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2008 DIGILAW 1213 (MAD)

Mariappan v. State, rep. by Inspector of Police

2008-04-09

P.D.DINAKARAN, R.REGUPATHI

body2008
Judgment :- R. Regupathi, J. The appellant paramour of the deceased was convicted for the offences punishable under Sections 302 and 450 IPC and was sentenced to undergo life imprisonment and to pay a fine of Rs.5000/= in default to undergo R.I., for two years for the offence under Section 302 IPC and sentenced to undergo R.I., for three years and to pay a fine of Rs.1000/= in default to undergo R.I., for one year for the offence under Section 450 IPC. Aggrieved against the conviction and sentence the appellant has preferred this appeal. 2. The case as put forth by the prosecution as per the charges is that on 19. 2000 at about 3.30 pm., within the jurisdiction of the respondent police station, the appellant trespassed into the residence of the deceased and thereby committed offence of house trespass punishable under Section 450 IPC. During the course of the same transaction and at the same time since the accused was having illicit intimacy with the deceased, indulged in quarrel with the deceased since she refused to continue such relationship, assaulted her and poured kerosene on her and set fire and in pursuance of which, the deceased died on the same date at 7.30 pm., in the hospital, thereby committed the offence punishable under Section 302 IPC. 3. When the accused was questioned initially after framing of the charges, denied the complicity of commission of the offence and pleaded innocence and therefore the trial of the case was taken up by the Principal Sessions Court, Dharmapuri District at Krishnagiri in S.C.No:83 of 2003. The prosecution in order to substantiate its case examined P.Ws.1 to 18, marked Exs.P.1 to P.18 and produced material objects 1 to 10. 4. It is the case of the prosecution that the deceased who is the wife of P.W.4, who is the mother of two children, was having illicit intimacy with the accused. This was objected to by P.W.4. Inspite of that, she was continuing the affair and on earlier occasions, both the deceased and the accused were assaulted in this regard by P.W.4. Under such circumstances, on the date of occurrence on 19. 2000 at 3.00 p.m., the accused trespassed into her residence and sine the deceased refused to continue such affair indulged in quarrel, in which the appellant poured kerosene and set fire on her and escaped from the scene of occurrence. Under such circumstances, on the date of occurrence on 19. 2000 at 3.00 p.m., the accused trespassed into her residence and sine the deceased refused to continue such affair indulged in quarrel, in which the appellant poured kerosene and set fire on her and escaped from the scene of occurrence. P.Ws 1 to 8 have been examined to substantiate the motive part as well as the actual occurrence, which took place in the residence of the deceased on the date of occurrence. It is unfortunate that P.Ws.1 to 8 including the husband and father of the deceased did not support the case of the prosecution and therefore they were treated as hostile witnesses. 5. P.W.1 is a neighbour who after hearing the noise emerging from the residence of the deceased, reached there and found the deceased with burn injuries in the door steps of her residence and with the help of the accused and others poured water on her. Equally, P.Ws.2 and 3 are also neighbours who have corroborated the testimony of P.W.1. Though P.Ws 1 to 3 spoke about the illicit intimacy of the deceased with the appellant, they did not divulge anything about this as well as the accused running away from the scene of occurrence and therefore they have been treated as hostile. P.W.4 is the husband of the deceased who has stated that he went out of the residence for work and after hearing the information about the occurrence, reached home and found the deceased with burn injuries. Though during the course of investigation he has divulged about the illicit intimacy of the deceased with the appellant, and also stated that he assaulted them on earlier occasion, he did not support the case of the prosecution in this regard. P.W.5 is the father of the deceased who spoke only about the information about the death of the deceased. P.W.6 has been examined as attesting witness for preparation of mahazar by the investigating officer and he has only admitted his signature in the mahazar and claimed innocence about the contents of the mahazar. P.W.7 has attested the preparation of observation mahazar and rough sketch, but only during the course of cross examination by the State after treating him as hostile it was admitted by him about the signature and contents of the mahazar. P.W.8 has been examined as witness for the arrest and recovery. P.W.7 has attested the preparation of observation mahazar and rough sketch, but only during the course of cross examination by the State after treating him as hostile it was admitted by him about the signature and contents of the mahazar. P.W.8 has been examined as witness for the arrest and recovery. But, since he did not support the version pot forth by the prosecution, he has been treated as hostile. 6. Though the ocular testimony of the witnesses put forth by the prosecution namely, P.Ws. 1 to 8 turned hostile, the other official witnesses are available to substantiate the case of the prosecution. Though none of the witnesses speak about the manner in which the deceased sustained burn injuries, these witnesses have stated in their chief examination about the deceased with burn injuries at her residence and taking her to the Government Headquarters Hospital. Though they have been treated as hostile, the fact that the deceased is the wife of P.W.4, that the deceased was having illicit intimacy with the accused and it was objected to by her husband and quarrel on account of that, that P.Ws.1 to 3 are neighbours and that they have seen the deceased with burn injuries at her residence and shifting of the deceased to the hospital are all established. When the deceased was taken to the Hospital at 4.10 pm., P.W.10, Duty Doctor admitted her and when questioned, P.W.4 stated to him that a known person poured kerosene and set fire to the deceased. The deceased has been shifted to Emergency Care Unit and in the meantime a requisition, Ex.P.5 at 4.15 pm., has been sent to the learned Judicial Magistrate for recording the dying declaration. Intimation to the police as per Ex.P.7 has been sent. Accident Register issued to her is Ex.P.8. 7. P.W.9, Judicial Magistrate on receipt of the intimation from the Doctor reached the Government Hospital at 4.55 pm., and found the deceased conscious. In the presence of P.W.11, after observing the formalities, recorded the dying declaration from the deceased. The Medical Officer, P.W.11 attested the dying declaration about the consciousness of the deceased. P.W.12 is the Photographer, who has taken photographs of the deceased. In the presence of P.W.11, after observing the formalities, recorded the dying declaration from the deceased. The Medical Officer, P.W.11 attested the dying declaration about the consciousness of the deceased. P.W.12 is the Photographer, who has taken photographs of the deceased. P.W.17, Inspector of Police on receipt of intimation from the Hospital directed P.W.15, Head constable to go to the Government Hospital and accordingly at 6.15 p.m., he recorded statement Ex.P.11 from the deceased and obtained her thumb impression. On receipt of the statement given by the deceased, P.W.17 registered a case in Crime No.1187/2003 for the offence punishable under Section 307 IPC and despatched Ex.P.13 FIR to the superior police officers and to the learned Judicial Magistrate. P.W.11 Medical officer informed the death of the deceased at 7.30 pm., on the same day to the police through Ex.P.7. 8. P.W.18 who is the Investigating Officer of the case on receipt of the First Information Report and about the death of the deceased altered the offence into one under Section 302 IPC and prepared Express Report Ex.P.14. On 19. 2000 he reached the scene of occurrence at 6.00 a.m., prepared observation mahazar Ex.P.16 and rough sketch Ex.P.15 in the presence of mahazar witnesses and recovered M.O.1 to 10 under cover of mahazar Ex.P.17. Thereafter reached the Government Hospital at 9.00 am., and conducted inquest over the dead body of the deceased. Ex.P.18 is the inquest report. On 19. 2000, the accused was arrested and in pursuance of the voluntary statement given by him, the accused offered to point out the place where the occurrence took lace and thereafter he as sent for medical examination. P.W.16, Medical Officer examined the accused at 7.10 pm., noticed the following burn injuries on him:- "1. Superficial Burns seen nose 1 cm x 1 cm healing 2. Healing burns right hand 3. Healing burns over right (N.C) 1 cm x 2 cm seen Opinion: The injury 1 to 3 are simple in nature" He has issued Ex.P.12 wound certificate for the appellant. Thereafter the accused was remanded to judicial custody. 9. Superficial Burns seen nose 1 cm x 1 cm healing 2. Healing burns right hand 3. Healing burns over right (N.C) 1 cm x 2 cm seen Opinion: The injury 1 to 3 are simple in nature" He has issued Ex.P.12 wound certificate for the appellant. Thereafter the accused was remanded to judicial custody. 9. Thereafter, the body of the deceased was sent for postmortem with requisition Ex.P.9 and P.W.13, Medical officer attached to the Government Headquarters Hospital, Dharmapuri conducted autopsy over the dead body of the deceased and found the following injuries:- "External Examination:- Extensive burn injuries seen over all over the body-including face, neck, chest, abdomen, whole of back, all 4 limbs (font and back) and external genitalia (Burns 90%) Internal Examination:- Skull and uranium scalp-hair: singeing of hair present; Cranial Vault: intact; Membrane: intact; Brain: pale; Base of Skull: normal; Hyoid Bone:intact; Thorax: sternum/ribs-intact; Lungs:pale; Heart: empty; Abdomen:stomach contained about 100 ml of partly digested rice; Intestine:Distended with gas; Liver:pale; Spleen:pale; Both Kidney:pale; Bladder:empty; Uterus:empty; External Genitalia:swollen, peeling of skin present". 10. Ex.P.10 is the Postmortem Certificate issued to the above effect. The Doctor also gave the opinion that the deceased would appear to have died due to irreversible shock due to extensive burns injuries at about 16 to 20 hours prior to autopsy. The Investigating Officer arranged to send the material objects to the Judicial Magistrates Court for receiving the opinion from the Chemical Analyst and on conclusion after examination of the witnesses and receipt of the reports from the Forensic Sciences Laboratory and on conclusion of the investigation, filed final report for the the offences punishable under Section 302 and 450 IPC. 11. On conclusion of the oral and documentary evidence and material objects, during the course of trial, the accused was questioned under Section 313 Cr.P.C., for which the accused denied the complicity of the commission of the offence and pleaded innocence. Neither oral, nor documentary evidence was adduced on the side of the defence. The learned Principal Sessions Judge, Krishnagiri on conclusion of the trial, convicted and sentenced the accused/appellant as mentioned above. Hence the present appeal. 12. Mr. S. Ashok Kumar, learned Senior Counsel appearing for the appellant submits that there is no direct evidence for the appellant pouring kerosene and setting fire to the deceased. The learned Principal Sessions Judge, Krishnagiri on conclusion of the trial, convicted and sentenced the accused/appellant as mentioned above. Hence the present appeal. 12. Mr. S. Ashok Kumar, learned Senior Counsel appearing for the appellant submits that there is no direct evidence for the appellant pouring kerosene and setting fire to the deceased. Though it has been stated that appellant was having illicit intimacy with the deceased, none of the witnesses, namely P.Ws.1 to 8 have spoken to about the same during their examination in the court. Though P.Ws 4 and 6 happened to be the husband and father of the deceased respectively, through them, the motive has not been established. Under such circumstances, the learned senior counsel submitted that the motive part of the case of the prosecution has not been substantiated and coupled with the fact that there is no direct eye witness for the actual occurrence, the findings of the sessions court convicting the accused for the alleged offence is not sustainable. 13. The learned senior counsel further argued that the case has been taken on file on the statement recorded by the Head Constable at the Hospital at the time when the deceased was taking treatment and for recording such a statement the Doctor never attested and under such circumstances, the same cannot be relied since the deceased was suffering from 90% burn injuries and unless her consciousness to give such a statement is established, such alleged statement recorded cannot be considered. Even in so far as the dying declaration given before the Judicial Magistrate, it is not elaborate and cryptic and such a dying declaration in the absence of corroboration cannot be taken as true and therefore submitted it is a case for acquittal. 14. Per contra, the learned Additional Public Prosecutor submits that witnesses P.Ws. 1 to 8 have not supported the case of the prosecution in view of the reason that the deceased is no more and those witnesses are living in the same village and obviously it has been done for the purpose of saving the life of the accused. But the fact remains that the occurrence taken place inside the residence of the deceased and P.W.1 though has been treated as hostile in the chief examination has stated about the presence of the accused. But the fact remains that the occurrence taken place inside the residence of the deceased and P.W.1 though has been treated as hostile in the chief examination has stated about the presence of the accused. Above all, the case itself has been taken on file after receiving the complaint from the deceased and the constable who has recorded the statement has stated affirmatively that the deceased was conscious at the time of giving such a complaint. More over the dying declaration given to the Judicial Magistrate cannot be easily brushed aside since it has been recorded in the presence of the Medical Officer who certified that the deceased was conscious. On an over all assessment of the material evidence produced on the side of the prosecution, it is submitted that the case put forth has been established beyond reasonable doubt and sought for confirming the conviction and sentence. 15. We have perused the materials available on record and heard the submissions of the learned Senior Counsel for the appellant and the learned Additional Public Prosecutor for the State. 16. It is an interesting case wherein the husband and father of the deceased did not support the case of the prosecution. No wonder, the other witnesses in the village also turned hostile. However, the fact remains that the deceased who is the wife of P.W.4 suffered burn injuries at her residence and with the help of neighbours and P.W.4, she was shifted to the Hospital. The occurrence took place at 3.00 pm., The deceased was admitted in the Government Headquarters Hospital at Dharmapuri, at 4.10 p.m., Even at the time of admission she has informed to the Medical Officer that such injury has been caused by a known person. On seeing the seriousness of the burn injuries, the Medical Officer acted swiftly and intimations were sent to both the Judicial Magistrate and the Police Official at the same time under Exs.P.5 and P.7 respectively. Under normal circumstances such a requisition will be routed through police official and fortunately in this case on hand, P.W.10 Medical Officer finding the critical condition of the deceased despatched a requisition Ex.P.5 to the Judicial Magistrate which reads as follows:- "Kindly call over to FS Ward for recording dying declaration for the patient Sathya 25/F, a case of 90% burn injuries. x: Very Urgent Please." 17. x: Very Urgent Please." 17. Equally, the Judicial Magistrate, P.W.9 sensing the seriousness of the message received from the Hospital at 4.45 p.m., immediately reached the Hospital at 4.55 pm., and in the presence of the Medical Officer recorded the dying declaration at 5.02 pm., attested by the Medical Officer wherein it has been stated as follows:- 18. After the dying declaration was recorded the deceased succumbed to the injuries at 7.30 pm., and in the mean time, after the learned Judicial Magistrate recorded the dying declaration, the Head Constable, PW.15 reached the Hospital and recorded the complaint from the deceased at 6.00 pm., But for the diligent and sincere efforts taken by P.W.10 Medical Officer of the Government Hospital and P.W.9, the learned Judicial Magistrate-II, Dharmapuri, the trial of the case would have taken a different turn and would not have seen the ends of justice. Now, as such, there are two dying declarations one recorded by the leaned Judicial Magistrate and another recorded by the Police Officer. On a perusal of both the dying declarations, we do not find any contradictions. However, the role played by the accused has been positively stated by the deceased. We do not find any inconsistency in both the dying declarations. We are aware that a dying declaration must inspire the confidence in the minds of the Court. Since such a statement of the deceased is not subjected to cross examination, the same must be subjected to a thorough and close scrutiny. If once a conclusion is reached that such statement has been given by the deceased it forms a valuable material to come to a conclusion one way or the other. A dying person would not normally implicate a person falsely and spare the real accused. 19. In State of U.P. Vs. Ram Sagar yadav, reported in AIR 1962 SC 439 , the Court speaking through Chandrachud, C.J., held as under:- 13. It is well stated that, as a matter of law, a dying declaration can be acted upon without corroboration. (See Khushal Rao V. State of Bombay ( AIR 1958 SC 22 ); Harbans Singh Vs. State of Punjab ( AIR 1962 SC 439 ); Gopalsingh Vs. It is well stated that, as a matter of law, a dying declaration can be acted upon without corroboration. (See Khushal Rao V. State of Bombay ( AIR 1958 SC 22 ); Harbans Singh Vs. State of Punjab ( AIR 1962 SC 439 ); Gopalsingh Vs. State of Punjab ( AIR 1972 SC 1557 ) There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the court may, for its assurance, look for corroboration to the dying declaration". 20. In K. Ramachandra Reddy Vs. Public Prosecutor, reported in 1976 SCC (Cri) 473, it was held that a great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person, yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. It was further held that the court must be satisfied that the deceased was a in a fit sate of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary, it can be sufficient to found the conviction even without any further corroboration. In Pothakamuri Srinivasulu Vs. State of A.P. (2002 SCC (Cri) 1337 it has been held that if the deceased made statement to the witnesses and their testimony is found to be reliable the same is enough to sustain the conviction of the accused. In Mafabhai Nagarbhai Raval Vs. State of Gujarat ( AIR 1992 SC 2186 ), it was held that the doctor who has examined the victim was the most competent witness to speak about her condition. 21. In Mafabhai Nagarbhai Raval Vs. State of Gujarat ( AIR 1992 SC 2186 ), it was held that the doctor who has examined the victim was the most competent witness to speak about her condition. 21. A perusal of the judicial dying declarations in the case on hand would establish that the deceased has stated about the time and manner as to when and how the accused committed the offence. It has been stated in a little elaborate fashion in Ex.P.11, wherein motive part of the case of the prosecution has also been mentioned. Though we are convinced that the dying declarations given by the deceased are sufficient to substantiate the case of the prosecution, on a perusal of the evidence of P.Ws 1 to 8, we could see supporting materials by way of corroboration. On a perusal of the contemporaneous documentary materials we can arrive at the conclusion that the occurrence took place inside the residence of the deceased and the deceased sustained burn injuries and as per the evidence of P.W.1, the presence of accused has also been established soon after the occurrence. Through P.W.10, Medical Officer, it is established that the burn injuries have been caused only by a known person and such known person has been ultimately fixed by the deceased as the appellant. Under such circumstances, we do not find any reason to accept the contention of the learned Senior Counsel for the appellant. Therefore, the conviction and sentence of the appellant are confirmed and the appeal is liable to be dismissed. 22. In the result, the Criminal Appeal is dismissed confirming the judgment dated 31. 2007, made in S.C.No: 83 of 2003 by the learned Principal Sessions Judge, Dharmapuri District at Krishnagiri.