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2003 DIGILAW 1053 (MAD)

M. Sagubar Sathik v. State rep. by Inspector of Police

2003-07-15

A.S.VENKATACHALA MOORTHY, S.SARDAR ZACKRIA HUSSAIN

body2003
Judgment :- A.S.VENKATACHALAMOORTHY, J. The learned Principal Sessions Judge, Ramanathapuram found the appellant/accused guilty under Section 302 I.P.C. after due trial in S.C.60 of 1997 for causing the murder of his wife by name Banumathi in the mid night of 27/28.8.1996 by pouring kerosene and setting fire on her and sentenced him to undergo life imprisonment. The said judgment of the learned Sessions Judge is under challenge in this appeal. 2. The case of the prosecution as borne out from the oral and documentary evidence can be summarised as under: (a) The deceased was having intimacy with the accused Sagubar and that he would stay in her house and pay for her family expenses. The accused had a suspicion that the deceased was having illicit intimacy with some others. The accused had been quarreling with the deceased for about a month prior to the occurrence and used to even beat her. The deceased tried to explain to the accused that even though she was leading an immoral life prior to her coming into contact with the accused, now she had corrected herself. (b) On 27.8.1996 in the afternoon at about 2.00 p.m. the accused sent provisions so also kerosene in a five litre can through one Nazar. The deceased went out and came back in the night. The accused came to the house at about 10.30 p.m. and as usual picked up quarrel with the deceased. Thereafter, she persuaded him to cool down and in fact they had their dinner and slept. Suddenly in the night, the deceased feeling the heat of fire, got up and realised that she was already in flames. When she woke up, she saw the accused standing with Kerosene Can and in fact he shouted at her in vulgar terms and poured kerosene on her. The deceased immediately fell down and rolled on the floor. The hut also got fire. Seeing this, the accused ran away from the hut. The deceased immediately came out of the house and jumped into the nearby well to save herself. When she came back, she saw the hut had already been reduced by flames. The neighbours Backianathan PW-1, Thangavelu PW-2 and others put saree on the deceased. The deceased then dressed herself and proceeded to the Government Hospital at Mandapam Camp. (c) PW-6 was the Doctor attached to the Government Hospital, Madapam Camp at the relevant time. When she came back, she saw the hut had already been reduced by flames. The neighbours Backianathan PW-1, Thangavelu PW-2 and others put saree on the deceased. The deceased then dressed herself and proceeded to the Government Hospital at Mandapam Camp. (c) PW-6 was the Doctor attached to the Government Hospital, Madapam Camp at the relevant time. At about 1.30 hours on 28.8.1996, the deceased came alone and informed the Doctor that her husband poured kerosene on her and set fire. The Doctor found that the deceased sustained 70% burn injuries. The Doctor immediately gave necessary treatment and advised her to go to the Head Quarters Hospital for further treatment. Ex.P-4 is the copy of the accident register issued by PW-6 Doctor. (d) PW-10 was the Sub-Inspector of Police, attached to Mandapam Police Station. On the basis of information, he proceeded to the Government Hospital, Mandapam Camp at about 2.10 a.m. on 28.8.1996 and recorded the statement from the injured, which is marked as Ex.P-9. On the basis of the said statement, he registered crime No.282 of 1996 under Section 307 and 436 I.P.C. (e) PW-8 is the Doctor attached to the Government Hospital, Ramnad. At about 12.12.p.m. on 28.8.1996, he saw the injured and admitted her in the FS ward. The Doctor noted that the patient was conscious and answering to the questions. The Doctor also noted burn injuries to the extent of 70%. As the Doctor felt that a dying declaration has to be recorded, an intimation was sent to the Judicial Magistrate. (f) PW-9 P.Ganesan was then working as Judicial Magistrate No.2, Ramanathapuram. He received the intimation from the hospital to record the dying declaration from the injured at 12.40 p.m. Thereafter, he proceeded to the hospital for the purpose of recording her dying declaration. After ascertaining that the patient was conscious and she was in a position to give declaration, he recorded the dying declaration between 12.55 and 1.25 p.m. Ex.P-8 is the dying declaration recorded by PW-9. The casuality Medical Officer of the hospital was throughout present and he also made necessary endorsement in the dying declaration. (g) PW-11 was the Inspector of Police at Mandapam Police Station at the relevant time. The casuality Medical Officer of the hospital was throughout present and he also made necessary endorsement in the dying declaration. (g) PW-11 was the Inspector of Police at Mandapam Police Station at the relevant time. On receipt of information he proceeded to the Government Hospital, Mandapam Police Station and obtained copy of the F.I.R. At about 5.00 a.m. on 28.8.1996, he proceeded to the Government Hospital and recorded the statement of the deceased. At 6.30 a.m., he visited the scene of occurrence and prepared Ex.P-11 observation mahazar and Ex.P-12 rough sketch. From the scene of occurrence, he seized burnt nylon saree, jacket and other material objects under mahazar Ex.P-13. (h) On 4.9.1996 the Inspector of Police received death intimation from the Government Hospital, Ramnad. The crime was altered into one as Section 302 I.P.C. and the Inspector of Police prepared express report. He then conducted inquest over the body of the deceased in the presence of Panchayatdars and prepared Ex.P-14 inquest report. He then made necessary requisition to the Doctor to conduct post mortem. (i) PW-7 is the Doctor then attached to Government Hospital, Ramanathapuram, who on the basis of requisition from the Inspector of Police, commenced post mortem at 4.30 p.m. on 4.9.1996 and issued Ex.P-6 post mortem certificate. In the said certificate, the Doctor has made the following notings, "Injuries Extensive burns involving almost the whole body except both legs with yellowish necrotic fowl smelling slough, hairs partially charred. Eyelids closed, tongue inside, jaws clenched, teeth complete, thorax scaphoid, mammary glands normal, extremities empty. Internal examination Abdomen uniform. Thorax: No fracture, ribs, pleure and pericardium pale. Heart chambers empty. Lungs pale. No foreign body. Larynx – No fracture, hyoid bone. Stomach empty with 100 ml. digestive juice, pancreas, liver, spleen pale. Gall bladder full. Omentum, mesentry, kidney, intestine pale. Bladder empty. Uterus: enlarged to 12 -14 weeks. On cut section 12-14 weeks size. Dead foetus seen inside. Pelvis no fracture. Head: No fracture, skull membranes pale. Spinal column intact." The Doctor had opined that the deceased would appear to have died of septicemic shock due to extensive burns at FSW, GH Ramnad on 4.9.1996 at 10 a.m. (j) The Inspector of Police thereafter proceeded with examination of other witnesses and after completing the investigation, filed his final report on 30.11.1996. 3. Spinal column intact." The Doctor had opined that the deceased would appear to have died of septicemic shock due to extensive burns at FSW, GH Ramnad on 4.9.1996 at 10 a.m. (j) The Inspector of Police thereafter proceeded with examination of other witnesses and after completing the investigation, filed his final report on 30.11.1996. 3. When questioned under section 313 of Code of Criminal Procedure, the accused flatly denied everything and pleaded that he has noting to do with the occurrence. 4. PW-7 is the Doctor who had conducted post mortem on the body of the deceased and issued Ex.P-6 post mortem certificate. We have already referred to the injuries, which he found on the body of the deceased by extracting the relevant portions from the post mortem certificate. Both in the said certificate and in his deposition the Doctor has clearly opined that the deceased would appear to have died of septicemic shock due to extensive burns. 5. Now the question is as to whether it was the accused who poured kerosene and set fire on the deceased. 6. Two witnesses examined viz., Pws.1 and 2, who are supposed to speak as to what happened immediately after the accused setting fire on the deceased, but have turned hostile. There are no eye witnesses to the occurrence. Thus, this is the case of circumstantial evidence. The Court has to see whether the circumstances relied on by the prosecution are proved and whether those proved circumstances lead to the one and only irresistible conclusion that it was the accused who was solely responsible for the death of the deceased. 7. The circumstances relied on by the prosecution are, (a) Dying declaration made by the deceased to the Judicial Magistrate PW-9 on 28.8.1996 at 12.55 p.m. (b) The statement made by the deceased to PW-6 Doctor. (c) The statement of the deceased made on 28.8.1996 at 2.45 hours at Government Hospital, Mandapam camp to PW-10 Sub-Inspector of Police. (d) The failure on the part of the accused to explain as to what happened on the fateful night. Let us proceed to consider the circumstances one by one. 8. The deceased was first treated at the Government Hospital, Mandapam Camp. Thereafter she was referred to the Government Head Quarters Hospital, Ramnad. The Doctor at the Government Hospital, Ramnad first saw the deceased at 12.20 hours on 28.8.1996. Let us proceed to consider the circumstances one by one. 8. The deceased was first treated at the Government Hospital, Mandapam Camp. Thereafter she was referred to the Government Head Quarters Hospital, Ramnad. The Doctor at the Government Hospital, Ramnad first saw the deceased at 12.20 hours on 28.8.1996. The Doctor felt that a dying declaration has to be recorded from the deceased and consequently sent a memo to the Judicial Magistrate for that purpose. PW-9 was the then Judicial Magistrate No.2, Ramnad, who received the intimation from the Doctor at 12.40 hours on 28.8.1996. Then PW-9 proceeded to the hospital and recorded Ex.P-8 dying declaration from the deceased. It could be seen from the said dying declaration that the Magistrate first revealed his identity to the deceased. Thereafter he put some more questions to find out whether the deceased was in a position to understand the questions and answer them and only then he recorded the dying declaration. Before the Magistrate, the deceased had stated that there was a quarrel between herself and her husband at about 8.00 p.m. and thereafter they took their dinner and slept. She woke up in the mid night and realised that her husband poured kerosene on her and set her on fire. She had also specifically stated that the accused thereafter ran away. Of course, the learned counsel for the appellant/accused pointing out the wordings, "vdf;F bjhpahky; rha;e;J vd;kPJ jP gpoj;Jtpl;lJ" would contend that the accused did not set her on fire. We find it difficult to accept this submission for two reasons. Firstly, she has clearly stated that the accused had already poured kerosene on her, obviously the purpose could only be to set her on fire. In the concluding sentence, she has specifically stated that "10 ehshf jpdKk; rz;il. mjdhy; ,g;go bra;Jtpl;lhh;". From this it could be seen that what the deceased meant was, not only the accused pouring kerosene on her but also setting her on fire. The earlier wordings "vdf;F bjhpahky; rha;e;J vd;kPJ jP gpoj;Jtpl;lJ" is nothing but an half-hearted attempt to save her husband if possible. We have no hesitation whatsoever to come to the conclusion that the deceased had clearly conveyed that it was the accused, who poured kerosene on her and set her on fire. 9. The deceased first straight went to the Government Hospital, Mandapam Camp. There she was treated by PW-6 Doctor. We have no hesitation whatsoever to come to the conclusion that the deceased had clearly conveyed that it was the accused, who poured kerosene on her and set her on fire. 9. The deceased first straight went to the Government Hospital, Mandapam Camp. There she was treated by PW-6 Doctor. The Doctor has clearly deposed that the deceased came there at 1.30 hours on 28.8.1996 and told him that she came all alone and that her husband poured kerosene on her and set on fire. The Doctor treated her and also advised her to proceed to the Government Hospital at Ramanathapuram. Ex.P-4 is the accident register issued by PW-6. If we peruse the same, we could see that the Doctor noted that she came alone. The Doctor has also written therein as under, "Said to have occurred burns when her husband burnt her by pouring kerosene and burnt her hurt at 12.30 a.m on 28.8.1996 at her house." The Doctor has been cross examined by the defence, but nothing has been elicited from him which would persuade this Court to discredit his evidence. Hence, this Court is inclined to accept the testimony of PW-6 and also Ex.P-4 accident register issued by PW-6. 10. PW-10 is the sub-Inspector of Police, attached to Mandapam Police Station. He received information from the Government Hospital, Mandapam Camp about the occurrence and thereafter he proceeded to the hospital and reached there at 2.10 hours on 28.8.1996. He enquired the deceased and recorded her statement. On the basis of the said statement, he registered crime No.282 of 1996 under Section 307 and 436 I.P.C. Ex.P-9 is the said statement. In the said statement also deceased has clearly stated as to what happened on the fateful night. She has stated that on 27.8.1996, though there was quarrel at about 8.00 p.m., then things cooled down and both of them took their dinner and slept. In the midnight when she could feel heat, she woke up and found that the accused had poured kerosene on her and set fire. PW-10 has been subjected to cross examination and we do not find anything therein, which would persuade this Court to reject his testimony. 11. Yet another important circumstance this Court has to take note of is, admittedly the deceased and the accused were residing in the same hut. PW-10 has been subjected to cross examination and we do not find anything therein, which would persuade this Court to reject his testimony. 11. Yet another important circumstance this Court has to take note of is, admittedly the deceased and the accused were residing in the same hut. When questioned under Section 313 Crl.P.C., the accused has not come forward to give any explanation. We make it clear that we are not pointing out that the accused had failed to prove his case, but what we are pointing out is that the accused has not come forward with any statement as to what happened on the fateful night. That apart, in all the three statements, the deceased had specifically stated that the accused ran away from the scene of occurrence. This statement appears to be true since the accused appeared before PW-6 Doctor attached to Government Hospital, Mandapam Camp at 5.30 p.m. on 28.8.1996 and to the Doctor, the accused had told that he sustained burns while trying to save her wife at the time when she attempted to commit suicide by pouring kerosene and setting herself on fire. We do not understand as to why the accused did not come forward with such statement while he was questioned under Section 313 Crl.P.C. Thus, the conduct of the accused as well as his silence when he was questioned under Section 313 Crl.P.C. would go a long way against the accused and in favour of the prosecution. 12. Thus, we are of the view that the dying declaration of the deceased is corroborated by Ex.P-4 accident register so also by the complaint given by the deceased before PW-10 Sub-Inspector of Police. The failure on the part of the accused to come forward with any explanation would serve as a missing link. In this view of the matter, this Court is of the view that there are no merits in the appeal. 13. In the result, the criminal appeal is dismissed. The conviction and sentence imposed on the appellant/accused by the learned Principal Sessions Judge, Ramanathapuram by his Judgment in S.C.60 of 1997 dated 4.2.2000 are hereby confirmed.