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2003 DIGILAW 1243 (MAD)

Umasankar @ Sankar v. State of Tamilnadu

2003-08-06

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

body2003
Judgment :- A.S.VENKATACHALAMOORTHY, J. The appellant/accused was tried by the learned Additional Sessions Judge, Vellore for the charge under Section 302 I.P.C., in S.C.No.86 of 2000 with reference to the murder of one Mallika on the night of 7.12.1999 near Pudupadi Palar Dam. The trial Court found him guilty as charged and sentenced him to undergo life imprisonment and also imposed a fine of Rs.3,000/- by its Judgment dated 3rd October, 2000. The accused, being aggrieved by the said Judgment has preferred the present appeal. 2. The prosecution, to substantiate its case, examined PWs.1 to 25 and marked Exs.P-1 to P-31 and produced Mos.1 to 20. 3. The case of the prosecution based on the above evidence let in, in a nutshell is as under. (a) PW-13 Kanniammal belongs to the village called Vijalapuram, Vallipattu and has five daughters. The deceased, who is one among them, was married to PW-14 Beeman of Poongulam village and they have three children. The deceased developed illicit intimacy with one Asokan, who is a neighbouring land owner, and a close relative of her husband. She left PW-14 and joined the said Asokan and they started living as husband and wife. (b) The accused Umashankar is a friend of Asokan and he used to visit Asokan's house and because of that he came in contact with Asokan's sister by name Jayakodi with whom he fell in love. Asokan was sentenced to imprisonment with reference to some offence he had committed and he was lodged in Central Prison, Vellore. The deceased Mallika used to visit Asokan and for which purpose, she used to take the assistance of the accused. (c) About three days prior to the occurrence, the accused, under the pretext of taking her to the Central prison to see Asokan, took her to Tirumalaicheri and she was there for two days. The mother of the accused did not like the deceased staying in Tirumalaichery and in fact she scolded the accused for having brought the deceased there. On the day of occurrence, the accused took the deceased and he asked the deceased to part with her stud for the purpose of meeting the expenses. However, the deceased refused to give the same and there was wordy altercation. Then the accused told the deceased that only because she is alive, Asokan is not able to marry again and that he would finish her of. However, the deceased refused to give the same and there was wordy altercation. Then the accused told the deceased that only because she is alive, Asokan is not able to marry again and that he would finish her of. (d) On a Tuesday, in the evening, when they were near the Palar Anaicut bridge near a tree, the accused pulled the saree of the deceased and asked for the golden stud. The deceased raised an alarm. Thereafter the accused went to Tirumalaichery and came back with kerosene. The accused poured kerosene on the deceased and set her to fire. The accused thereafter left in the motor cycle. The deceased sustained injuries all over the body, ran and reached the junction of Pudupadi and fell down near a tea stall. (e) PW-1 Mohalingam, who was sleeping in the shop, heard the cry of the deceased so also PW-2 Ravi, PW-3 Banu and PW-4 Mohana, and all of them rushed to the spot and saw the deceased naked with burn injuries. When enquired, the deceased told them that the accused poured kerosene and set fire. She also told them that her husband is in jail and since she refused to give her golden stud to the accused, he had done like that. The people, who gathered there gave a saree to her. PW-1 and Balaraman took her to the Primary Health Centre. (f) PW-5 Lalitha was the nurse in the Primary Health Centre, to whom also the deceased narrated what had happened. PW-5 advised her to go to the Government Hospital, Vellore since there was no proper medical facility. Thereafter, the deceased was taken in a car to Vellore. On the way, Balaraman got down at Arcot and informed the Police by telephone and proceeded to Vellore. (g) PW-18 Dr.Senthamaraikannan was working at the Government Hospital, Vellore at the relevant time. He examined the injured Mallika and treated her on 8.12.1999. The Doctor found her to have sustained injuries to the extent of 95%. To the Doctor she told that she had sustained injuries by the accused pouring kerosene and setting her to fire near Pudupadi. Ex.P-7 is the wound certificate issued by him. Thereafter the Doctor sent Ex.P-8 requisition to the Judicial Magistrate to record the dying declaration. An intimation Ex.P-9 was also sent to the Police. To the Doctor she told that she had sustained injuries by the accused pouring kerosene and setting her to fire near Pudupadi. Ex.P-7 is the wound certificate issued by him. Thereafter the Doctor sent Ex.P-8 requisition to the Judicial Magistrate to record the dying declaration. An intimation Ex.P-9 was also sent to the Police. (h) PW-21 was the Judicial Magistrate No.4 at Vellore at the relevant time, who received the intimation at about 5.35 a.m. on 9.12.1999. Immediately he rushed to the hospital and reached there at 5.50 a.m. and recorded the dying declaration between 5.50 a.m. and 6.20 a.m. in the presence of Doctor. Ex.P-15 is the dying declaration recorded by PW-21. In the said declaration, the Doctor has certified that the patient was fit and conscious at the time of recording dying declaration. (i) PW-25 is the Inspector of Police, who on being informed about the incident, rushed to the hospital and examined the deceased and recorded her statement Ex.P-20 at 6.30 a.m. Then he came back to the police station and registered crime No.280 of 1999 under Section 307 I.P.C. and prepared Ex.P-21 F.I.R. He then sent the same to the Judicial Magistrate and copies to his superiors. The Inspector again came to the hospital and enquired the injured Malliga and recorded Ex.P-22 statement under Section 161 Crl.P.C. Thereafter he went to the scene of occurrence and prepared Ex.P-1 Observation Mahazar and Ex.P-23 rough sketch in the presence of witnesses. The material objects MOS.3 to 18 found at the scene of occurrence were seized under mahazar Ex.P-2. Inspector of Police then examined Pws.1 to 5 and others. One of the witnesses Balaram died after recording his statement under Section 161 Crl.P.C. and the same has been marked as Ex.P-24. (j) In spite of the treatment, the deceased died at 3.00 p.m. on 8.12.1999 and on coming to know the same, the Inspector of Police went to the Government Hospital and collected the death intimation Ex.P-25. The crime was then altered as one under Section 302 I.P.C. and Ex.P-26 express F.I.R. was prepared and the same was sent to the Judicial Magistrate and copies to his superiors. (k) On 9.12.1999, PW-25 conducted inquest over the body of the deceased between 9.00 a.m. and 1.00 p.m. in the presence of Panchayatdars and prepared Ex.P-27 inquest report. Thereafter further statement of witnesses were recorded. (k) On 9.12.1999, PW-25 conducted inquest over the body of the deceased between 9.00 a.m. and 1.00 p.m. in the presence of Panchayatdars and prepared Ex.P-27 inquest report. Thereafter further statement of witnesses were recorded. Ex.P-28 is the further statement of the witness deceased Balaram. (l) PW-20 was the Doctor at the Government Hospital, Vellore at the relevant time, who conducted autopsy on the body of the deceased pursuant to the requisition Ex.P-13 sent by the Inspector of Police. Ex.P-14 is the post mortem certificate issued by the Doctor. In the said certificate, the Doctor has noted the following, "Body of a female, lies supine I to II burns present all over the body 100%. No bony injuries, Hyoid intact. Stomach contains food particles. All internal Viscera normal in position and size and pale on section. Uterus 60 g empty." In Ex.P-14, the Doctor had opined that the deceased would appear to have died due to hypovolumic shock due to 100% burns, 20 to 30 hours prior to post mortem. (m) The Investigating Officer thereafter proceeded with investigation and examined witnesses on various dates. On 11.12.1999 on the basis of information he went to a place called Kottamedu and arrested the accused at about 9.00 a.m. in the presence of witnesses. On arrest, the accused gave a voluntary confession statement and the admissible portion in it is marked as Ex.P-3. The accused offered to produce MO-19 TVS Champ moped and also MO-20 plastic Can. The accused at 10.30 a.m. took the police party and witnesses and showed in the shed of one Varadhan the said MO-19 TVS Champ moped and the same was recovered under mahazar Ex.P-4. Thereafter the accused took them to a place near Pudupadi Anaicut and from a bush took out and produced a white colour Plastic Can MO-20 and the same was recovered under mahazar Ex.P-5. The seized articles were then sent to the Court with a requisition to send them for necessary examination. After completion of the investigation, PW-25 filed his final report on 18.1.2000. 4. When questioned under Section 313 Crl.P.C., the accused denied having committed any crime and submitted that he has been falsely implicated in this case. 5. This is a case of circumstantial evidence. In a case of circumstantial evidence, all the circumstances from which conclusion of guilt is to be drawn must be fully established. 4. When questioned under Section 313 Crl.P.C., the accused denied having committed any crime and submitted that he has been falsely implicated in this case. 5. This is a case of circumstantial evidence. In a case of circumstantial evidence, all the circumstances from which conclusion of guilt is to be drawn must be fully established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. The circumstances must be satisfactorily established and the proved circumstances must bring home the guilt of the accused beyond all reasonable doubt. The cumulative effect of the proved circumstances must form unbroken chain of events leading to the proof of the guilt of the accused. In assessing the evidence, imaginary possibilities have no role to play and the chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. The Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof. 6. In the present case, the circumstances relied on by the prosecution can be set out as under: (1) Dying declaration made by the deceased to PW-21, the Judicial Magistrate on 8.12.1999 at 5.50 a.m., which has been marked as Ex.P-10. (2) The complaint Ex.P-20 given by the deceased to the Inspector of Police at about 7.00 a.m. on 8.12.1999. (3) The statement given by the deceased to the Inspector of Police under Section 161 Crl.P.C. at about 10.00 a.m. on 8.12.1999. (4) The oral evidence of PW-1 to PW-5 to whom the deceased told immediately after the occurrence that it was the accused, who poured kerosene and set fire. 7. PW-21 is the Judicial Magistrate No.4 at Vellore. At about 5.35 a.m. in the morning he received a requisition from the Government Hospital to record a dying declaration of the deceased. (4) The oral evidence of PW-1 to PW-5 to whom the deceased told immediately after the occurrence that it was the accused, who poured kerosene and set fire. 7. PW-21 is the Judicial Magistrate No.4 at Vellore. At about 5.35 a.m. in the morning he received a requisition from the Government Hospital to record a dying declaration of the deceased. He immediately rushed to the hospital and reached there at 5.50 a.m. In the presence of the Doctor, he recorded dying declaration after satisfying himself that the witness is conscious and she is capable of understanding questions and give answers. The deceased then told the Magistrate that on the day of occurrence, after the film show was over, she went to the house of Umashankar and that there was a wordy quarrel between them and hence they boarded a bus and got down near banyan tree. At that time the accused came there in a two-wheeler and asked the deceased to give him her golden stud. But however, she refused. The accused went to his house and came back and the deceased was still waiting for the bus. Again the accused asked her to give the jewel, for which the deceased refused. The accused, standing behind the deceased, splashed kerosene and then lighted a cigarette and threw it on her. The deceased then ran crying and she was chased by the accused. When she reached the shop, the people nearby enquired and to whom she had told what had happened. 8. To the Inspector of Police, who came subsequently, the deceased gave two statements. One at about 7.00 a.m. (ie) Ex.P-20, which has been treated as complaint and the other is Ex.P-22 given between 10.00 and 11.00 a.m., a statement under Section 161 Crl.P.C. In Ex.P-20, she has stated that the accused took her under the pretext of taking her to the jail to see her husband to Tirumalaicherry instead of Thuraipadi. There she stayed for two days and since the mother of the accused took him to task for bringing the deceased there. On the day of occurrence, the accused took her saying that they could go and see her husband and for expenses, he asked her to part with her stud weighing half sovereign, for which she refused. There she stayed for two days and since the mother of the accused took him to task for bringing the deceased there. On the day of occurrence, the accused took her saying that they could go and see her husband and for expenses, he asked her to part with her stud weighing half sovereign, for which she refused. She further told the Police that in the evening, near the Palar bridge, when they were going, the accused pulled her saree asking for the jewel and that she raised an alarm. Thereafter, the accused went to Tirumalaicherry and came back in a two-wheeler with a kerosene bottle. The deceased was standing there waiting for the bus. The accused again picked up quarrel, poured kerosene on her and set her to fire. Thereafter the accused left in the motor cycle. The deceased who sustained burn injuries, ran and reached the road junction and near the tea shop people gathered and they took her to the hospital in a car. 9. The third statement is again given to the Inspector of Police between 10.00 a.m. and 11.00 a.m., i.e., just about three hours after the previous statement. It is a very lengthy statement wherein lot of details have been given. In the said statement she had stated that the accused took her to Mullandram and discussed about arrack deal and on the way to Arcot, she took her bath. The accused went somewhere and came back in motor cycle and then they went to a movie (for the first-show) and after the show, they went to a wine shop and purchased liquor and they went to a dilapidated building near the Palar bridge where they lighted chimney lantern and also a candle and at that time it was about 10.00 p.m. She had further stated that they had spread a bed sheet on the floor, sat on that and started consuming liquor. At that time the accused demanded her stud, for which the deceased refused and because of that there was a wordy quarrel. The accused then said that only because she is alive, Asokan could not marry again and hence the deceased should be finished off. The deceased started consuming liquor further and taking snacks. Then the accused went to Tirumalaicherry and came back with a Can containing kerosene. The accused poured kerosene on her and set her to fire. The accused then said that only because she is alive, Asokan could not marry again and hence the deceased should be finished off. The deceased started consuming liquor further and taking snacks. Then the accused went to Tirumalaicherry and came back with a Can containing kerosene. The accused poured kerosene on her and set her to fire. The deceased, who received burn injuries, ran from that place and went to Pudupadi road junction where people gathered and they helped to take her to the hospital. 10. The last statement made by the deceased is to Pws.1 to 4, who came immediately after the occurrence. To them, she made a declaration that it was the accused who poured kerosene and set to fire. Similar is the declaration made to PW-5. 11. When there are more declarations than one, they should be consistent, particularly in material particulars. There should not be any inherent improbabilities or inherent contradictions amongst them. Or in other words, there should not be any material contradictions as between the dying declarations not only regarding number of persons involved, but also in the context in which the deceased got fire. 12. Now, we have to compare Exs.P-10, P-20, P-22 and of course the testimonies of PWs-1 to 5 and find out as to whether there are material contradictions. 13. With regard to the place of occurrence, in Exs.P-10 and P-20, it is stated that the occurrence took place near a banyan tree close to Palar Anaicut Bridge, whereas, in Ex.P-22, it is stated that the occurrence took place in a dilapidated building near Palar Bridge. To PWs-1 to 5, the deceased had told that the occurrence took place near Palar Bridge. In Ex.P-10, it is stated that she witnessed a movie and thereafter went to the house of his sister-in-law Jayakodi and there was a wordy quarrel between herself and the sister-in-law and hence, she boarded a bus and came to the banyan tree and at that time, the accused came and asked her to part with the jewel. When she refused, he went to the village, brought kerosene in a bottle and then he poured kerosene and threw a lighted cigarette on her. In Ex.P-20, it is stated as if, when she went to the house, the accused's mother scolded him as to why he had brought the deceased to home. When she refused, he went to the village, brought kerosene in a bottle and then he poured kerosene and threw a lighted cigarette on her. In Ex.P-20, it is stated as if, when she went to the house, the accused's mother scolded him as to why he had brought the deceased to home. On Tuesday, the accused asked the deceased to part with her jewels, for which she refused and in the evening, when she was coming near the bridge, the accused pulled her saree and the deceased raised an alarm. The accused thereafter went to the village, brought kerosene in a bottle, poured kerosene on the deceased and set her on fire. But whereas, in Ex.P-22, the deceased had come forward with an entirely new story. She had stated that she told two persons by name Thool and Thiyagu to bring Rs.2000/- for the purpose of smuggling sandalwood and that Thiyagu left saying that he had no money while Thool said that he would bring Rs.500/-. Thereafter, the accused took the deceased in a two-wheeler. That they went to a cinema theatre and after witnessing the show, they purchased liquor and thereafter went to the dilapidated building near Palar Bridge and consumed liquor. 14. In Ex.P-10, it is stated that the accused after pouring kerosene and setting the deceased to fire, chased the deceased. Whereas, such a story has not been put forward in the other two statements. In fact, in P-20, it is stated that the accused after setting fire, left that place in his two wheeler. 15. In Ex.P-10, the deceased had stated that on being chased by the accused, she ran away and reached the nearby shop and the people there, seeing this, informed the police and in fact they brought the police and when they enquired, she told them as to what had happened. Whereas, in the other two statements viz., Exs-20 and P-22, she has stated that when reached the shop, people gathered there gave her a saree to wear and they took her to the hospital by a car. While in Ex.P-10, the deceased had stated that the accused came back with a kerosene bottle in his pocket, in Ex.P-20, she had stated that he came with a kerosene bottle as if he was keeping the same in hand. While in Ex.P-10, the deceased had stated that the accused came back with a kerosene bottle in his pocket, in Ex.P-20, she had stated that he came with a kerosene bottle as if he was keeping the same in hand. A different version is mentioned in Ex.P-22, wherein it is stated that kerosene was brought in a Can. 16. Apart from the above contradictions, one other aspect, which we consider as very relevant is that in Ex.P-22, the deceased had stated that herself and the accused purchased liquor and at about 10.00 p.m., they spread a bed sheet, sat on it and started consuming liquor. At that time, the accused, according to the deceased, demanded the jewel which she was wearing, but however, she declined. According to the deceased, the accused said that she is preventing Asokan viz., the husband of the deceased from marrying again and she must be finished off. The deceased has further stated that she continued to drink brandy and also to take snacks. To quote the exact wordings, If we look at the observation mahazar Ex.P-1, we find that the Inspector noted therein as under:- 22. Probably, what he noted viz., would refer to the bed sheet. If that is so, a question would arise as to whether the deceased was set to fire while she was lying down and because of which the bed sheet got fire. Similarly, the Inspector also noted a burnt rose-colour jacket and also a ladys' hair-pin and also burnt-hairs. One thing is certain that the occurrence took place only in the dilapidated building and not near the banyan tree and it is not clear as to how the occurrence took place. 17. To sum up, (i) There is a contradiction as to how the occurrence took place and where it took place; (ii) It may be that the deceased might not have known as to how her saree caught fire, since she was fully drunk. (iii) From the facts and circumstances, it is clear that the deceased was not a woman of character and that being so, there is no certainty that she only spoke the truth. At this juncture, we deem it necessary to refer to a recent ruling of the Supreme Court reported in 2001 (6) SCC Crl. 118 (Laxmi v. Om Prakash), wherein the Supreme Court affirmed the Judgment reported in 1993 SCC Crl. At this juncture, we deem it necessary to refer to a recent ruling of the Supreme Court reported in 2001 (6) SCC Crl. 118 (Laxmi v. Om Prakash), wherein the Supreme Court affirmed the Judgment reported in 1993 SCC Crl. 655 (Kundula Bala Subrahmanyam v. State of A.P.) and further ruled as under:- " A dying declaration, if found reliable, can form the basis of conviction. A Court of facts is not excluded from acting upon an uncorrborated dying declaration for finding conviction. A dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in the light of the surrounding circumstances and its weight determined by reference to the principles governing the weighing of evidence. It is as if the maker of the Dying Declaration was present in the Court, making a statement, stating the facts contained in the declaration, with the difference that the declaration is not a statement on oath and the maker thereof cannot be subjected to cross examination. If in a given case a particular dying declaration suffers from infirmities, either of its own or as disclosed by other evidence adduced in the case or circumstances coming to its notice, the Court may as a rule of prudence look for corroboration and if the infirmities be such as rendering the dying declaration so infirm as to prick the conscience of the Court, the same may be refused to be accepted as forming a basis for conviction." Another ruling reported in 1999 (4) Crimes 90 (SC) (Dandu Lakshmi Reddy v. State of A.P.) has also to be mentioned. In the said ruling, the Supreme Court has ruled as under:- " In view of the impossibility of conducting the test on the said version with the touchstone of cross-examination we have to adopt other tests in order to satisfy our judicial conscience that those two dying declarations contain nothing but truth. First among such tests is to scrutinise whether there are inherent improbabilities in that version. We are unable to detect any such improbability inherent therein. The next test is whether there is any inherent contradiction therein. In that scrutiny we came across one material contradiction as between the two dying declarations regarding the context in which deceased caught fire. Ext. First among such tests is to scrutinise whether there are inherent improbabilities in that version. We are unable to detect any such improbability inherent therein. The next test is whether there is any inherent contradiction therein. In that scrutiny we came across one material contradiction as between the two dying declarations regarding the context in which deceased caught fire. Ext. P-14 shows that she was set fire to when she was lighting to stove for preparing the coffee. ..... In Ext.P-11 (which is a dying declaration given to the judicial Magistrate of 1st class) the context stated by the declarant was altogether different. The relevant portion is extracted below:- " My mother-in-law's name is Narayanamma, my husband's name is Dandu Lakshmi Reddy. In the morning at 6.00 a.m. when I was sweeping, my mother-in-law Narayanamma and my husband Laxmi Reddy both poured kerosene on me, lit the match-stick and set me on fire." .... Thus the High Court has sidelined such a noticeable discrepancy looming large as between the two different statements made by the same person. When the sphere of scrutiny of dying declaration is a restricted area, the Court cannot afford to sideline such a material divergence relating to the very occasion of the crime. Either the context spoken to in one was wrong or that in the other was wrong. Both could be reconciled with each other only with much strain as it relates to the opportunity for the culprit to commit the offence. Adopting such a strain to the detriment of the accused in a criminal case is not a feasible course. " Coming to the present case, we are satisfied that there are material contradictions amongst the various dying declarations and hence, it would not be safe to come to the conclusion that the prosecution has proved its case beyond all reasonable doubts. 18. In the result, the criminal Appeal is allowed. Conviction and sentence imposed by the trial court on the appellant/accused under Section 302 IPC. are hereby set aside. The appellant/accused shall be set at liberty forthwith if he is not required in connection with any other case. Fine amount, if any, paid by the appellant/accused shall be refunded to him.