IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 19.07.2011 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN CRL. A. NO. 677 OF 2010 Amirthavalli .. Appellant/Sole Accused - Vs - State rep. by The Inspector of Police Namagiripet Police Station Namakkal District. .. Respondent/Complainant Appeal preferred against the conviction and sentence passed by the learned Principal Sessions Judge, Namakkal, made in S.C. No.78 of 2009 dated 31st Aug., 2010. For Appellant : Mr. B.P.Mohan For Respondent : Mr. V.M.R.Rajendran, APP JUDGMENT M.SATHYANARAYANAN, J. The appellant is the accused in S.C. NO.78/09 on the file of the Principal Sessions Judge, Namakkal. She was charged for the alleged commission of the offence punishable u/s 302 r/w 34 IPC. The trial court, vide judgment dated 31st Aug., 2010, convicted and sentenced her to undergo life imprisonment together with a fine of Rs.5,000/= with a default sentence of two months. The trial court further ordered to set off the period of incarceration already undergone by appellant u/s 482 Cr.P.C. Aggrieved by the said conviction and sentence passed by the trial court, the appellant has preferred this appeal. 2. The facts in a nutshell are as follows :- The deceased, Ganesan, is the husband of the accused, Amirthavalli. The case of the prosecution is that the deceased was addicted to alcohol and used to have illicit relationship with other women and enraged over the same, the appellant, along with her elder son, namely, Manju @ Akilarasan (juvenile accused), by tying the hands and legs of the deceased, while he was asleep under the influence of alcohol, on the night of 13th April, 2009 / early morning https://hcservices.ecourts.gov.in/hcservices/ hours on 14th April, 2009, poured petrol over the deceased Ganesan and set him on fire. The deceased, on account of the injuries sustained by him, died at abut 9.45 a.m. on 15th April, 2009 at the Government Mohan Kumaramangalam Hospital at Salem. 3. P.W.9 was the Special Sub-Inspector of Police attached to Namagiripettai Police Station. While he was on duty, he received intimation from Rasipuram Police Station at about 7.00 a.m. on 14th April, 2009, about the occurrence and he immediately went to the Government Mohan Kumaramangalam Hospital at Salem and recorded the statement of Ganesan, the deceased, who was admitted as an in-patient and, thereafter, came back to the police station and registered a case in Crime No.206/09 at abut 11.00 a.m. u/s 307 IPC. The statement given by the deceased was marked as Ex.P-11, subject to objection raised on behalf of the accused. The printed FIR was marked as Ex.P- 10. P.W.9, on registration of the FIR, dispatched copies of the same along with the complaint to the jurisdictional Magistrate and copies were also forwarded to his superior officials. P.W.9, thereafter, proceeded to the scene of occurrence at Kuttaikarai Colony, Vadugam Village and prepared the rough sketch, Ex.P-12. P.W.9, in the presence of P.W.4 and another prepared the observation mahazar, Ex.P-3 and recorded the statement of some of the witnesses and he placed the case file before the Inspector of Police. 4. P.W.10 was the Inspector of Police of Namagiripettai Police Station, who on receipt of the case files from P.W.9 took up further investigation. On receipt of the death intimation, Ex.P-9, on 15th April, 2009 at about 9.45 a.m., he altered the section from one under Section 307 IPC to 302 IPC and submitted a report, Ex.P-13, to the court of Judicial Magistrate, Rasipuram. 5. P.W.10 took up further investigation and in the presence of witnesses conducted inquest on the body of the deceased between 1200 hours and 1300 hours on 15th April, 2009 and prepared the inquest report, Ex.P-14. P.W.10 proceeded to the scene of occurrence and recorded the statement of P.W.9 and since he repeated the events that took place after the registration of FIR, P.W.10 did not record any separate statement from others. P.W.10, through secret investigation, got information with regard to the truthfulness of the events that took place on the night hours on 13/14th April, 2009 and fixed the appellant, the wife of the deceased and Manju @ Akilarasan, the son of the deceased as the perpetrators of the crime. P.W.10 arrested both the accused in the presence of P.W.7 and another and each of them voluntarily gave a confession statement. The admissible portion of the confession statement given by the accused, Amirthavalli is marked as Ex.P-7, based on which the matchbox, M.O.8, used to set the deceased on fire was recovered from below the roof of the house of the accused. Pursuant to the admissible portion of the confession statement given by the juvenile accused, Manju @ Akilarasan, the son of the deceased, a petrol can was recovered. P.W.10 also recovered M.O.s 1 to 7 and the material objects were sent to the jurisdictional court in Form-95, which is marked as Ex.P-16. The accused were sent to judicial custody. https://hcservices.ecourts.gov.in/hcservices/ 6. P.W.10 made a requisition to conduct post-mortem on the body of the deceased. On receipt of the requisition, P.W.6, the Tutor of Forensic Medicine attached to the Salem Government Hospital, conducted post-mortem on the body of the deceased Ganesan at about 3.10 p.m. on 15th April, 2009. P.W.6 noted the following physical features on the body of the deceased :- “Injuries :- 1. Dermo Epidermal burns with reddish zone of inflammation seen over scalp, face, both ears, front, sides and back of neck, upper part of front and whole of back of chest and abdomen, both shoulders and both upper limbs, both axilla, both lower limbs, external genitalia and both gluteal region. Eyebrows, eyelashes, scalp hair, axillary hair and pubic hair- signed. (Ante mortem burns). 2. Rope mark contusions with serrated margins seen over both wrists and both ankles – encircling the entire circumference of 2 to 3 cms. Width (Ante mortem). Other Findings :- 1. O/D Head : Scalp intact, cranial valut – intact, Brain – C/S congested. Base of skull – intact. 2. O/D Neck : Neck structures – normal. Hyoid bone : Intact. Soot particles seen in the congested mucosa of trachea. 3. O/D Thorax : No ribs fracture. Lungs C/S congested and edematous. Heart : Normal in size. Chambers contained fluid blood. Myocardium – Normal. Coronaries – Patent. 4. O/D Abdomen : Stomach : 65 ml of yellowish green coloured fluid with no specific smell. Mucosa C/S – congested. Liver, Spleen and both Kidneys – C/S congested. Bladder – Empty. Genitalia no other injures made out. Pelvis and Spinal column – intact.” P.W.6 opined that the deceased died due to the effects of burns about 5 to 6 hours prior to autopsy. 7. P.W.10, thereafter, examined the Assistant Director of Forensic Lab at Coimbatore and her report was marked as Ex.P-17. P.W.10 also examined P.W.s 6, 7, the Presiding Officer of the Juvenile Court, P.W.9 and other witnesses and prepared the draft charge sheet and after obtaining the opinion from the public prosecutor, filed the charge sheet against the accused charging her with the commission of the offence u/s 302 r/w 34 IPC. 8. The court of Judicial Magistrate, Rasipuram, took the charge sheet filed by P.W.10 on file and issued summons to the accused/appellant and on her appearance, furnished copies u/s 207 Cr.P.C. Since the case was exclusively triable by the Sessions Court, the learned Judicial Magistrate, Rasipuram, committed the case to the Principal Sessions Court at Namakkal, which on receipt of the same in S.C. No.78/09, framed the charge u/s 302 r/w 34 IPC against the https://hcservices.ecourts.gov.in/hcservices/ accused and questioned her. The accused pleaded not guilty of the charge framed against her. 9. The prosecution, in order to sustain their case, examined P.W.s 1 to 10 and marked Exs.P-1 to P-17 and also marked M.Os. 1 to 7. The accused was questioned u/s 313 Cr.P.C. as to the incriminating circumstances made out against her in the evidence adduced by the prosecution witnesses and she denied it as false. The accused has also filed her written statement dated 8th July, 2010, u/s 233 (2) Cr.P.C. stating among other things that she has nothing to do with the alleged commission of the offence and she and her son (juvenile accused) had been falsely implicated. On behalf of the accused, D.W.1 was examined and Exs.D-1 and D-2 were marked. 10. The trial court, on consideration of oral and documentary evidence and the material objects, found the accused guilty for the commission of the offence u/s 302 IPC and imposed the sentence of imprisonment together with fine as stated above. Aggrieved against the said conviction and sentence, the present appeal has been preferred by the appellant. 11. Mr. B.P. Mohan, learned counsel appearing for the appellant made the following submissions :- The earliest statement recorded from the deceased, while he was alive at Rasipuram Government Hospital, in the presence of P.W.2, the casualty Medical Officer attached to the said hospital, has been burked by the prosecution. The presence of the alleged eye witnesses, The testimony of P.W.1, who was also related to the deceased and P.W.3 are highly doubtful and there are many discrepancies found in their oral testimony, which are fatal to the case of the prosecution. According to the prosecution, before pouring petrol on the deceased, Ganesan, his hands and legs were tied with a rope, but however, no burn marks were found on the ropes, which were marked as M.O.5 series. P.W.1, who was also present in the scene of occurrence immediately after the commission of the crime, and who accompanied the injured Ganesan to the hospital, has not spoken about the presence of P.W.5 and, therefore, the testimony of P.W.5 that on hearing the information she went to the Government Hospital at Salem where the deceased gave the oral dying declaration to her cannot be believed t all. It was the admitted case of the prosecution that the whole body of the accused was burnt and if that be so, it is not made clear as to how the left hand thumb impression of the deceased was taken on Ex.P-11, the statement recorded by P.W.9. The arrest and recovery spoken to by P.W.7 is highly artificial and the recovery of M.O.7, matchbox below the roof of the house belonging to the appellant is also highly doubtful and not at all believable. 12. It is the further submission of the learned counsel for the appellant that Ex.P-11, the statement said to have been given by the deceased to P.W.9, the Special Sub-Inspector of Police attached to Namagiripettai Police Station contains very minute details. It is submitted that admittedly even as per the case of the prosecution, the deceased suffered 90% burn injuries and, therefore, it would not have https://hcservices.ecourts.gov.in/hcservices/ been possible to give such a kind of statement with such minute details. It is further contended by learned counsel for the appellant that as could be seen from Ex.P-11, the sister of the deceased, P.W.5 was also present and the possibility of tutoring the deceased cannot also be ruled out. It is also stated in Ex.P-11 that since the injured Ganesan was unable to put his thumb impression, with the help of P.W.5 he put the thumb impression in Ex.P-11, which cannot be believed at all for the reason that since it is a medico-legal case and that the patient being kept in the burns ward, it could not have been possible for the injured to get the assistance of P.W.5 to affix his thumb impression in Ex.P-11. 13. It is the further submission of the learned counsel for the appellant that the testimony of P.W.9, Special Sub Inspector of Police, who recorded Ex.P-11, would clearly reveal that the time at which he has recorded Ex.P-11 has not been stated in Ex.P-11 and further P.W.9 has not spoken about the presence of P.W.5 at the time of recording Ex.P-11 and, therefore, the said document is a concocted one so as to enable the prosecution to register the FIR. 14. Learned counsel for the appellant also drew the attention of this Court to the testimony of D.W.1, the daughter of the appellant and the deceased, wherein she has clearly spoken about the actual events that took place and her presence at the scene of occurrence and her presence at the time of admission of the injured in the Government Hospital, Rasipuram, has also been spoken to by P.W.s 1 and 3, the alleged eye witness and, therefore, her testimony carries greater weight and the same has not been considered in the proper perspective by the trial court. It is the further submission of the learned counsel for the appellant that the investigation has been done in the most perfunctory manner and though defective investigation, per se, will not lead to the acquittal of the accused, the investigation done by P.W.10 bristles with many infirmities and inconsistencies and, therefore, the trial court ought to have awarded the benefit of doubt to the accused and acquitted her. Therefore, for the above said reasons, learned counsel for the appellant prays for setting aside the conviction and sentence and to acquit the appellant. 15. Per contra, learned Addl. Public Prosecutor, submitted that the testimony of the eye witnesses, P.W.s 1 and 3 are cogent, trustworthy and corroborate with each other with regard to the overt act on the part of the appellant and it was amply corroborated through the oral dying declaration of the deceased marked as Ex.P-11 recorded by P.W.9 coupled with the evidence from the testimony of P.W.s 2 and 8 and Ex.P-6, post-mortem certificate. It is the further submission of the learned Addl. Public Prosecutor that the prosecution, through the testimony of witnesses and exhibits and material objects, had clearly proved the case beyond reasonable doubt against the accused and, hence, prayed for dismissing the appeal by confirming the conviction and sentence awarded by the trial court. 16. This court has bestowed its best attention to the submission made by the learned counsel for the appellant and the learned Addl. https://hcservices.ecourts.gov.in/hcservices/ Public Prosecutor and also perused the testimony of witnesses and the exhibits to which attention was specifically drawn. 17. According to P.W.1, who is a neighbour of the deceased, there used to be frequent quarrels between the appellant and the deceased. P.W.1 had further deposed that at about 11.45 p.m. on 13/14th April, 2009, he heard a sound and, thereafter, he went outside and at that time one Thangaraj and P.W.3 also came there and they saw the son of the deceased pour something from a can on the deceased, while the deceased was sleeping on the mat and he also found that the hands and legs of the deceased were tied. Further evidence of P.W.1 is that when the deceased questioned his son about the pouring of petrol, immediately the appellant set him on fire and on seeing the incident all of them raised alarm. P.W.s 1, 3 and others tried to save the deceased and the son of the appellant (juvenile accused) told them that it is his family problem and nobody need to interfere in it. Subsequently, the fire was doused and the two-wheeler belonging to the deceased (M.O.1) was also burnt. Immediately, all of them, including the appellant, her son, her daughter, D.W.1 and P.W.3 took the deceased to the Government Hospital, Rasipuram. In the cross- examination, P.W.1 has deposed that at about 3.00 a.m. on 13/14th April, 2009, they admitted the injured Ganesan at the Government Hospital, Rasipuram and at about 3.30 a.m. the police came and he also told the police as to the events that took place and the police also examined the appellant as well as her son (juvenile accused) and their statements were also recorded by the police. P.W.1 has further deposed that at that time P.W.3 and Thangaraj were also present. It was further deposed by P.W.1 in cross examination that he returned to his home at about 5.00 a.m. on that day and at about 10.30 a.m. or 11.00 a.m., police came to the spot and at that time about 300 to 400 persons were present and at the scene of occurrence they found a partially burnt mat (M.O.3), bed sheet (M.O.4) and rope (M.O.5) and other articles. P.W.1, however, denied the suggestion that he is a friend of P.W.3 and since the tractor owned by Ganesan, the deceased, was driven by P.W.3 and was involved in an accident there was some animosity. P.W.1 had also admitted that the deceased Ganesan was also related to him so also P.W.3 and Thangaraj. It was admitted by P.W.1 that though he along with P.W.3 and others accompanied the injured Ganesan to the hospital, they did not lodge any complaint and he also went to the Salem Government Hospital at about 3.30 p.m. 18. P.W.3 was examined by the prosecution to corroborate the version of P.W.1 and according to the prosecution, P.W.3 is also an eye witness to the occurrence. In the cross examination, P.W.3 deposed that he is also related to the deceased Ganesan and his house is about ¼ km away from the house of P.W.1. P.W.3 has further deposed that with regard to the quarrel that took place in the house of the deceased, he informed the police that it took place between 11.30 p.m. and 12.00 midnight on 13/14th April, 2009. In his evidence P.W.3 has further deposed that the police did not come to the Government Hospital at Rasipuram and that he did not accompany the injured to the hospital. However, he admitted in chief examination that while the injured Ganesan was taken to the Salem Government Hospital, the https://hcservices.ecourts.gov.in/hcservices/ injured was accompanied by P.W.3, the appellant, his son (juvenile accused), D.W.1 and P.W.1 and police did not accompany the injured in the ambulance and even after admission in the Government Hospital, Salem, police did not come there and the injured was admitted only by the appellant. 19. Attention of this Court was drawn to the evidence of P.W.s 1 and 3 to show that their testimonies are contrary to each other and they would not have been present at the time of the occurrence. Our attention was further drawn to Ex.P-12, the rough sketch, wherein the house of P.W.1 is shown to be situated about 75 feet away on the western side from the house of the deceased and in the sketch, the house of P.W.3 has not at all been shown. It was further submitted that P.W.1 had deposed that he had not informed the police about the incident, though admittedly he was related to the deceased. Even as per his own testimony, at the time of admitting the injured Ganesan at the Government Hospital, Salem, the police also came. 20. It is the further case of the prosecution that according to P.W.3, at the time of admission of the injured at the Government Hospital, Rasipuram, police did not come and though he has deposed that he did not accompany the injured to the Government Hospital, Rasipuram, In the later part of the cross-examination P.W.3 has stated that he accompanied the injured along with the appellant, her son (juvenile accused), D.W.1 (daughter of the appellant) and Premkumar (P.W.1), but the police did not accompany them. Drawing attention to the relevant portion of the testimony of P.W.s 1 and 3, learned counsel for the appellant submitted that there is a vital discrepancy with regard to the presence of the appellant at the time of admitting the injured at the Government Hospital, Rasipuram and in support of this submission, he referred to the testimony of P.W.2. 21. P.W.2 was the casualty medical officer attached to the Government Hospital, Rasipuram, who in her chief examination has deposed that while she was on duty at about 2.45 a.m. on 13th April, 2009, Ganesan (deceased) was brought by his wife (appellant) and she was that at about 1.30 a.m. on 13th April, 2009, two unknown persons poured kerosene upon the deceased and set him on fire. P.W.2 further deposed that at the time of admission Ganesan was in conscious state of mind and since he suffered 90% burn injuries, he was referred to the Government Hospital, Salem, and the accident register is marked as Ex.P-1 and her opinion for referring him to the Government Hospital, Salem was marked as Ex.P-2. In the cross examination, P.W.2 has deposed that what was written in Ex.P-1 was as per the statement given by the deceased Ganesan and she has admitted that if a person suffered 90% burn injury, it is mandatory to record the dying declaration, but she has not given intimation either to the police or to the judicial magistrate. It was also admitted by P.W.2 that police had come to the Government Hospital, Rasipuram, and they also examined the injured Ganesan in her presence. 22. It is the further submission of the learned counsel for the appellant that according to the testimony of P.W.s 1 and 2 immediately https://hcservices.ecourts.gov.in/hcservices/ after admission of the injured Ganesan at the Government hospital, Rasipuram, police came and recorded the statement of Ganesan in their presence and the said information was the first information and it could be taken as oral dying declaration also, but the said material document has been deliberately burked by the prosecution and instead Ex.P-11, said to have been recorded by P.W.9, has been put in service to assist their case. 23. Attention of this Court was drawn to the testimony of P.W.9, the Special Sub-Inspector of Police attached to Namagiripettai Police Station at the relevant point of time. In the chief examination, P.W.9 has deposed that while he was on duty at about 7.00 a.m. on 14th April, 2009, he received intimation from Rasipuram Police Station and on receipt of the same, he proceeded to the Government Hospital, Salem and recorded the statement of the injured Ganesan, who was admitted as an in-patient and, thereafter, he came back to the police station and registered the FIR at about 11.00 a.m. in Crime No.206/09 for an offence u/s 307 IPC. The statement given by the injured Ganesan to P.W.9 was marked as Ex.P-11 subject to objection and the FIR is marked as Ex.P-10. P.W.9 has further deposed in chief examination that after registration of FIR, he proceeded to the scene of occurrence and prepared the rough sketch, Ex.P-12 and also prepared the observation mahazar, Ex.P-3. In cross-examination, P.W.9 deposed that on receipt of wireless message from Rasipuram Police Station, he recorded the same by making entry and he also received information from Rasipuram Government Hospital with regard to the admission of the injured, Ganesan, and, therefore, he went to the Government Hospital. It was admitted by P.W.9 in cross examination that at the time of recording the statement of the injured, Ganesan, marked as Ex.P-11, at about 9.00 a.m. on 14th April, 2009, medical officers were not present and he did not question the doctors as to the percentage of burn injuries suffered by the injured Ganesan. It was further admitted by P.W.9 that he had recorded the statement of the injured Ganesan. It was the further admission of P.W.9 that he did not register any express FIR and the FIR was received by the jurisdictional Magistrate Court at about 7.45 p.m. on 15th April, 2009 and he did not personally write Ex.P-3, observation mahazar, but he recovered M.O.3 (mat), M.O.5 (rope) and M.O.2 (motor bike) and the availability of M.O.s 2, 3 and 5 had been stated in the mahazar. P.W.9 had further deposed that M.O.5, rope, was found in burnt condition and he did not prepare the recovery mahazar and apart from the witnesses present in the scene of occurrence, he did not examine anyone and that he handed over the investigation on 14th April, 2009, to P.W.10, the Inspector of Police attached to Namagiripettai Police Station. 24. Reference was made by learned counsel for the appellant to Exs.P-3 and P-4, the observation mahazar and recovery mahazar, to show that the same would disclose that Exs.P-3 and