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2006 DIGILAW 1724 (MAD)

Kalimuthu v. State

2006-07-10

M.CHOCKALINGAM, M.E.N.PATRUDU

body2006
Judgment : Per M.E.N. PATRUDU J. 1. The appellant is the sole accused, in S.C. No. 31 of 2002 on the file on the learned Principal Sessions Judge, Dingidul. 2. The appellant was convicted for the offence under Section 302 IPC and sentenced to undergo life imprisonment along with a fine of Rs. 1000/-, in default to undergo one year R.1. 3. The brief facts are The appellant and the deceased are the residents of Othaiyur village. The case of prosecution is that the appellant has developed illicit intimacy with the deceased, who is the wife of P.W.3. There is an advise to the deceased by her parents not to entertain any intimacy with the appellant. Hence, the deceased asked accused not to visit her house. 4. While so, on 23.2.2001 at about 9.00 p.m., the appellant came to the house of the deceased, which is situated in the field just half a kilometre east of Othaiyur village. Then the deceased questioned him as to why he had come despite of her request, and repeated the request not to visit the house. Being annoyed with the same, the accused poured kerosene from the can, which is lying in the house of the deceased and set her fire and the flames have reached the roof of the hut. On seeing the same, P.W.3, the husband of the deceased, and P.W.2, a neighbour, who is residing next to the house of the deceased, rushed to the spot. They found the deceased burning. The further case of prosecution is that the husband of the deceased caught hold of the accused, but the accused fled away from the place of occurrence. The evidence of P.W.2 discloses that soon after the incident, he entered into the house, wherein the deceased was in flames and she has narrated how the incident occurred. It is an oral dying declaration of deceased before P.W.2 wherein she stated that the accused set her to fire. 5. Immediately, the deceased was taken to hospital. Later a complaint was lodged with the police by P.W.1, the brother of the deceased. Thereafter, investigation has been taken up and the accused was charge sheeted. 6. During trial, P.Ws.1 to 14 are examined and Exs. P.1 to P.18 are marked and M.Os.1 to 7 are also marked for prosecution. On behalf of the defence, four documents are marked. Later a complaint was lodged with the police by P.W.1, the brother of the deceased. Thereafter, investigation has been taken up and the accused was charge sheeted. 6. During trial, P.Ws.1 to 14 are examined and Exs. P.1 to P.18 are marked and M.Os.1 to 7 are also marked for prosecution. On behalf of the defence, four documents are marked. After the closure of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. and he denied the charge. 7. Before us, Mr. J. Ashok, the learned counsel appearing for the appellant has contended that the evidence relied on by the prosecution is not sufficient to connect the accused with the crime. 8. Mainly, he relied on two aspects. i) The dying declaration recorded by P.W.11, the Judicial Magistrate, is untrustworthy, because the deceased was not in a fit condition to make such a statement. His contention is that the deceased sustained 90% burn injuries. The entries in the Accident Registers, which have been marked as defence documents, disclose that the condition of the deceased is deteriorating day by day. According to P.W.11, she gave dying declaration at 4.50 p.m. and she succumbed to the unjuries at 7.30 p.m. on the same day. Therefore, she was not in a position to make such a statement. ii) It is also contended that the dying declaration recorded by P.W.11 is lengthy and it has been prepared neatly disclosing all the facts. There is no chance for recording such dying declaration. He relied on a decision. In Panchdeo Singh v. State of Bihar AIR 2002 SC 526 : (2002) 1 SCC 577 : 2002 Crl. LJ. 973 their Lordships observed that if dying declaration is neatly prepared, such dying declaration will lose importance of evidentiary value. 9. The learned counsel for the appellant also relied on another decision. State of Rajasthan v. Teja Ram and Others AIR 1999 SC 1776 : (1999) 3 SCC 507 wherein it is observed that if there is impairment in the functioning of brain, there is no chance for declarant to give dying declaration. 10. We have minutely gone through the above two decisions. 11. At the outset, we would like to clarify that the facts and circumstances in the above two decisions are not at all applicable to the facts and circumstances of this case. 12. 10. We have minutely gone through the above two decisions. 11. At the outset, we would like to clarify that the facts and circumstances in the above two decisions are not at all applicable to the facts and circumstances of this case. 12. In the decision reported in 2002 Crl.L.J. 973, their lordships were pleased to reject the dying declaration on two grounds, the Doctors certificate was not obtained at the time of recording dying declaration by the Magistrate, though the Doctor was present by the side of the patient at the time of recording dying declaration. Their lordships have posed a question why the doctor did nto certify the fitness of the person making the statement or even append his signature and there is no answer from the Magistrate. In the trial court in that case, the defence have challenged the fitness condition of the declarant by cross examining the Magistrate and also questioned for not obtaining the signature of the Doctor on the statement. Since there is no statement from the Doctor about the condition of the declarant, their lordships were pleased to observe that the dying declaration recorded by the Magistrate is not acceptable. 13. In the instant case, P.W.11 has recorded dying declaration in the mother tongue of the deceased and it is not a lengthy dying declaration. It is an usual statement, narrating few details about the cause fo death of the deceased. The deceased had narrated how the incident occurred and how she sustained injuries and also the earlier motive. Apart from that, it is not a neat statement recorded leisurely. P.W.11 has taken every care by otaining the certificate from the Doctor about the mental condition fo the deceased. There is an endorsement of doctor about the fit codnition of the deceased. Further, there is no cross-examination of P.W.11 with regard to the mental condition of the deceased. There is no whisper in the cross examination that the deceased was not in a fit condition to make any statement. Further, we do not find any reason for P.W.11 the Judicial Magistrate, to create a false document. We have no hesitation to condemn this argument as it is advanced without any foundation in the cross examination. 14. There is no whisper in the cross examination that the deceased was not in a fit condition to make any statement. Further, we do not find any reason for P.W.11 the Judicial Magistrate, to create a false document. We have no hesitation to condemn this argument as it is advanced without any foundation in the cross examination. 14. In Shanmugam v. State of Tamil Nadu AIR 2003 SC 209 : (2004) 10 SCC 4 the Honourable Supreme Court has clearly held that the dying declaration can form the sole basis for conviction and it is well settled by a catena of decisions of the Supreme Court of India. In the same decision, it was further observed that the Medical Officer of the hospital was present at the time when the statement was recorded and he also made an endorsement on Ex.P.16 about the consciousness of the patient. The mere fact that the Doctor is not examined does not affect the evidentiary value to be attached to the dying declaration. In the same decision, it is also observed that there is no cross examination to the Magistrate with regard to the mental condition of the deceased to make such statement and in such circumstance, the dying declaration itself is sufficient to convict. 15. In Chacko v. State of Kerala AIR 2003 SC 265 : (2003) 1 SCC 112 it is clearly held that it is not necessary that a dying declaration should be certified by a doctor before placing any reliance, because the satisfaction of the Magistrate, who recorded the dying declaration, is necessary and in order to take further caution, the certificate of the doctor is advisable. 16. The above two latest decisions delivered by the Supreme Court are to be followed as the decisions referred by the learned counsel for the appellant are old decisions. Therefore, we do not find any force in the argument of the learned counsel for the appellant to reject the dying declaration. 17. We have minutely gone through Ex.P.13, the dying declaration recorded by P.W.11. It inspires the confidence and the contents of Ex.P.13 are corroborating with the entire case of prosecution. 18. In this case, the deceased has made an oral dying declaration before P.W.2 soon after the incident. The incident has occurred at about 9.00 p.m. and within a few minutes, P.W.2, who is the neighbour of the deceased, reached the spot. It inspires the confidence and the contents of Ex.P.13 are corroborating with the entire case of prosecution. 18. In this case, the deceased has made an oral dying declaration before P.W.2 soon after the incident. The incident has occurred at about 9.00 p.m. and within a few minutes, P.W.2, who is the neighbour of the deceased, reached the spot. On seeing flames, he enquired and the deceased said that the accused poured kerosene and set her fire. This fact has been narrated by the deceased till her death and her statements are consistent. 19. There are some more oral dying declaration, but we do not want to place any reliance of the dying declaration recorded by the police officer. 20. The oral dying declaration made by the deceased before P.W.2 and the dying declaration recorded by P.W.11 are trustworthy. There should be strong reason to discard the statement of the deceased. The dying declaration itself is sufficient to hold that the accused has committed the murder of the deceased. 21. In this case, the case of prosecution discloses that the deceased married P.W.2. The accused has developed illicit intimacy with the deceased. 10 days prior to the occurrence, there was an advise to the deceased by her parents not to entertain intimacy with the appellant. When appellant came to the house of the deceased, she questioned him as to why he came, instead of going back, the accused got annoyed and killed her. 22. This is a brutal murder. Hence, we do not want to show any mercy in this case. There is no reason for us to go into details of all other evidence produced by the prosecution. The evidence of P.W.2 andP.W.11 alone is sufficient to connect the accused with the crime. 23. For all the foregoing reasons, we do not find any merit in the appeal. Hence, the conviction and sentence imposed on the appellant by the trial court are confirmed. This criminal appeal fails and the same is dismissed.