength of which, a case came to be registered in Crime No.56 of 2005 under Section 174 Cr.P.C. Ex.P.19, the F.I.R. was despatched to the Court. d)P.W.14, the Assistant Commissioner of Police, took up the investigation, on receipt of the copy of the F.I.R., and proceeded to the spot. He made an inspection in the presence of the witnesses and prepared Ex.P.9, the observation mahazar and Ex.P.20, the rough sketch. He recovered M.O.3, plastic can, M.O.4, https://hcservices.ecourts.gov.in/hcservices/ match box and M.O.5, burnt match sticks from the place of occurrence under a cover of mahazar. He examined the witnesses and recorded their statements. P.W.10, the Scientific Officer of the Forensic Science Department went to the scene of occurrence and collected smoke particles in the bottle. e)P.W.15 took up further investigation. On receipt of the intimation, P.W.13, the Revenue Divisional Officer, went to the Government Hospital, Royapettah and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.16, the inquest report. He recorded the statements of the witnesses. After the enquiry was over, Ex.P.18, report was given by the Revenue Divisional Officer that she died due to dowry cruelty. f)P.W.12, the Doctor attached to the Government Hospital, Royapettah, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.13, the post- mortem certificate, wherein he has opined that the deceased would appear to have died of shock due to extensive burns 28 to 32 hours prior to autopsy. g)P.W.15 converted the case to Sections 302 and 201 IPC. Ex.P.21, the alteration report was sent to the court. Pending investigation, the accused was arrested on 2.2.2005 at about 8.30 a.m. in the presence of the witnesses. He voluntarily came forward to give confessional statement which was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.8. Pursuant to the same, the accused produced M.O.1, pant and M.O.2, shirt, which were recovered under a cover of mahazar. Further, the witnesses were examined and their statements were recorded. All the material objects recovered were sent for chemical analysis. Exs.P.12 and 14, chemical reports were received. On completion of the investigation, the Investigating Officer has filed the final report under Sections 498-A and 302 IPC. 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 has examined 15 witnesses and also relied on 23 exhibits and 7 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. No defence witness was examined. The trial court, on hearing the arguments advanced on both sides, took the view that the prosecution has proved both the charges and found the accused guilty as per the charges 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 has made the following submissions: https://hcservices.ecourts.gov.in/hcservices/ a)In the instant case, the occurrence has taken place, according to the prosecution, on 25.01.2005 at about 9.30 a.m. The prosecution had no direct evidence to offer and it has rested its case on circumstantial evidence. The prosecution has miserably failed to place or prove necessary circumstances pointing to the guilt of the appellant. According to the prosecution, extra judicial confession was given to P.W.3. The evidence would clearly reveal that P.W.3 was not his friend, but he was only the classmate, who studied till 8th standard. Hence there was no intimacy which impelled the accused/appellant to give any confessional statement to him. Apart from that, according to P.W.3, he was all along present even at the time of inquest. Had it been true, the name of P.W.3 should have been found place in the inquest report, but his name was not found. Had it been true that P.W.3 was all along present and the accused also confessed about the occurrence, he could have certainly come out with the truth, but he has not done so. This would be indicative of the fact that no confession could have been made by the accused to P.W.3. Hence the alleged extra judicial confession given by the accused to P.W.3 should have been rejected by the trial court, but the prosecution has much rested the same and the trial court has also accepted the same, but it should have been rejected outright. b)In the instant case, the medical opinion what was canvassed was also not in favour of the prosecution. According to the prosecution, originally, to commence with, due to provocation, the accused dashed her on the floor and caused injuries and thereafter, he poured kerosene. The medical opinion canvassed would clearly reveal that the injuries could have been caused only because of setting fire, but no other injury was caused, which would clearly indicate the fact that it was the case of suicide. According to P.Ws.1 and 2, they rushed to the spot on coming to know that she committed suicide. This would clearly reveal the fact that the accused had no complicity in the offence. c)The occurrence has taken place, according to the prosecution, on 25.1.2005, but the post-mortem certificate and the Doctor's evidence, who conducted post-mortem, would reveal that the deceased would appear to have died 28 to 32 hours prior to autopsy. The post-mortem was conducted on 27.1.2005 at about 10.00 a.m. If to be so, she would have died only on 26.1.2005 and not on 25.1.2005 as put forth by the prosecution. All put together would clearly show that the prosecution has miserably failed to prove the case by the so-called circumstantial evidence. d)Added further the learned counsel in the second line of argument that even as per the evidence put forth by the prosecution, at the time of occurrence, there was a quarrel and the accused was demanding 1-1/4 sovereigns of gold jewels, which was actually given by the deceased to her mother and it was pledged by her mother and hence a demand was made. Instead of giving proper answer, she was questioning the impotency of the https://hcservices.ecourts.gov.in/hcservices/ accused. It was naturally provoked him and due to provocation, the accused has acted so. If the court comes to the conclusion that the prosecution has proved the factual position that it was the accused who caused the death, the act of the accused would not attract the penal provision of murder, but it would be one culpable homicide not amounting to murder. Hence the above aspects have got to be considered by 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 Kanchana, the wife of the accused, died out of burn injuries caused in an incident that took place on 25.1.2005. Following the inquest made by the Revenue Divisional Officer, the dead body was subjected to post-mortem by P.W.12, the Doctor, who has given his categorical opinion in Ex.P.13, the post-mortem certificate that the deceased would appear to have died of shock due to extensive burns. Apart from that, this fact was never questioned by the appellant and hence it has got to be recorded so. 7.True it is, in the instant case, the prosecution had no direct evidence to offer, but it has rested its entire case on circumstantial evidence. It is not that this court is unmindful of caution made by the Apex Court and by the settled principles of law that in a given case like this when the prosecution rested its case exclusively on circumstantial evidence, the circumstances must be placed and proved pointing to the guilt of the accused undoubtedly and also point out the hypotheses that except the accused no one else could have committed the offence. In the instant case, the court is thoroughly satisfied, even after application of the above test, in the present facts of the case. The case of the prosecution is that it was the accused who poured kerosene on her wife on 25.1.2005 at 9.30 a.m. and caused her death. 8.From the evidence of P.W.5, the Senior Officer at Madras Port Trust, it would be quite clear that P.W.5 met the accused at about 9.30 a.m. when the accused coming out of his house and he saw that the accused was perplexed and also took his auto in a rash manner and it was P.W.5 who asked him to drive the vehicle carefully. Thereafter, the accused gave extra judicial confession to P.W.3. From the evidence of P.W.3, it would be quite clear that they studied together till 8th standard and apart from that, they were moving with each other in the past. After a month from the time of marriage, the accused was complaining about the conduct of his wife and she called him impotent. Therefore, from his evidence, it would be quite clear that when the accused came forward to share with his family matters to P.W.3, it shows that he reposed confidence on him. According to P.W.3, on 25.1.2005 at about 11.00 a.m., he met the accused on the way and the accused took him to Kandasamy koil and informed him that there was a https://hcservices.ecourts.gov.in/hcservices/ quarrel between him and his wife at about 9.30 a.m. and he demanded 1-1/4 sovereigns of jewels and there was an evasive reply and further, his wife called him impotent and hence the accused got angry and caught hold of her tuft and dashed her towards the floor and thereafter, when she swooned, he poured kerosene and set fire on her. Before accepting the extra judicial confession, the court has to apply two tests, namely whether circumstances are attendant when extra judicial confession was given and whether the evidence of the person to whom it was made has inspired the confidence of the court. 9.In the instant case, the occurrence has taken place at about 9.30 a.m. and the extra judicial confession was made within an hour or two to P.W.3. Apart from that, the evidence of P.W.3, in the opinion of the court, has inspired the confidence of the Court. The medical opinion, namely the post-mortem certificate, would reveal that there were bruises on the head and such an injury could not have been caused by fire, but it was the accused who dashed her on the floor. The extra judicial confession given to P.W.3 stood as proof to the prosecution. The extra judicial confessional, in the opinion of the court, is the strong piece of evidence. 10.The contention put forth by the learned counsel for the appellant that it was the case of commission of suicide has got to be thoroughly ruled out from the medical evidence adduced and also the extra judicial confession made, since it was believed by the court. The another contention is that the death took place only on 26.1.2005 in view of the post-mortem certificate. But the court has to brush aside that part of the evidence put forth by the Doctor, since immediately after the occurrence, the witnesses have actually seen the dead body and P.Ws.1 and 2 also rushed to the spot and gave the complaint to the police on 25.1.2005 and on the complaint of P.W.1, the case came to be registered on that day. Thus, there is no question that the death has occurred on 26.1.2005. Hence that contention has got to be rejected. 11.Insofar as the contention put forth by the learned counsel for the appellant that in the instant case, there was no dowry demand and there was no evidence at all, the court has to agree with the same. But, at the same time, insofar as the act of causing death by dashing her on the floor and pouring kerosene and setting her ablaze, the available evidence, as narrated above, would be sufficient to indicate the same. Hence it has got to be recorded so. The contentions put forth by the learned counsel for the appellant contrary to the above are to be rejected. Accordingly, they are rejected. 12.Coming to the second line of argument, this court is able to see force in the contention put forth by the learned counsel for the appellant. In the instant case, even after a month from the time of marriage, she was accusing him and called him as impotent and the accused revealed the same to P.Ws.3 and 4. On the https://hcservices.ecourts.gov.in/hcservices/ date of occurrence also, there was a quarrel. From the evidence, it would be quite clear that 1-1/4 sovereigns of gold jewels was originally given to the accused at the time of marriage, but it was pledged by the mother of the deceased. On the date of occurrence, the accused demanded for the return of the jewels, but the deceased without giving proper answer questioned his impotency and naturally, he was provoked and he has acted so. The quarrel and the sudden provocation has resulted in pouring kerosene on her and setting fire. Under these circumstances, the act of the accused was neither intentional nor premeditated. Hence the act of the accused would not attract the penal provision of murder, but it would be one culpable homicide not amounting to murder. Under these circumstances, the act of the accused would attract the penal provision of Section 304(I) IPC and awarding punishment of 7 years R.I. would meet the ends of justice. 13.Accordingly, the conviction and sentence imposed on the appellant under Section 302 IPC are modified and instead the appellant is convicted under Section 304(I) IPC and sentenced to undergo 7 years R.I. The period of sentence already undergone by the appellant is ordered to be given set off. The fine amount and default sentence imposed on the appellant under Section 302 IPC will hold good. The conviction and sentence imposed on the appellant under Section 498-A IPC are set aside and the appellant is acquitted of the said charge alone. The fine amount if any paid by the appellant under Section 498-A IPC shall be refunded to him. It is reported that the appellant is on bail and hence the concerned Sessions Judge shall take steps to secure his presence and commit him to prison to undergo the remaining period of sentence. 14.Accordingly, this criminal appeal is dismissed. vvk Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. THE PRINCIPAL SESSIONS JUDGE, CHENGALPATTU 2. THE INSPECTOR OF POLICE, C.2 SELAIYUR POLICE STATION, CHENNAI. https://hcservices.ecourts.gov.in/hcservices/ 3. THE ADDITIONAL PUBLIC PROSECUTOR HIGH COURT, MADRAS. 4. THE JUDICIAL MAGISTRATE TAMBARAM 5. -DO- THROUGH THE CHIEF JUDICIAL MAGISTRATE CHENGALPATTU. 6. THE SUPERINTENDENT CENTRAL PRISON VELLORE. 7. THE DISTRICT COLLECTOR, KANCHEEPURAM 8. THE DIRECTOR GENERAL OF POLICE CHENNAI 1 cc to Mr.V.Krishnamoorthy, Advocate, SR.62089 KA (CO) dv/14.11. CRL.A.NO.992 OF 2006 https://hcservices.ecourts.gov.in/hcservices/