IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:- 06.04.2010 CORAM THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE C.S. KARNAN Crl. A. No.128 of 2010 1. Sathya 2. Balu ... Appellants/Accused No.1 & 2 ..Vs.. State, rep. by Inspector of Police, Kurunchipadi police station. ... Respondent/Complainant Appeal filed against the judgment dated 8.12.2009 passed by the learned District and Sessions Judge, Mahalir Court, Cuddalore in S.C. No.87 of 2009. For Appellant : Mr. C.M. Gunasekaran For Respondent : Mr. V.R. Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 8.12.2009 passed by the learned District and Sessions Judge, Mahalir Court, Cuddalore in S.C. No.87 of 2009, whereby the accused/appellants two in numbers were found guilty under Section 302 read with 34 of the Indian Penal Code and sentenced to undergo Life Imprisonment and to pay a fine of Rs.1,000/- , while the third accused was ordered to be acquitted. 2. The short facts necessary for the disposal of the case can be stated thus: https://hcservices.ecourts.gov.in/hcservices/ (i) P.W.1 is the son of the deceased Amudha. A few days prior to the occurrence, the brother of P.W.1 Kanagavel died by committing suicide by taking pesticide. First accused is the wife of the said Kanagavel and accused 2 and 3 are the parents of the first accused. On the date of occurrence i.e. 14.1.2009 at about 3.00 p.m., the deceased was in her house. At the time, accused 1 to 3 entered into the house and was telling that she was responsible for the death of her son and so saying, the first accused poured kerosene and second accused, father of the first accused, throw a match stick on her. Immediately, she raised a distressing cry and the same was witnesses by P.Ws.1 to 3, who were standing nearby house. (ii) Immediately, P.W.1 took her to the Government hospital, Cuddalore, where she was given initial treatment by Doctor P.W.8 and Accident Register is marked as Ex.P8. After giving initial treatment, she was taken to Government Hospital, Pondicherry, where she was admitted by P.W.9 Doctor on 15.1.2009 and intimation was given to the respondent-police. On receipt of intimation, P.W.13 Head Constable proceeded to the Pondicherry Government Hospital and recorded the statement of the deceased Amudha, which is marked as Ex.P16. On the strength of the same, a case came to be registered in Crime No.12 of 2009 for the offence under Section 307 of the Indian Penal Code against the accused. The First Information Report is marked as Ex.P17. (iii) Thereafter, investigation was taken up by P.W.14 Inspector of Police. He proceeded to the place of occurrence and made an inspection and prepared observation mahazar Ex.P18 and rough sketch Ex.P19. He also recovered M.O.1 plastic cane and M.O.2 match sticks from the place of occurrence under the cover of mahazar Ex.P20. Pending investigation, accused 1 and 3 were arrested on 17.1.2009 and they were sent for judicial remand. (iv) Pending investigation, an intimation was given to P.W.11 Judicial Magistrate No.1, Pondicherry and she proceeded to the Hospital. After certified by P.W.10 Doctor that the deceased was conscious and fit enough to give dying declaration, the Certificate of which is marked as Ex.P11, dying declaration Ex.P13 was recorded by P.W.11 Judicial Magistrate No.I, Pondicherry in the presence of P.W.10 Doctor. Despite treatment, she died on 24th January, 2009. Hence, the case was altered to one under Section 302 of the Indian Penal Code. The amended First Information Report Ex.P21 was despatched to the Court. https://hcservices.ecourts.gov.in/hcservices/ (v) The further investigation was taken up by P.W.15 Inspector of Police. He conducted inquest on the dead body and the inquest report is marked as Ex.P22. Thereafter, he sent the dead body for conducting post-mortem and Doctor P.W.7 conducted autopsy and issued post-mortem Certificate Ex.P7 and Ex.P8 final opinion, where he opined that the deceased died due to septicemia due to the burn injuries. He examined the witnesses and recorded their statements. 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 15 witnesses and relied on 22 documents and also relied on M.Os.1 and 2. 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 scrutinising the materials available on record, found the accused 1 and 2 guilty under Section 302 read with 34 of the Indian Penal Code and awarded the punishment referred to above and acquitted the third accused. Hence this appeal is filed at the instance of the appellants/accused 1 and 2. 5. Advancing arguments on behalf of the appellants, learned counsel would submit that in the instant case, the prosecution had no direct evidence. The prosecution relied on the circumstantial evidence only. Pursuant to the statement given by the deceased Amudha to P.W.13 Head Constable at about 11 p.m. on 15.1.2009 at the Government Hospital, Pondicherry, a case came to be registered. Subsequently, there was a dying declaration recorded by P.W.11 Judicial Magistrate on 16.1.2009 in the presence of P.W.9 Doctor and thus, two dying declarations were actually relied upon by the prosecution. The Trial Court has accepted the same to sustain conviction. 6. Learned counsel, while attacking that part of the evidence, submitted that the earliest document comes into existence is Ex.P8 Accident Register. Even as per the prosecution case, immediately after the occurrence, the deceased Amudha was taken to the Government Hospital, Cuddalore, where she was given initial treatment and Accident Register is marked as Ex.P8, where it has been certified that she was conscious and it was a case of self immolation https://hcservices.ecourts.gov.in/hcservices/ by pouring kerosene on herself. P.W.8 Doctor in the cross examination, has categorically admitted that the deceased was conscious. In a given case like this, the usual presumption was to know from the patient and record the same. It was stated that she was conscious and it was a case that she attempted to commit suicide. No reason is putforth by the prosecution to disbelieve this part of evidence. 7. Learned counsel further added that P.W.1 has categorically admitted that the police came to the place of occurrence and he also accompanied Amudha, who was taken to the Government Hospital, Cuddalore. He went to the Kurinchipadi police and gave a complaint. This complaint has been suppressed by the prosecution. On a perusal of this complaint, which was, according to P.W.1, given to Kurichipadi police, coupled with the statement, it is quite clear that it was a self act committed by the deceased. 8. Learned counsel added further that though the occurrence had taken place at 3 p.m. on 14.01.2009 and P.W.1 went to Kurinchipadi police and gave complaint on the same day, the prosecution relied on the statement Ex.P16 alleged to have been given by the deceased to P.W.13 Head Constable after thirty hours at the Government Hospital, Pondicherry. It is true that it is not only delay but the delay is long way and thus, the deceased was tutored. Apart from that, P.W.11 Judicial Magistrate recorded the dying declaration in the presence of Doctor P.W.10 on 16.01.2009. The intervening circumstance is that she was actually tutored by her relations, who are interested in the property. The earliest statement given by the deceased to P.W.13 Head Constable and also dying declaration Ex.P13 to P.W.11 Judicial Magistrate, all put together, it would clearly indicate the discrepancy on the major particulars and it is quite clear that it is a clear tutored version. Even P.W.3 has categorically admitted that the deceased was more worried about her son, since few days prior to the occurrence, her son committed suicide. Therefore, they have been protecting and safeguarding her on the fear that the deceased may commit suicide. Under the circumstances, it is quite clear that it is a self act, in which accused 1 and 2 had no role to play. 9. Learned counsel added further that admittedly the family of the deceased had owned properties. If the accused persons are put inside, there would not be any demand of the property. Hence, the deceased was tutored to give false version insofar as dying declaration is concerned. Under such circumstances, it cannot be stated that the prosecution has brought home the guilt of the accused. The appellants are entitled for acquittal, but the Trial Court has taken an erroneous view. Learned counsel prays for acquittal of the appellants in the hands of the Court. https://hcservices.ecourts.gov.in/hcservices/ 10. This Court heard the learned Additional Public Prosecutor on the above contentions. 11. This Court paid its anxious considerations on the above contentions. It is not in controversy that one Amutha, mother of P.W.1, following the incident that had taken place on 14.1.2009 at 3.00 p.m., was taken to the Government Hospital, Cuddalore and was given initial treatment and thereafter, she was taken to the Government Hospital, Pondicherry and despite treatment, she died on 24.1.2009. Though originally a case was registered under Section 307 of the Indian Penal Code, it was subsequently altered to one under Section 302 of the Indian Penal Code. Following the inquest made by P.W.15 Inspector, P.W.7 Doctor conducted autopsy and issued post- mortem Certificate Ex.P7 and Ex.P8 final opinion, where he opined that the deceased died due to septicemia due to the burn injuries. The prosecution was successful enough to prove the fact that as a direct consequence of burn injuries sustained by the deceased, she died. 12. In order to substantiate the charge levelled against the prosecution, the prosecution has mainly relied on two dying declarations alleged to have been given one to P.W.13 Head Constable, on the strength of which a case came to be registered by the respondent-police and the second dying declaration given by the deceased to P.W.11 Judicial Magistrate on 16.1.2009. It is true, there are two pieces of declarations relied on by the prosecution. It is well settled principles of law that before accepting the same, the Court has to see the attendant circumstances, whether that dying declaration could have been given voluntarily or it has been tutored. Under the circumstances, following circumstances are noticed by the Court. 13. The occurrence had taken place at 3 p.m. on 14th January, 2009. Few days prior to the occurrence, the deceased Amudha lost her another son. She was actually much worried about the same. They were under the impression that the deceased might commit suicide. On the date of occurrence, P.W.1 and others heard the distressing cry and immediately she was taken by P.W.1 to the Government Hospital, Cuddalore. P.W.8 Doctor, who was on duty at the Government Hospital, Cuddalore, admitted her immediately and gave initial treatment. Accident Register is marked as EX.P8 and the Doctor, who gave treatment, has categorically admitted that the deceased was conscious and it was she, who poured kerosene on her and set ablaze. https://hcservices.ecourts.gov.in/hcservices/ 14. At this juncture, it is pertinent to point out that P.W.1 and others have categorically admitted that the police came to the spot immediately after the occurrence. At the time of cross- examination, P.W.1 has admitted that after taking his mother Amudha to Government Hospital, Cuddalore, he went to Kurinchipadi police station and gave a complaint. It is pertinent to point out that had the occurrence taken place as per the complaint given by P.W.1 on the very date of occurrence, it would have been registered or atleast the said complaint given by P.W.1 would have been produced before the Court. On the contrary, the prosecution relied on Ex.P16, which according to the prosecution was given by the deceased to P.W.13 Head Constable at 11 p.m. on 15.1.2009 i.e. after thirty hours of the occurrence. Ordinarily, the delay in lodging the complaint by itself cannot be a reason to reject the prosecution case. In the instant case, while P.W.1 and others have well admitted that the police came to the place of occurrence immediately after the occurrence and only thereafter, P.W.1 went to Kurinchipadi police station and gave the complaint. But, the complaint Ex.P16, which came into existence after thirty hours, go a long way to doubt the prosecution case. 15. Added further, P.W.11 Judicial Magistrate recorded dying declaration on 16th January, 2009. It is true, it was done in the presence of P.W.10 Doctor. He has also certified that the deceased was conscious at the time of giving dying declaration. It is pertinent to point out that the deceased was conscious at the time when the statement Ex.P16 was recorded by P.W.13 Head Constable and also Dying declaration Ex.P13 recorded by P.W.11 Judicial Magistrate. At the time when she gave the earlier version in the Government Hospital, Cuddalore and the contents of Ex.P8 recorded by P.W.8 Doctor also goes to show that she was very much conscious at that time also. Under these circumstances, the earliest document given to P.W.8 Doctor should not be viewed with suspicion. The Court is unable to see any reason for the delay of thirty hours in giving complaint. The suppression of first complaint, which, according to P.W.1, was given to Kurinchipadi police and the delay in recording the complaint Ex.P16 by P.W.13 after thirty hours and the dying declaration Ex.P13 given to P.W.11 Judicial Magistrate, all would clearly indicate the fact that there are intervening circumstances. Further, the learned counsel brought to the notice of the Court that there were family properties and hence, P.W.1 and others should have tutored the deceased. In such circumstances, the Court is able to see a discrepancy in both the documents viz. Ex.P16 complaint given to P.W.13 Head Constable and Ex.P13 dying declaration given to P.W.11 Judicial Magistrate as to the narration of the incident. https://hcservices.ecourts.gov.in/hcservices/ 16. Now at this juncture, it remains to be stated that in a given case like this, when two dying declarations are there and they are not free from suspicion and doubt, the Court cannot enter conviction. All these doubts are reasonable doubts. In the absence of explanation from the prosecution, the Court is unable to act on the so called dying declaration. The prosecution has not brought home the guilt of the accused. They are entitled for acquittal. 17. Accordingly, the criminal appeal is allowed, setting aside the judgment dated 8.12.2009 passed by the learned District and Sessions Judge, Mahalir Court, Cuddalore in S.C. No.87 of 2009. The appellants viz. Sathya and Balu are directed to be set at liberty forthwith unless their presence is required in connection with any other case. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ssa. To 1. The District and Sessions Judge, Mahalir Court, Cuddalore. 2. The Judicial Magistrate No.3, Cuddalore. 3. -Do- Through The Chief Judicial Magistrate, Cuddalore. 4. The Superintendent, Central Prison, Cuddalore. 5. The District Collector, Cuddalore. 6. The Director General of Police, Madras – 4. 7. The Inspector of Police, Kurunchipadi Police Station 8. The Public Prosecutor, High Court, Madras. + 1 cc to Mr.C.M.Gunasekaran, Advocate Sr 22390 Crl. A. No.128 of 2010 JRG (CO) RH (20.4.10) https://hcservices.ecourts.gov.in/hcservices/