IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 13.12.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice C.S. KARNAN Crl. A. No.679 of 2010 Sivalingam ... Appellant ..Vs.. State by Inspector of Police, Valangaiman Police Station. ... Respondent (Cr.No.76/2007) Appeal filed against the judgment dated 25.6.2009 passed by the Sessions Court, Tiruvarur in S.C. No.35 of 2009. For Appellant : Mr. R. Rajarathinam For Respondent : Mr. V.R. Balasubramanian, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) This appeal challenges the judgment dated 25.6.2009 passed by the Sessions Court, Tiruvarur in S.C. No.35 of 2009, whereby the the first accused/appellant stood charged for the offence under Section 302 of the Indian Penal Code while the other accused shown as second accused stood charged for the offence under Section 302 read with 34 of the Indian Penal Code and on trial, the accused/appellant was found guilty as per the charge of murder and awarded with the punishment to undergo Life Imprisonment and to pay a fine of Rs.10,000/- in default to undergo Rigorous Imprisonment for one year, while the other accused was acquitted of the charges. 2. The short facts necessary for the disposal of the case can be stated thus:- https://hcservices.ecourts.gov.in/hcservices/ (i) P.Ws.1 and 2 are the parents of the deceased Revathy. P.W.4 is the paternal uncle of the accused/appellant. P.Ws.1 and 2 were residing in Painganattu village. The deceased Revathi was given in marriage to the first accused/appellant 1 1/2 years ago and they were having a child. From the time of marriage, they were living in Tiruppur. The deceased suspected that her husband/first accused had illicit intimany with one Kala. Often, they were quarreling and she used to come to the house of P.Ws.1 and 2. (ii) Five days prior to the occurrence, the deceased came to the house of P.Ws.1 and 2 and all of them went to the marriage at Alangudi. When they came to know about the strained relationship of the appellant with one Kala, they called the appellant and advised him. On 27.5.2007 at about 8.00 a.m., when the deceased was in the house of P.W.4 along with accused 1 and 2, the second accused took kerosene and handed over to the first accused and instigated him to set fire. Accordingly, the first accused/appellant poured kerosene on her and set her ablaze. She possessed burn injuries all over the body. P.W.5 also witnessed the occurrence. (iii) Immediately, P.W.5 and others took her to the Government Hospital, Kumbakonam where, P.W.10 Doctor gave initial treatment at about 9.45 a.m. and Accident Register is marked as Ex.P9. On receiving intimation from the Government Hospital, P.W.11 Judicial Magistrate went to the Hospital and after being satisfied that her mental condition is alright, recorded the statement of the deceased and dying declaration is marked as Ex.P11. (iv) On intimation, P.W.16 Sub Inspector of Police proceeded to the Government Hospital and recorded the statement of the victim, which was marked as Ex.P1, on the strength of which, a case came to be registered in Crime No.76 of 2007 for the offence under Section 307 of the Indian Penal Code and First Information Report Ex.P19 was despatched to the Court. On receipt of the copy of the First Information Report, P.W.18 Inspector of Police took up investigation, proceeded to the spot, made an inspection and prepared Ex.P4 Observation Mahazar and Rough sketch Ex.P23. He recovered M.O.1 saree, M.O.2 blouse from the place of occurrence under the cover of mahazar Ex.P2. (v) Thereafter, P.W.18 proceeded to the Government Hospital and recorded the statement of the victim and interrogated all the witnesses. Pending investigation, the first accused was arrested in the presence of P.W.8 Village Administrative Officer. On arrest, the first accused/appellant gave confession statement https://hcservices.ecourts.gov.in/hcservices/ voluntarily and the same was recorded in the presence of witnesses and admissible portion of the same is marked as Ex.P24. Following the same, he produced M.O.3 kerosene bottle and the same was recovered under the cover of mahazar Ex.P25 in the rpesence of witnesses. Thereafter, he was sent for judicial remand. (vi) The victim was actually discharged from the hospital on 11.7.2007 and afterwards, she died on 25.8.2007. On coming to know about this, P.W.18 Inspector of Police altered the case to one under Section 302 of the Indian Penal Code and amended First Information Report Ex.P21 was despatched to the Court. Since she died within seven years of marriage, the Revenue Divisional Officer was requested to conduct an enquiry. P.W.13 Revenue Divisional Officer conducted inquest on the dead body in the presence of witnesses and inquest report is marked as Ex.P14. (vii) Thereafter, the dead body was subjected to autopsy. P.W.12 Doctor conducted autopsy on the dead body and issued post- mortem Certificate Ex.P13 where he has opined that the deceased would appear to have died of septicemia due to burn injuries. The other witnesses were examined and their statements have been recorded. All the material objects were subjected to chemical analysis and chemical analysis report is marked as Ex.P17. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. 3. In order to substantiate its case, the prosecution examined 18 witnesses and relied on 25 documents and also relied on M.Os.1 to 3. On completion of examination of witnesses on the side of the prosecution, when the accused were questioned under Section 313 of the Criminal Procedure Code, they denied them as false. No witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found the first accused/appellant guilty under Section 302 of the Indian Penal Code and awarded the punishment as referred to above. Hence this appeal is filed at the instance of the appellant. However, the learned Trial Judge has acquitted the second accused. 5. Advancing arguments on behalf of the appellant, learned counsel would submit that in the instant case, the prosecution has miserably failed to prove its case. The occurrence has taken place at about 8 a.m. and the prosecution has marked Ex.P9 Accident Register in respect of the injuries sustained by the deceased. It was actually recorded by P.W.10 Doctor. A perusal of Ex.P9 Accident Register would clearly indicate that it was the act https://hcservices.ecourts.gov.in/hcservices/ of self immolation. There is no reason as to why the earliest document, which came into existence and relied on by the prosecution, should be rejected. It is quite clear that it is an act of self immolation by the victim. 6. Learned counsel added further that Ex.P11 Dying Declaration was recorded by P.W.11 Judicial Magistrate, Kumbakonam at 10.55 a.m. The contents in the Dying Declaration are contrary to the earlier document Ex.P9. Hence, Ex.P11 Dying declaration should not be given any evidentiary value. Learned counsel added further that the statement given by the deceased to P.W.16 Sub Inspector of Police was recorded at 4.15 p.m., which has come into existence after she was admitted by P.Ws.1 and 2. Hence, the same shall not be given effect at all. 7. Learned counsel added further that in the instant case, admittedly, the deceased was admitted in the Government Hospital on the very date of occurrence on 27.5.2007 and she was under treatment till 11.7.2007, the date on which she was discharged from the hospital since she was completely cured and she returned home, but she died on 25.8.2007 only, i.e. nearly 45 days later. It is true, the inquest was conducted by P.W.13 Revenue Divisional officer and inquest report Ex.P14 has also been prepared by him. The report would clearly indicate that it was not the dowry death. 8. Learned counsel added further that after conducting autopsy, P.W.12 Doctor has given his categorical opinion in Ex.P13 Post-mortem Certificate that the deceased died out of septicemia due to burns. It is pertinent to point out that from the period when the deceased was given treatment till the time of discharge, either the case diary or the case records pertaining to the treatment was not produced. On the contrary, P.W.12 Doctor has given opinion in the post-mortem Certificate that the deceased died out of septicemia. Under the circumstances, the case would not attract the penal provisions of murder. Learned counsel would further add that from the above, it is evident that it was the deceased, who poured kerosene on her and set her ablaze. 9. This Court heard the learned Additional Public Prosecutor on the above contentions. 10. This Court paid its anxious considerations on the above contentions. As could be seen above, originally the case was registered under Section 307 of the Indian Penal Code by P.W.16 Sub Inspector of Police, on the strength of Ex.P1 complaint given by the deceased on the very date of occurrence namely 27.5.2007. She was given treatment in the Government Hospital from 27.5.2007 to https://hcservices.ecourts.gov.in/hcservices/ 11.7.2007, when she was discharged from the Hospital. Afterwards, she was staying in her house. Thereafter, she died on 25.8.2007 i.e. nearly 45 days thereafter. The evidence given by P.W.12 Doctor and also the contents of Ex.P13 post-mortem Certificate would reveal that she died out of septicemia due to burn injuries. Under such circumstances, a duty is cast upon the prosecution to place all the medical records in respect of the treatment given to her in order to bring home the guilt of the accused, but the prosecution failed to do so. 11. In the instant case, the prosecution had no direct evidence, but relied on the dying declaration given by the deceased. The earliest document is the Accident Register Ex.P9, which, in the considered of the Court, cannot be given any evidentiary value at all. She was taken from the place of occurrence and admitted in the Hospital by P.W.4, who is the paternal uncle of the accused. It was his statement that it was the self immolation and the same was recorded by P.W.10 Doctor. Hence, that document cannot be looked into with any consequence. 12. P.W.11 Judicial Magistrate, after receiving intimation, went to the Hospital and recorded the statement of the deceased after being satisfied that she was in fit and conscious state of mind to give the dying declaration. Accordingly, it was recorded after following the procedural formalities. A perusal of Ex.P11 Dying declaration coupled with Ex.P1 complaint, which was given by her at about 4.15 p.m, on the strength of which, a case came to be registered, it would indicate that it was he, who poured kerosene on the deceased and set fire. It is pertinent to point out that she actually possessed burn injuries and she was taken to the Hospital and she was given treatment for a long period. Thereafter, she was properly discharged from the hospital. It was also spoken to by the medical person. Thereafter, after lapse of 45 days, she died on 25.8.2007. 13. At this juncture, it is pertinent to point out that the medical opinion canvassed through P.W.12 Doctor and the contents of post-mortem Certificate Ex.P13 relied on by the prosecution has played a vital role. As stated above, the prosecution was duty bound to place the case records and also the case sheet pertaining to the treatment given to the deceased to substantiate their case that as a direct consequence of burn injuries, she died. On the contrary, the post-mortem Cetificate given by the Doctor is that she died of septicemia out of burn injuries. As rightly pointed out by the learned counsel for the appellant, the penal provision of murder would not be attracted and therefore, the act of the accused would attract the penal provision of section 326 of the Indian Penal Code and awarding punishment of 5 years Rigorous Imprisonment would meet the ends of justice. https://hcservices.ecourts.gov.in/hcservices/ 14. Accordingly, the conviction and the sentence imposed on the appellant under section 302 of the Indian Penal Code alone are modified and instead the appellant is convicted under section 326 of the Indian Penal Code and sentenced to undergo 5 years Rigorous Imprisonment. The period of sentence already undergone by the appellant is ordered to be given set off. The fine and default sentence imposed by the trial court under Section 302 of the Indian Penal Code will hold good. 15. With the above modification in conviction and sentence, this criminal appeal is disposed of. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. ssa. To 1. The District Munsif-cum- Judicial Magistrate, Papanasam. 2. The Chief Judicial Magistrate Thiruvarur. 3. The Principal Sessions Judge, Thiruvarur. 4. The Superintendent, Central Prison, Trichy 5. The Inspector of Police, Valangaiman Police Station. 6. The District Collector, Vellore. 7. The Director General of Police, Madras – 4. https://hcservices.ecourts.gov.in/hcservices/ 8. The Public Prosecutor, High Court, Madras. Copy to The Section Officer Criminal Section, High Court, Madras 1 cc to Mr.R. Rajarathinam, Advocate, Sr. 88935 Crl. A. No.679 of 2010 PA (CO) kk 4/1 https://hcservices.ecourts.gov.in/hcservices/