Bail Slip The appellant/Accused -2 namely Sethuraman was directed to be released on bail as per the order of this Court dt.3.1.2007 and made in M.P.No.1/2007 in Crl.A.No.7/2007 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.01.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal Nos.6 & 7 of 2007 Parimala @ Parimala Gandhi Appellant (A1) in W/o Ganesan .. Crl.A.No.6 of 2007 Sethuraman Appellant (A2) in S/o Packrisamy .. Crl.A.No.7 of 2007 -vs- State rep.by Deputy Superintendent of Police Tiruvarur Town Police Station Tiruvarur Respondent in (Crime No.496 of 2004) .. both the Crl.As. Memorandum of Grounds of Criminal Appeals under Section 374(2) of the Criminal Procedure Code against the judgment dated 5.12.2006 made in S.C.No.92 of 2005 on the file of the learned District & Sessions Judge, Nagapattinam. For Appellants :: Mr.V.Gopinath Senior Counsel for Mr.K.Srinivasan in Crl.A.No.6 of 2007 Mr.K.Srinivasan for Mr.G.Saravanan in Crl.A.No.7 of 2007 For Respondent :: Mr.P.Kumaresan Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT D.MURUGESAN, J. The appellant in Crl.A.No.6 of 2007 by name Parimala @ Parimala Gandhi, arrayed as A-1, was put on trial in S.C.No.92 of 2005 on the file of the learned District & Sessions Judge, Nagapattinam and was found guilty, convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for six months for the offence under Section 302 IPC. 2. The appellant in Crl.A.No.7 of 2007 by name Sethuraman, arrayed as A-2, was also put on trial in the same sessions case and was found guilty, convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/- in default to undergo three months rigorous imprisonment for the offence under Section 498(A) IPC and to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,000/- in default to undergo three months rigorous imprisonment for the offence under Section 4 of Dowry Prohibition Act and the sentence of imprisonment imposed on him is to run concurrently. 3. Both the appellants (who will be hereinafter referred to as "A-1 and A-2") were put to face the trial on the following prosecution case:- The deceased-Jansi Rani is the wife of A-2. A-1 is the wife of A-2's elder brother. Both the deceased and A-2 got married on 29.10.2001. After the marriage, they started residing at Vijayapuram Mettupalayam, Tiruvarur. Out of wedlock, a male child was born and on the date of occurrence, the child was two years old. At the time of marriage, a demand for 25 sovereigns of jewels and Rs.1,50,000/- was made. However, 15 sovereigns of jewels and household articles valued at Rs.30,000/- were given. As the remaining jewels and cash were not given, there were frequent demand of dowry by A-2 and as the husband of A-1, who is none other than the elder brother of A-2, was working in Malaysia, A-2 developed illicit intimacy with A-1 and at the instigation of A-1, the deceased was driven away from the house. Hence the deceased started living with her mother. A-2 did not even visit the deceased or his child for over a period of two years as the demand of dowry was not fulfilled. Therefore, on the fateful day i.e., on 15.11.2004, the deceased as well as P.Ws.1,4 & 6 went to the house where A-1 and A-2 were living and at about 5.00 p.m., A-1, after questioning the deceased as to how she could come there, poured kerosene and set her on fire after scolding. At that time, A-2 was also present and had stated that unless the deceased is killed, he could not live peacefully. Hence both A-1 and A-2 were charged for the offence of murder and A-2 was also charged for the demand of dowry and harassment. 4. Immediately after the occurrence, the deceased was taken to Tiruvarur Government Hospital by P.W.4-Kannan, the brother of the https://hcservices.ecourts.gov.in/hcservices/ deceased, and was first seen by the doctor, P.W.2 at 5.20 p.m. The deceased had told the doctor that A-1 poured kerosene and set her on fire at around 5.00 p.m., on the same day. P.W.2 has issued the accident register, Ex.P-2 at 5.20 p.m. Thereafter, intimations were sent to the learned Judicial Magistrate, Tiruvarur, P.W.15 and to the police under Exs.P-3 & P-4 by P.W.2. 5. P.W.14, the Sub Inspector of Police attached to Tiruvarur Town Police Station, on receipt of intimation, reached the hospital at 5.30 p.m., and recorded the statement of the deceased under Ex.P- 1, which was certified by the doctor, P.W.2. She returned to the police station at 7.00 p.m., and registered a case in Cr.No.496 of 2004 for the offence under Section 307 IPC and forwarded the report to P.W.16, the Inspector of Police for further investigation. The printed First Information Report is Ex.P-10. 6. P.W.15, the Judicial Magistrate, Tiruvarur in-charge, on receipt of intimation, went to the hospital and, after following the procedures and after ascertaining the fit state of mind of the deceased from the doctor, P.W.2, recorded the dying declaration, Ex.P-5 between 8.45 p.m., and 9.15 p.m. P.W.2 has also certified that the deceased was conscious and oriented throughout the period of recording of the dying declaration. 7. In the meanwhile, P.W.16, the Investigating Officer, went to the scene of occurrence at about 8.00 p.m., on 15.11.2004 and prepared the Observation Mahazar, Ex.P-11 and also drew rough sketch, Ex.P-12 in the presence of P.Ws.10 & 11. He also seized the plastic can, M.O.1, Match box, M.O.2 and the partly burnt portion of the saree, M.O.5 under the mahazar, Ex.P-13 in the presence of the same witnesses. He examined the mahazar witnesses and other witnesses and recorded their statements. As he received intimation from the Government Thanjavur Medical College & Hospital that the deceased had died at 12.30 a.m., on 16.11.2004, he altered the offence to one under Section 302 IPC and sent the altered report, Ex.P-15 to the Court as well as to the higher police officials. Thereafter, he went to Government Thanjavur Medical College and Hospital and conducted inquest on the body of the deceased between 8.30 a.m., and 10.30 a.m., in the presence of relatives of the deceased and prepared the inquest report, Ex.P-16. As the deceased had died within three years of her marriage, he sent a requisition to the Revenue Divisional Officer, Thanjavur for conducting inquest. 8. P.W.5, the Revenue Divisional Officer, went to the hospital on 16.11.2004 at 12.00 noon and conducted inquest on the body of the deceased and prepared the inquest report, Ex.P-8. He thereafter sent the body of the deceased through the Grade I Police Constable along with a requisition, Ex.P-6 to the medical team for conducting post- mortem. He examined the witnesses and sent his report, Ex.P-9 to the Deputy Superintendent of Police. 9. P.W.3, Professor, along with Dr.R.Sugumar, Tutor, Department of Forensic Medicine attached to Thanjavur Medical College & Hospital, on receipt of requisition and the body at 1.45 p.m., on https://hcservices.ecourts.gov.in/hcservices/ 16.11.2004, commenced post-mortem at 2.10 p.m., and they noted the following:- "(1) Dermo-epidermal burns noted all over the body surface except over the lower part of sternal region, waist line of front of abdomen and external genitalia - total amounting to 97% of burns. (2) Peeling of the cuticles, reddening of the skin, with evidence of carbonisation noted over the burns affected areas. (3) Singeling of scalp hair, eyebrows, eye lashes and axillary hair noted. All the above mentioned injuries are antemortem in nature. They issued the post-mortem certificate, Ex.P-7 with their opinion that the deceased would appear to have died due to the effects and complications of extensive burns. 10. P.W.16, continuing with his investigation, examined P.Ws.1,4,6 and other witnesses in the hospital and recorded their statements. He returned to Tiruvarur and recorded the statements of P.Ws.9 to 11. He arrested A-1 and A-2 near the Tiruvarur bridge on 17.11.2004 at the evening hours and recorded their confessional statements in the presence of the witnesses namely, Nagarajan and Manoharan, Village Assistant. He brought A-1 and A-2 to the police station and remanded them to judicial custody. He sent the seized material objects for chemical examination through the Court under the requisition, Ex.P-17. He handed over the investigation to P.W.17 as he was transferred. 11. P.W.17, the Deputy Superintendent of Police, took up investigation in this case on 22.11.2004. He went to Government Thanjavur Medical College & Hospital on the same day and examined the doctor, P.W.2 and recorded his statement. On 2.12.2004 he examined P.Ws.1,4,12 and other witnesses at Tiruvarur and recorded their statements. As the deceased had died due to dowry demand and harassment, he altered the offence to one under Sections 498(A), 302 and 304-B IPC and sent the altered report, Ex.P-18 to the Court. He went to the hospital on 14.12.2004 and examined the post-mortem doctors and recorded their statements. He examined the photographer, P.W.8 and P.W.14, the Sub Inspector of Police and other witnesses on 28.12.2004 and recorded their statements. After completing investigation, he laid the final report on 31.1.2005 against A-1 and A-2 before the Court. 12. The prosecution, in order to prove its case, examined 17 witnesses, marked 20 exhibits and produced 5 material objects. 13. When A-1 and A-2 were questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against them, they denied each and every incriminating material as false. No witness was examined and no document was marked on the side of the defence. However, the learned trial Judge found A-1 and A-2 https://hcservices.ecourts.gov.in/hcservices/ guilty, convicted and sentenced them for the offence as stated earlier, but acquitted A-2 of the charge of murder. 14. Mr.V.Gopinath, learned senior counsel appearing for A-1 in Crl.A.No.6 of 2007 has submitted that there are two dying declarations namely, Ex.P-1 recorded by P.W.14, the Sub Inspector of Police and Ex.P-5 recorded by P.W.15, the Judicial Magistrate and there are lot of contradictions in both the dying declarations. He would submit that while in Ex.P-1, the deceased has mentioned the presence of A-2 as well as the witnesses namely, P.Ws.1,4 & 6 and has implicated only A-1, strangely, in Ex.P-5, she has not mentioned the presence of either A-2 or the witnesses-P.Ws.1,4 & 6, but has implicated the other family members of A-2 as well for the cause for the occurrence. She has also strangely implicated the husband of A-1 for financing A-1 and A-2 for the commission of the offence. In view of the above, the evidence of P.Ws.1,4 & 6 as to the occurrence cannot be believed, as they have been brought at a later point of time only to speak about the occurrence. The learned senior counsel would further submit that even in respect of the place of occurrence, there are contradictions, as it is the case of the prosecution that A-1, after pouring kerosene and setting the deceased on fire, had pushed the deceased outside the house and locked the door and if that be so, P.Ws.1,4 & 6 could not have witnessed the pouring of kerosene, as they came after the quarrel between A-1 and the deceased which took place inside the house. The said contradiction relating to the manner in which the occurrence had taken place throws serious doubt about both the dying declarations and therefore they should not be believed. Equally when the contradictions are vital and materially affect the prosecution version, it is unsafe to rely upon the dying declarations. 15. He would also submit that in Ex.P-2, the accident register issued by P.W.2, it is stated that the deceased was brought by one Kannan, P.W.4. On the other hand, in Ex.P-4, the Magistrate intimation book, it is stated that the deceased was brought by one Ganesan. He would also submit that even in the original of Ex.P-2, it is stated that the assailant is her husband's elder brother's wife. This overwriting and the different names have not been explained, which goes to the veracity of Exs.P-2 and P-4. He would also submit that at the time when the statement of the deceased in Ex.P-5 was recorded by P.W.15, the relatives were present and therefore there could have been a possibility of tutoring. He would further submit that the deceased had sustained 100% burns and therefore it would be only a case of self-immolation and not as put forth by the prosecution. He would therefore submit that if the evidence of P.Ws.1,4 & 6 are eschewed, the conviction and sentence on A-1 cannot be sustained, as it is only on the basis of the dying declarations which are contradictory to each other. 16. Mr.K.Srinivasan, learned counsel appearing for A-2 in Crl.A.No.7 of 2007 has submitted that there is absolutely no evidence to the demand of dowry and harassment by A-2. He would submit that in the event the evidence of P.Ws.1,4 & 6 is eschewed, then, there is no evidence whatsoever to sustain the conviction and sentence on A-2. https://hcservices.ecourts.gov.in/hcservices/ 17. On the other hand, Mr.P.Kumaresan, learned Additional Public Prosecutor would submit that the occurrence had taken place at 5.00 p.m., on 15.11.2004 and immediately the deceased was taken to the hospital by P.W.4 and the deceased had informed the doctor, P.W.2 at 5.20 p.m., that A-1 poured kerosene and set her on fire and therefore she sustained injuries. He would submit that the accident register, Ex.P-2 issued by the doctor, P.W.2 proves the statement of the deceased. He would also submit that when the intimation in Ex.P- 3 was sent to the police, P.W.14 came to the hospital at 6.00 p.m., and recorded Ex.P-1 from the deceased. Thereafter also, pursuant to the intimation in Ex.P-4, the Judicial Magistrate, P.W.15 came to the hospital and recorded the dying declaration, Ex.P-5. In all these statements, the deceased has consistently implicated A-1 for having poured kerosene and setting her on fire. He would further submit that the presence of plastic can, M.O.1 and the match box, M.O.2 in the place of occurrence would also go to show that it is not a case of self-immolation, but it is a case of murder. He would also submit that P.W.6 is an independent witness who has spoken about the occurrence. His evidence corroborates the evidence of P.W.1 as well as P.W.4. The learned Additional Public Prosecutor would also submit that so far as A-2 is concerned, the evidence of P.Ws.1,4 & 6 is categorical as to his involvement in the crime apart from the demand of dowry and harassment. Hence the judgment of the Court below needs no interference. 18. We have considered the rival submissions very carefully. The prosecution case mainly rests on the dying declarations namely, Exs.P-1 and P-5. The law as to how the prosecution case put forth on the basis of dying declaration should be considered has been dealt with by the Supreme Court in the judgments in Jai Karan v. State of Delhi (NCT) (1999 SCC (Crl.) 1385) and in P.V.Radhakrishna v. State of Karnataka (2003 SCC (Crl.) 1679). In Jai Karan's case, the Supreme Court has laid down the following law in paragraph 10: "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 https://hcservices.ecourts.gov.in/hcservices/ 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." 19. In P.V.Radhakrishna's case, the Supreme Court has laid down the law in paragraphs 11 & 12 as follows:- "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 and 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...." https://hcservices.ecourts.gov.in/hcservices/ 20. In Thurukanni Pompiah and another 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 had no opportunity to test its veracity by cross examination. Further, a note of caution has been added by the Supreme Court that 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. 21. A dying declaration is admissible in evidence as any other evidence in terms of Section 32 of the Indian Evidence Act. Though a dying declaration is entitled to great weight, 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 Court must satisfy itself that the dying declaration was not as a result of either tutoring or prompting or a product of imagination and the deceased was in a fit state of mind to give such a declaration. The credibility of a dying declaration does not depend upon the number of dying declarations nor on the length of statements made by the deceased. 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. 22. It has been strenuously argued that in the wake of vital contradictions, the dying declarations cannot be believed. To decide as to whether the dying declaration, Ex.P-1, which is treated as complaint, and the dying declaration, Ex.P-5 recorded by the Magistrate could be believed to sustain the conviction and sentence, it is necessary to discuss the circumstances under which both the statements were recorded. The occurrence had taken place at about 5.00 p.m., on 15.11.2004. The deceased was immediately taken by P.W.4, the younger brother of the deceased, to Tiruvarur Government Hospital. P.W.2, the doctor attached to the said hospital, has first seen the deceased at 5.20 p.m., and issued the accident register, Ex.P-2. It is seen from the said accident register that the deceased was brought by P.W.4-Kannan. It is also stated that the deceased was set on fire by A-1 after pouring kerosene. But in the Police/Magistrate intimation book, it is mentioned that the deceased was brought by one Ganesan. Much was argued that in view of the discrepancy in the names as to who had brought the deceased, the accident register must be disbelieved. We have perused the originals of Exs.P-2 & P-4. In Ex.P-2 the name of Kannan has been written in English. However, in Ex.P-4, the name of the person is written in Tamil and therefore it is apparent that the name of Kannan in Ex.P-4 was wrongly written as Ganesan, which is only a minor contradiction. We have our own reason for such conclusion namely, in Ex.P-4, an endorsement is made by the doctor that the deceased sustained injury https://hcservices.ecourts.gov.in/hcservices/ due to pouring of kerosene and setting her on fire by A-1. Both Exs.P-2 and P-4 refer A-1 for the alleged cause of pouring kerosene and setting fire on the deceased. Both these documents came into existence just within twenty minutes of the occurrence. It is argued that the doctor, P.W.2 has not mentioned in Exs.P-2 and P-4 to the effect that the statements were made by the deceased and therefore, these statements cannot be treated as dying declarations. We do not find any force in the said submission. It must be kept in mind that the deceased had sustained 100% burns and was taken to the hospital and endorsements were made by the doctor as to the cause for the burns. Of course, the doctor is expected only to save the life of the injured and not to make any entries as to the cause for the occurrence, particularly, in respect of the names of the assailants. But when a statement recorded by the doctor turns out to be the dying declaration in view of the fact that the author of the statement had died subsequently, such statement can also be considered to be one of dying declaration. Therefore the failure on the part of the doctor to make any endorsement to the effect that the statement was given by the deceased or not will not make any impact on the credibility of the statement given to the doctor. In this context, the evidence of P.Ws.2 & 3 are referable. P.W.2 in his evidence before the Court has specifically stated that the endorsement in Ex.P-2 was made only on the basis of the statement of the deceased. Hence, Ex.P-2 could be considered to be the dying declaration given by the deceased for the first time to the doctor. It has been settled in law that even a dying declaration given to the doctor can