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2008 DIGILAW 4058 (MAD)

Kamaraj v. State rep. by The Inspector of Police

2008-11-06

M.CHOCKALINGAM, S.RAJESWARAN

body2008
Judgment : M. Chockalingam, J. Challenge is made to the judgment of the Principal Sessions Division, Tiruvallur made in S.C.No.32 of 2006, whereby the sole accused/appellant stood charged under Sections 498-A and 302 IPC, tried and found guilty as per the charges and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo 6 months R.I. under Section 302 IPC and 3 years R.I. and to pay a fine of Rs.1000/-, in default to undergo 6 months R.I. under Section 498-A IPC and the sentences were ordered to run concurrently. 2.The short facts necessary for the disposal of this appeal could be stated thus: a) The accused is the husband of the victim Sandhya. P.Ws.1 and 3 are the parents of the victim. P.W.5 is an Auto driver by profession. P.W.6 is the brother of the accused and P.W.7 is his wife. The marriage between the accused and the victim took place in the year 2001 and there was often quarrel among the spouses. The accused was an Auto driver by profession and he was a drunkard. He used to put the victim to cruel treatment and he used to pledge the jewels with P.W.9. b)On 4. 2002 at about 11.00 a.m., there was a quarrel among the spouses. The deceased poured kerosene on her in order to threat the accused as if she was about to commit suicide if he quarrels with her. Immediately, the accused lit the match stick and threw it on her and set her ablaze. On hearing the distressing cry, P.W.7, the wife of P.W.6, raised noise and all others gathered. An information was given to P.Ws.1 and 3. It was P.W.5 who immediately took her to the Kilpauk Medical College Hospital in his auto. c) P.W.14, the Doctor attached to the said Hospital, admitted her and gave treatment. Ex.P.7 is the accident register in this regard. An intimation was given to the respondent police station. P.W.16, the Inspector of Police, on intimation, went to the hospital and recorded the statement of the victim, which was marked as Ex.P.9. On the strength of the said statement, he registered the case in Crime No.63 of 2002 under Section 307 IPC. Ex.P.10, the F.I.R. was despatched to the Court. An intimation was given to the respondent police station. P.W.16, the Inspector of Police, on intimation, went to the hospital and recorded the statement of the victim, which was marked as Ex.P.9. On the strength of the said statement, he registered the case in Crime No.63 of 2002 under Section 307 IPC. Ex.P.10, the F.I.R. was despatched to the Court. An intimation was given to P.W.2, the Judicial Magistrate-I, Tiruvallur, who went to the hospital and after verifying that she was conscious enough and had a frame of mind to give such a declaration, she recorded her dying declaration in the presence of the medical person and the same was marked as Ex.P.2. d) P.W.16 took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.3, the observation mahazar and Ex.P.11, the rough sketch. He also recovered M.Os.1 to 3 and 5 from the place of occurrence under a cover of mahazar. All the material objects were sent for chemical analysis. The accused was arrested on 4. 2002 at about 5.30 a.m. He came forward to give confessional statement, which was recorded in the presence of the witnesses. The said confession statement was marked as Ex.P.14. Despite treatment, the victim succumbed to burn injuries on 4. 2002. On receipt of the said intimation, the case was altered to Section 304-B IPC. Ex.P.15, the alteration report, was sent to the Court. e) An intimation was sent to the Revenue Divisional Officer, who has conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars. Ex.P.18 is the inquest report. Then, the dead body was sent for the purpose of autopsy. f) P.W.15, the Doctor attached to the Kilpauk Government Hospital, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of burn injuries. g) P.W.17, the Inspector of Police, took up further investigation. After verifying the records, he converted the case to Section 302 IPC. Ex.P.17, the alteration report was sent to the Court. He recorded the statement of the witnesses. Ex.P.21, the Chemical Analysts report and Ex.P.22, the Biology Report were received. On completion of the investigation, he filed the final report. 3. After verifying the records, he converted the case to Section 302 IPC. Ex.P.17, the alteration report was sent to the Court. He recorded the statement of the witnesses. Ex.P.21, the Chemical Analysts report and Ex.P.22, the Biology Report were received. On completion of the investigation, he filed the final report. 3. The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution has examined 17 witnesses and also relied on 22 exhibits and 5 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced and scrutiny of the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty as per the charges and awarded punishments as referred to above. Hence this appeal has arisen at the instance of the appellant. 4. Advancing arguments on behalf of the appellant, the learned Senior Counsel would submit that in the instant case, the prosecution has miserably failed to prove its case by any evidence; that according to the prosecution, the occurrence has taken place on 4. 2002 at about 11.00 a.m. in the house of the deceased; that from the evidence available, it would be quite clear that from the time of the marriage, there was a quarrel among the spouses; that even on the date of occurrence, there was a quarrel; that even according to the prosecution, the deceased has given statement to P.Ws.1,3,4,5,14 and 16 and also to P.W.2, the Judicial Magistrate as dying declaration; and that when all those documents are scrutinized, complete discrepancies were found, which would go to the root of the matter. 5. 5. Added further the learned Senior Counsel that according to the prosecution, it was P.W.5 who took the deceased to the hospital immediately; that even according to P.W.5, she informed him that it was herself who poured kerosene and set fire herself; that she was admitted by P.W.14, the Doctor at about 12.00 noon and the accident register was marked as Ex.P.7; that from the contents in Ex.P.7 and the evidence of P.W.14, the Doctor, it would be quite clear that she was conscious and she has also given statement that it was herself who poured kerosene and set herself fire; that there is no reason as to why she has given false version at the earliest; and that if the versions given to P.W.5 and P.W.14 were taken to have been proved, then the prosecution had no case at all. 6. The learned Senior Counsel has further submitted that the deceased has given statement to P.W.16, the Inspector of Police, wherein it is found that she poured kerosene herself and it was her husband who set her ablaze; that the Judicial Magistrate has recorded the dying declaration at about 9.45 p.m. on 4. 2002, wherein she has stated that it was the accused who poured kerosene on her and set her ablaze; that there were clear variations in the statements given before the police officer and before P.W.2, the Judicial Magistrate and thus, it would be quite clear that in between the hours, she was tutored; that there is no reason for the victim to give false version to P.W.5 and also to P.W.14, the Doctor at the earliest; that a careful perusal of these documents would clearly indicate that the subsequent documents were thoroughly tutored and under these circumstances, the case of the prosecution that it was her husband/accused who poured kerosene on her and set her fire has got to be rejected and that the lower court has not considered all the above aspects of the matter. 7. 7. Added further the learned Senior Counsel that there was a charge under Section 498-A IPC; that no one witness in particular the parents of the deceased have not whispered anything about the same and thus, the offence under Section 498-A IPC was not proved and under these circumstances, the prosecution has miserably failed to prove the case and hence the lower court should have rejected the case, but failed to do so and under these circumstances, the appellant is entitled for acquittal in the hands of this court. 8. The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 9. It is not in controversy that Sandhya, the wife of the accused, following an incident that took place at about 11.00 a.m. on 4. 2002 at her residence, was taken to the hospital immediately by P.W.5 and she was admitted by P.W.14, the Doctor, but she succumbed to injuries on 4. 2002. Originally, the case was registered by P.W.16, the Inspector of Police under Section 307 IPC and on her death, it was converted to Section 302 IPC. Following the inquest, the dead body was subjected to post-mortem by P.W.15, the Doctor, who has issued Ex.P.8, the post-mortem certificate that she died out of burn injuries. It is not disputed by the appellant that she died out of burn injuries and thus, it could be recorded so. .10. In order to substantiate the fact that it was the accused who poured kerosene on her and set her ablaze, the prosecution relied upon the statements that were given by the deceased to P.W.16, the Inspector of Police, on the strength of which the case came to be registered and also to P.W.2, the Judicial Magistrate, who recorded the dying declaration, which was marked as Ex.P.2. In the instant case, when these two documents are taken into consideration from the point of view of the earlier statements given by the deceased, the court is afraid whether conviction could be sustained relying on those documents, which were recorded by P.W.16, the Inspector of Police and P.W.2, the Judicial Magistrate. 11. It is not in controversy that the occurrence has taken place at about 11.00 a.m. on 4. 2002 and she was immediately taken to the hospital by P.W.5. P.W.5 is an auto driver. 11. It is not in controversy that the occurrence has taken place at about 11.00 a.m. on 4. 2002 and she was immediately taken to the hospital by P.W.5. P.W.5 is an auto driver. The victim has informed him that it was herself who poured kerosene and set herself fire. P.W.5 has spoken the said fact. Had it been true that it was the accused who poured kerosene on the deceased and set her ablaze, it is quite natural that one would expect the deceased to inform P.W.5 that it was the accused. On the contrary, she has stated that it was herself who poured kerosene and set herself fire. .12. The added circumstance is the earlier statement given by the victim to P.W.14, the Doctor and Ex.P.7, the accident register copy. P.W.14 has categorically deposed that when she was admitted in the hospital, she has given statement that she herself poured kerosene and set fire herself. The contents in Ex.P.7 when scrutinized, would clearly indicate that she was conscious and it was recorded that "sustaining burns by self with kerosene at the above address on the back" and it was also recorded that patient was conscious while answering to questions. Thus, it would be quite clear that at the earliest when she was taken to the hospital, she has given a statement to the Doctor that it was herself who poured kerosene and set fire herself. Further, there was no reason for the victim to give any false or tutored version at the earliest before P.W.5, the auto driver or before P.W.14, the Doctor. Apart from that, it has got to be pointed out that the statement was given to P.W.16, the Inspector of Police at about 5.15 p.m.. Thus, there was time interval of nearly 5 hours. According to P.W.1, P.Ws.1 and 3 were very well available at the hospital. It was a case where there was often quarrel. Thus, she has given statement to P.W.16 that she poured kerosene herself and it was her husband who set her ablaze. When the dying declaration was recorded by P.W.2, the Judicial Magistrate, she has given a different version that it was the accused who poured kerosene on her and set her ablaze. Thus, there were inconsistencies found in those two documents. When the dying declaration was recorded by P.W.2, the Judicial Magistrate, she has given a different version that it was the accused who poured kerosene on her and set her ablaze. Thus, there were inconsistencies found in those two documents. These two documents, which have come into existence later, in the pinion of the court, need not be given importance. There were not only inconsistencies found, but also there was clear variation from the earlier document given to P.W.14. Under these circumstances, the court is of the considered opinion that on the strength of those documents, it cannot be stated that the prosecution has proved the case beyond reasonable doubt. Though the prosecution was able to prove that she died out of burn injuries caused at the time and place of occurrence, it has miserably failed to prove that it was the act of the accused by setting her fire. Thus, the appellant is entitled to an order of acquittal insofar as the charge of murder. 13. So far as the charge under Section 498-A IPC are concerned, on scrutiny of the evidence, the court is of the considered opinion that the act of the accused would attract the penal provision of Section 498-A IPC. It is a case where she has committed suicide and even on the date of occurrence, there was a quarrel and it was the accused who uttered the words and has given cruel treatment to her and hence the deceased was mentally affected and thus, she has committed suicide. Though the prosecution had no evidence to offer that there was any cruel treatment pursuant to the dowry demand, there was a cruel treatment, which compelled her to commit suicide. Hence the act of the accused would attract the penal provision of Section 498-A IPC, for which the lower court has awarded 3 years R.I. 14. Accordingly, the conviction and sentence imposed on the appellant under Section 302 IPC are set aside and he is acquitted of the said charge alone. The fine amount if any paid by the appellant for the offence under Section 302 IPC shall be refunded to him. The conviction and sentence imposed on the appellant under Section 498-A IPC are confirmed. The period of sentence already undergone by the appellant is ordered to be given set off. Accordingly, this criminal appeal is dismissed.