[2008] 16 S.C.R. 481

,.._--f

STATE OF TAMIL NADU A ("

KARUPPASAMY (Crimi_nal Appeal No. 573 of 2002)

NOVEMBER 20, 2008 B

lit. +

(DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ.]

Penal Code, 1860 - s. 302 - Conviction under - Death c of wife due to burn injuries - Quarrel between the parties over husband's illicit relations - Dying declaration recorded by Magistrate implicating the husband, having poured kerosene on her and setting her ablaze - Evidence of related witnesses as to .declaration by deceased - Conviction by trial court - However, set aside by High Court - Sustainability of - Held: D Not sustainable - High Court discarded the dying declaration recorded by Magistrate as the Magistrate went by the version f of the doctor and did not independently enquire from the deceased whether she was in a fit condition to make statement, which was clearly erroneous - It also discarded the E evidence of other witnesses as also medical officer without giving reasons - Finding that accused brought the intimation from hospital to police station about the incident was contrary

- Thus, order of High Court set aside.

According to the prosecution case, husband of K F

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had illicit relations with P. There were quarrels between the husband and K-wife. On the fateful day, the husband poured kerosene on K and set her on fire. K sustained burn injuries and was taken to the hospital. PW 8-Medical G Officer found extensive burn injuries on the person of K

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and sent intimation to the police as also to the Magistrate.

The Magistrate reached the hospital. PW 8 certified that K was conscious and oriented to give her statement.

Magistrate recorded her statement. PW 12-constable also 481 H

A recorded K's statement. PW-12 then sent intimation through phone to investigating police station.

Subsequently K died. F!R was registered u/s. 302 IPC. The doctor conducted the post mortem and opined that the deceased died due to the burn injuries. Trial court relying B on the oral evidence of PWs 1, 2, 4, 5 and 6-mother, brothers and other's, as to declaration by deceased about the cause of her death implicating the husband and the dying declaration recorded by PW-11-Magistrate, convicted the husband u/s.302 IPC and awarded life c imprisonme, t. However, High Court set aside the conviction a~ th~ prosecution case was full of suspicious circumstanclesi dt discarded the dying declaration recorded by PW 11, evidence of PWs. 1, 2, 3, 4, 5,"6 and

8. It noted that the FIR disclosed that the husband

0 brought the intimation from the hospital to the police.

Hence the: present appeal.

Allowing the appeal, the Court

. HELD: 1.1. The conclusions of the High Court that E PW 11 ~Magistrate should nothave gone by what the doctor said and should have made independent enquiries is an absurd conclusion. It is not understood as to what the High Court meant by observing that PW 11 should have found out from the deceased as to F whether she was conscious, oriented and was in a fit condition to give the statement. The High Court was of the view tht the , evidence of PW 11 shows that her satisfaction was a subjective satisfaction solely on the basis of the opinion of the Doctor. There _is nothing wrong G in such a satisfaction being arrived at because the doctor is an appropriate person to certify on that aspect. (Paras 5, 6 and -7] (488-8-D-E-G]

1.2. High Court recorded the finding that the FIR disclosed that the accused brought the intimation from

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STATE OF TAMIL NADU v. KARUPPASAMY 483

• I'--; the hospital to the police station. The factual position is A clearly to the contrary. The accused did not take the intimation because PW 12 who was working as Grade I constable at the out post police station attached to the medical college hospital received intimation from the hospital. According to PW 12, after receiving the B intimation he went to the hospital, examined the deceased

\ -.+ who was undergoing treatment for burn injuries. The deceased gave the statement regarding the occurrence which was recorded and he sent the intimation through, the phone to the police regarding the substance of the c statement. The High Court also did not assign any reason ! as to why the declaration made before PWs 1, 2, 4, 5 and 6 was unreliable. It discarded the evidence of PW 8-, doctor without even indicating reason for doing so. The trial court had analysed their evidence and come to the D conclusion that the deceased made statement before them as to the cause of death clearly implicating the

~ accused. The High Court's judgment is clearly , unsustainable and is set aside. [Paras 8, 9 and 10] [488-

H; 489-A-D] E

'- CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 573 of 2002.

From the Judgment and final Order dated 27.3.2001 of the High Court of Judicature at Madras in Crl. Appeal No. 734 of F 1992. ·. ,. -..;

S. Thananjayan for the Appellant.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is G

to the judgment of the Division Bench of the Madras High Court 4 directing acquittal of the respondent (hereinafter referred to as the 'accused'). Learned Sessions Judge Tirunelveli, had found the accused guilty of offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') and sentenced H

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> ·,-- I '- A him to imprisonment for life. t- >r-,

2 .. Prosecution version as unfolded during trial is as follows:.

~ '. '. . ,; ' Kamalam is th.e de~~sed in this cas~. She is the dughter B of P.W.2. P.Ws 1, 5 and 6 are the sons of P.W.2 and incidntc:1lly,

th.ey are the brothers of Kamalam. The accused is the husband + )_ of Kamalam. Even prior to their marriage, on account of their

l acquaintance, Kamalam conceived. Thereafter, their marriage t took place. The family of the accused wanted a sum of .. c Rs.4,000/- to be given at the time of their marriage, which was accordingly provided by P .W.1. Six months after their marriage, Kamalam gave birth to a child. The accused had developed an illicit intimacy with a lady called Parvathi. Since Kamalam r objected to it, there were quarrels between the accused and > D Kamalam often. Around 10.00 a.m. on 12.9.1990, P.W.2 was t t in her house. She came to. know that her daughter was in flames. Immediately, P.W.2 went to the house of Kamalam. At , .. that time, P..W.2 found some burn injuries above the hip of her ~· ).- daughter. Kamalam was made to rest on the pial of her house. • • I E PWs.1 and 5 are masons by profession. On that day, they were working in the house of the brother in law of the accused. P.W.2 . ,,. sent word to them about the incident. Immediately, P.Ws 1, 5, 6 and another person went to the house of Kamalam, where they found Kamalam lying on the pial with burn injuries. The

t- F accused was also by her side at that time. When Kamalam was .... asked as to how she came to sustain the burn injuries, she

~-- J replied that, "She objected to her husband's relationship with \ Parvathi; the accused asserted that he would continue to have l such relationship. Whenever she objected to her husband's ' relationship with Parvathi, the accused used to threaten her ) G stating that, he would pour kerosene and 'set fire to her; she ' told her husband that she is prepared even to die for the sake .rof her husband severing his relationship wHh Parvathi; . ~

immediately the accused picked up a kerosene tin; poured \.-- kerosene on her head and set fire to her". P.W. 3 & 4 did not H

STATE OF TAMIL NADU v. KARUPPASAMY 485 l

[DR ARIJIT PASA YAT, J.] '

r ...,( support the prosecution. A taxi was arranged for and in that taxi, A

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Kamalam was transported to the Government Hospital at Palayamkottai. P.Ws 1, 2 and others accompanied Kamalam to the hospital. P .W.8 is the Medical Officer in the Government

Hospital at Tirunelveli. At 12.50 p.m. on 12.9.1990, Kamalam was brought before him and he was informed that she had B come to sustain the burn injuries at the hands of her husband,

.:, --+ by his pouring kerosene and setting fire to her. Kamalam was admitted as an inpatient in the hospital. PW 8 found extensive burn injuries on the person of Kamalam. He sent Ex.P4 to the police. Ex.PS is the intimation sent by him to the Magistrate to c record the dying declaration of Kamalam. P.W.11 is the Trainee Magistrate, who reached the said hospital at 2.00 p.m. on that day. Doctor Kanchana was by the side of Kama lam at that time.

She certified that Kamalam was conscious and oriented to give a statement. He examined Kamalam and recorded her D # statement. Ex.P11 is the dying declaration of Kamalam. In Ex.P.11, Kamalam had put her left thumb impression. P.W.12,

+- on receipt of Ex.P.4/intimation, went to the hospital, examined Kamalam and recorded a statement from her. The statement so reorded from Kamalam was read over to her and after she E affirmed the same, her left thumb impression was obtained on

' it. Ex.P .1 is that complaint. P .W.12, over telephone, sent an -,

intimation regarding the crime to the Investigating Police Station. Accordingly, a Head Constable from the Investigating Police Station came to the police out-post; collected Exs. P.1 F and P.4 and handed over the same to P.W.13. P.W.15 is the ' "'i Sub-Inspector of Police. He collected Exs.P.1 and P.4 from P.W.13 and registered it in Crime No.400/90 for the offence punishable under Section 307 l.P.C. He sent the material records to the Court as well as to the higher officials. Ex.P.12 is the F.l.R. He handed over the material records to the G Inspector of Police personally. Despite treatment given to

j -+ Kamalam, she died at about 7.50 p.m. on 15.9.1990. P.W.9 is the Medical Officer, who sent Ex.P.6 to the police outpost at Tirunelveli. Ex.P7 is the case sheet. On receipt of Ex.P .6, the H

A police out-post at Tirunelveli, passed on that message to the ).;.-~ ·..-- Investigating Police Station over telephone. Ex. P .13 is the death intimation, which was handed-over at the-Investigating Police Station. At 9.00 p.m. on 12.9:1990, after receiving a copy of Ex.P.12,:P.W.17 wenMo the scene; at 10.00p.m: onthat day, B in the presence of P .W:7 and another, he prepared Ex.P .2/ observation rrl'ahazar and Ex.P.17(plan. At 10.30 p.m. on that day, from the scene df occurrence, P.W.17 recovered a plastic -t- ... can contaiing kerosene; a match box and a partly burnt turkey towel (M.Os 1 to 3), under Ex.P.3 attested by witnesses. P.W.17 .c examined P.Ws. 1, 2 and 7 and recorded their statements .

Further witnesses Were examined by him on 13.9, 1990 and their statements. were recorded. On receipt of the death intimation at 7.50 p.m. on 15.9.1990 from P.W.15, P.W.17 altered the section of offence into one under Section 302 LP.C.

D and prepared the altered printed F. I. R. Ex. P~'18 is the altered

F.1.R. It was sent to the 1C0Lirt as well as to the higher officials.

As death had taken place within 1-1 /2 years after the marriage of the accused with thedeceased/Kamalam, a copy of the F.l.R_. was sent to the Revenue Divisional Officer, having jurisdiction.

E P.W.16 is the Revenue Divisional Officer, who on receipt of the ·

~ copy of.the F.l.R. went to the 'hospital :and conducted inquest \ over the dead'body of the deceased between t1 :oo a'. m. and 1.00 p. m. on 16.9.1990: Ex~P.14 is the inquest report. During inquest, P~W.16 examined P.Ws. 1, s, 6 and another and recorded their statements. P .W.17, arrested. the accused on

F 17.9:1990: ' ..

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' .. ,_ . , . . The Doctor who cQnducted post mortem report was of.the opinion tha~ the dceased died du~ to burn .injuries. After completion oHnvestigation charge sheet was. filed. The . G accused pleaded innocence and, therefore, the trial was held .

In his examinatin under. Section 313 of the Code of Criminal

Prcedure; 1973 (in short the 'Code') the. accused took the stand that he. was not in the house when the occurrence took

' ' . . . ' ' . ,, . . place; When he.returned frorp. work place he found his wife with H burn injuries and immediately he rushed her to the hospital. The

,.,--~ prosecution relied on two sets of evidence; one related to the A oral evidence of PWs 1, 2, 4, 5 & 6. Admittedly they were not eye wit_nesses. They have been examined to prove what the deceased declared when she was alive and was fighting for a life, about the cause of her death. The next set of evidence is primarily the dying declaration Ex.P.11 recorded by (PW 11), B

__._ the Magistrate. The Doctor who was attending the decease~ as an indoor patient was by the_ side of the patient all through.

PW 11 's evidence indicated that she was conscious, oriented and was in a fit condition to give the statement. Relying on the aforesaid evidence the Trial Court found the accused guilty. c

-- In appeal the High Court was of the view that PW 11 should, have inquired from the deceased as to whether she was in a fit condition to make the statement. The doctor has not been examined but at the foot of the dying declaration her opinion D was recorded. High Court found that the evidence of PWs. 2, 3, 4, 5 & 6 about the dying declaration was not believable. It ._ also discarded evidence of PW 1 on the ground that he was one of the brothers of the deceased. The Doctor, PW8 had recorded that the deceased's condition was dexterous and the level of consciousness would depend upon several factors.

E Reference was made to the evidence of PW 9 to conclude that the evidence of PW 8 was not free from doubt. The High Court noted that, the FIR (Exh.P12) disclosed that the husband brought the intimation fiOm the hospital to the police. Because

,,._ 'i of the aforesaid factors, the High Court considered the F prosecution version to be full of suspicious circumstances and, as noted above! __ t_h~- acquittal was directed.

3. In supp.o_rfcif--the appeal, learned counsel for the appellant submitted that the analysis made by the High Court G is clearly erroneous. No reason has been assigned to discard the dying declaration. The criticism of the High Court that PW 11 entirely went by the version of the Doctor, should not have been treated as a factor to discard the' testimony of PW 11.

There are certain other factual erroneous conclusions, also.

A 4, The respondent has. not appeared in spite of service of )<;---... , notice.··

; . 5. ThecQf)cl.usions ofthe High.<;; ourt that PW t1 houk; t' not-have gone by .. v; vhat the doc.tor i.e. Dr:. Kanchana said .. and

8 sho'uld have made.1.ndependent.enquiries.' is to say the.least an absurd conc.lusion. The High Court has recorded as f<?llows:

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,_ _ _"His.evidence show~ that Doctor Kanchana; certineq~

that Kamalam was constious oriented and was in a fit condifion to give the statement. Doctor Kanchana was C present by the side of PW 11 throughout. h appears from the evidence of PW 11 that he was totally carried away by .the opini()n qf doctor Kanchana. His ev.idence in chief does not show that he enquired Kama lam to_ find .out as to whether she was conscious oriented and wa_s in a fit D condition to give the statement.".~ .

6: It is.not'understood as to what the High Court meant by. observing. thaf PVV f1 stiould. hav.e found out from the ~- deceased as to whether she was conscious,· oriented and was in .a: fit ccmdition to give th£/sttement The doctor who was E attending. to the deceased has clearly. crtified that she was in

a.fit condition fo. make the statement-The Doctor has made

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the following observation: ·

- . -"Certified that the patient Smt. Kamalam was conscious at the tim~ of taking the dyirig declaration and taken in my presence.''

7. The High Court was of the view that the evidence of PW 11 sh'c:)ws 'that; her satisfaction was a subjective satisfaction G solely On ttie basis of the opinion of the'. Doctor. There is nothing_

wrong in such' a satisfaction being arrived at becausethe_doctor is. an appropriate person to 7ertify on that aspect. 1-r-

8. In addition, we find that the High Court recorded the_ finding that the accused_ brought the intimation from_ the hospital "H to the police station which is Ex.P 12, the FIR. The factual

position is clearly to the contrary. The accused did not tak.e the A intimation because PW 12 who was working as Grade I constable at the out post police station attached to the medical college hospital received Ex. P 4 intimation from the hospital on 12.9.1990 at 1.15 PM.

9. According to PW 12, after receiving the intimation he went to the hospital, examined the deceased who was undergoing treatment for burn injuries. The deceased gave the statement regarding the occurrence which was recorded as Ex.

P 1 and he sent the intimation through the phone to the police C regarding the substance of the statement. The High Court has also not assigned any reason as to why the declaration made before PWs 1, 2, 4, 5 & 6 was unreliable. The Trial Court had analysed their evidence and come to the conclusion that the deceased made statement before them as to the cause of death clearly implicating the accused. Similarly the evidence of the D doctor, PW 8 has been discarded without even indicating reason for doing so.

10. Above being the position the High Court's judgment is clearly unsustainable and is set aside. The respondent shall E surrender to custody forthwith to serve the remainder of sentence. The appeal is allowed.

N.J.

Appeal allowed.