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2009 DIGILAW 1164 (MAD)

Ramesh v. State rep. by Inspector of Police

2009-04-16

R.BANUMATHI, RAJA ELANGO

body2009
Judgment R. Banumathi, J. 1. This appeal arises out of the judgment in S.C.No.13/2006 on the file of Principal Sessions Judge convicting appellant/accused U/s.304 Part (I) IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs.1000/-. 2. Brief facts which led to the conviction of the appellant/acused are as follows:- Deceased Kavitha is the wife of accused Ramesh and their marriage was arranged marriage solemnised on 14.03.1999. PW2-Sugumar is the brother of deceased Kavitha. Accused and deceased Kavitha were living in the house of PW5-Arumugham at Thiruvottiyur as tenant. Out of wed lock a female child Divya (PW4) was born. 3. On 30.11.2003, PW5 neighbour heard cries and when he came out on hearing noise he saw bright flame from the house of deceased. PWs 3 and 5 rushed to the spot and knocked the door, the door was bolted inside. Accused was also present along with PW4-Baby Divya. PWs3 and 5 broke open the door and went inside. They immediately extinguished the fire by covering a blanket and taken Kavitha to Subham Hospital from where she was taken to Kilpauk Medical College hospital at Chennai. 4. On 30.11.2003, PW8-Dr.Selvakumar, Professor, Plastic Surgery and Burns ward admitted Kavitha. Accused had also sustained burn injuries and PW12 Dr. Angelene Selvaraj treated the accused and Ex.P7 (Ex.P26) is the Wound Certificate. 5. PW19 examined the deceased injured Kavitha. Ex.P28 is the Accident register of Kavitha. On information Pws1 and 2 mother and brother of Kavitha went to hospital and found Kavitha with burns all over from her body. 6. On receipt of information from K.M.C hospital, PW17-Pushparaj, Sub Inspector of Police sent to the hospital and recorded statement of Kavitha (Ex.P21) in the presence of PW8-Dr.Selvakumar. In the said statement, deceased Kavitha stated that accused frequently quarrelling with her and that she was in her mothers house for about 5 months and only 3 months prior to the occurrence after panchayat held, she rejoined her husband. Deceased further stated that on 30.11.203 – 7.00 P.M., there ensued wordy quarrel and accused poured kerosene and set fire to her. On the basis of Ex.P21 statement PW17-Sub Inspector of Police registered a case in Cr.No.2560/2003 u/s.307 IPC under Ex.P22-FIR. 7. PW18-Inspector of Police taken up further investigation and examined witnesses (PWs 1 & 2) and the doctors. PW18 had inspected the scene of occurrence on 012. On the basis of Ex.P21 statement PW17-Sub Inspector of Police registered a case in Cr.No.2560/2003 u/s.307 IPC under Ex.P22-FIR. 7. PW18-Inspector of Police taken up further investigation and examined witnesses (PWs 1 & 2) and the doctors. PW18 had inspected the scene of occurrence on 012. 2003 and prepared Ex.P1-Observation Mahazar and Rough Sketch and photographs were also taken. MOs1 to 8 seized from the scene of occurrence and they were sent for chemical analysis. 8. At the request of Inspector of Police, PW14-Judicial Magistrate went to K.M.C hospital and recorded Ex.P13-Dying Declaration from Kavitha. Dr. Vijayalakshmi had given certificate to the effect that Kavitha was conscious throughout the time when the statement was recorded. On the midnight of 012. 2003 Kavitha succumbed to burn injuries. On receipt of death intimation Ex.P24 altered the FIR from u/s.307 IPC to one U/s. 302 IPC. On 012. 2003 inquest was held on the body of deceased Kavitha and Ex.P25 is the Inquest Report. After Inquest, body was sent to autopsy. 9. PW12-Dr.Manoharan conducted autopsy on the body of deceased Kavitha and noted the burn injuries:- "Infected superficial and deep burns over the face, neck, both sides of the chest and abdomen, front of both upper limbs, both thigh, back of both upper limbs 70% burns" PW12 opined that deceased died due to complication of burns and Ex.P8 is the Post Mortem Certificate. 10. On 012. 2003 at about 05.00 p.m., accused was arrested at K.M.C. Hospital and was subjected to judicial remand. On request from the Inspector of Police, statement of witnesses (PW4-Baby Divya, was recorded by the Judicial Magistrate [PW15] U/s.164 Cr.P.C. On receipt of chemical analysis report and on completion of investigation, charge-sheet was filed against the accused U/s.302 IPC. 11. Defence took the plea that due to frustration, deceased had committed suicide setting fire to herself. 12. To substantiate the charges against the accused, in the Trial Court prosecution has examined PWs 1 to 19, Exs.P1 to P28 and MOs 1 to 10 were marked. Accused was questioned u/s.313 Cr.P.C. about incriminating circumstances and evidence. Accused denied all of them and pleaded not guilty. 13. Upon consideration of evidence, learned Principal Sessions Judge held that guilt of accused is proved beyond reasonable doubt and convicted the appellant/accused U/s. 304 Part (I) IPC and imposed life imprisonment and fine as aforesaid in Para 1. 14. Mr. Accused was questioned u/s.313 Cr.P.C. about incriminating circumstances and evidence. Accused denied all of them and pleaded not guilty. 13. Upon consideration of evidence, learned Principal Sessions Judge held that guilt of accused is proved beyond reasonable doubt and convicted the appellant/accused U/s. 304 Part (I) IPC and imposed life imprisonment and fine as aforesaid in Para 1. 14. Mr. T.K. Sampath, learned counsel for the appellant contended that without corroboration, Dying Declaration cannot be the basis for conviction. It was further argued when there are more than one Dying Declaration, the one which is earliest in point of time ought to have been taken into account. Drawing our attention to the evidence of PW4-Baby Divya [child witness], learned counsel for the appellant further contended that child witness was examined without ascertaining her competency to testify and trial court adopted erroneous approach in recording and analysing evidence of child witness which seriously affects the conclusion. Emphasis was laid upon Ex.P28-Accident Register of deceased Kavitha wherein the manner of sustaining injuries is stated as "suicidal burns". 15. Laying emphasis upon Ex.P21-Statement of deceased Kavitha and Ex.P13-Dying Declaration, Mr. P. Kumaresan, learned Addl. Public Prosecutor contended that Exs.P21 and P13 are consistent and those Dying Declarations are voluntary inspiring the confidence of the court and learned Sessions Judge rightly found the appellant-accused guilty of the offence U/s.304 Part (I) IPC. Learned Addl. Public Prosecutor urged to sustain conviction and sentence of imprisonment imposed upon the appellant-accused. 16. On behalf of the appellant-accused, it was submitted that it is a case of no evidence and that there is nothing to show that accused was frequently quarrelling with the deceased. PW1-Savithiri and PW2-Sugumar – mother and brother of the deceased who are to speak about the differences between accused and deceased are strained relationship and have not supported the prosecution case. Both PWs.1 and 2 have stated that there were no differences between accused and deceased and both of them [PWs.1 and 2] have not supported the prosecution case. Even though, PWs.1 and 2 have not supported the prosecution case, there is no force in the contention that it is a case of no evidence. 17. On 012. Both PWs.1 and 2 have stated that there were no differences between accused and deceased and both of them [PWs.1 and 2] have not supported the prosecution case. Even though, PWs.1 and 2 have not supported the prosecution case, there is no force in the contention that it is a case of no evidence. 17. On 012. 2003 – 2.10 A.M., on information from KMC Hospital, PW17-S.I. of Police rushed to the hospital where he examined Kavitha and recorded her statement [Ex.P21] in the presence of PW8-Dr.Selvakumar and PW8 had given Ex.P4 certificate to the effect that Kavitha was in conscious and fit state of mind to give statement. In Ex.P21 statement, Kavitha had clearly stated that accused was addicted to drinks and used to frequently quarrel with the deceased and about their strained relationship. In Ex.P21 also Kavitha had stated about the occurrence on 30.11.2003 and that wordy quarrel ensued between them and accused poured kerosene and set fire to her. 18. On request from Investigating Officer, PW14-Judicial Magistrate had recorded Dying Declaration [Ex.P13] of Kavitha. Dr. Vijayalakshmi had made endorsement [Ex.P12] to the effect that Kavitha was in conscious and fit mental condition to give Dying Declaration. 19. On the night of 30.11.2003, PW19-Dr.Rosy admitted Kavitha who was brought to the hospital by one Santhakumar. Ex.P28 is the Accident Register wherein Kavitha is alleged to have sustained suicidal burns. Laying emphasis upon Ex.P28, learned counsel for appellant mainly contended that the earliest version in Ex.P28 would clearly show that it is a case of suicide which is well reflected in the entries in Ex.P28. Relevant entry in Ex.P28 reads as under:- "Alleged H/o. Suicidal Burns in the above address at about 7.00 pm on 30.11.2003 in the above address. Burns all over body except legs. 20. Appellant is also alleged to have sustained burn injuries on his face, chest and hands. Drawing our attention to Ex.P26-Accident Register of the accused, learned counsel for the appellant submitted that burns on the face, chest and hands of the appellant would clearly show that appellant is not the culprit, but he only attempted to rescue the deceased. In Ex.P26-Accident Register, appellant is shown to have sustained injuries noted as under:- "Rescue Injuries face, chest and both hands" It was mainly argued, the fact that accused also sustained burn injuries probabilises that deceased made suicidal attempts and appellant tried to save her. In Ex.P26-Accident Register, appellant is shown to have sustained injuries noted as under:- "Rescue Injuries face, chest and both hands" It was mainly argued, the fact that accused also sustained burn injuries probabilises that deceased made suicidal attempts and appellant tried to save her. 21. Before we consider the two Dying Declarations and statement as to the manner of sustaining burn injuries, we thought fit to consider the oral evidence which improbabilises the suicide theory put forth by the defence. PW5-Arumugham who is residing in the first floor is the house owner. PW3-Govindasamy is the neighbour and another tenant in the same premises. On hearing the noise, PWs 3 and 5 neighbours went to the house of the appellant-accused and saw house locked inside and PWs.3 and 5 broke open the door and entered inside the house. Appellant and child Divya were found inside the house. The fact that house was locked inside and presence of appellant-accused inside the house and Pws.3 and 5 were to broke open the lock is a strong piece of evidence militating against the appellant-accused. 22. PWs.3 and 5 have spoken in one voice that they brought blanket and put off the fire. PWs.3 and 5 have spoken about the crucial facts:- (i) door was locked inside; (ii) accused was present inside and (iii) PWs.3 and 5 have only put off the fire. Though the above circumstances militate the evidence of PWs.3 and 5, it is pertinent to note that PWs.3 and5 were not at all cross examined. 23. If really, Kavitha had attempted to commit suicide as alleged by the defence, appellant-accused would have immediately called others for help. But the circumstances that after the occurrence the door was locked inside and inspite of knocking door was not opened and PWs.3 and 5 broke open the door improbabilise the defence plea. 24. As pointed out earlier, as to manner of sustaining burn injuries there are three versions including two Dying Declarations. Learned counsel for the appellant mainly contended that Ex.P28, earlier in point of time and which is in favour of the appellant ought to have been taken into account and trial court erred in basing the conviction upon Exs.P21 and P13 Dying Declarations. Much reliance was placed upon the entry in Ex.P28 – suicidal burns. Learned counsel for the appellant mainly contended that Ex.P28, earlier in point of time and which is in favour of the appellant ought to have been taken into account and trial court erred in basing the conviction upon Exs.P21 and P13 Dying Declarations. Much reliance was placed upon the entry in Ex.P28 – suicidal burns. Normally, when the injured is taken to hospital, by and large the person who accompanies the injured would inform the Doctor about the manner of sustaining injuries. Therefore it cannot be conclusively said that entry in Ex.P28 has been entered only on the basis of the statement of the deceased. 25. Let us now examine the two Dying Declarations. Observing that rule requiring corroboration is merely a rule of prudence, in 2009 AIR SCW 1548 [Kalawati v. State of Maharashtra], the Supreme Court held as under:- "6. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspite full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to serve and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, as indicated in Smt. Paniben v. State of Gujarat [ AIR 1992 SC 1817 ]. 26. If the Court is satisfied that the Dying Declaration is true and voluntary it can base conviction on it, without corroboration. In burn cases two equally plausible hypothesis that arise in the judicial mind- Was it suicide or was it homicide? 26. If the Court is satisfied that the Dying Declaration is true and voluntary it can base conviction on it, without corroboration. In burn cases two equally plausible hypothesis that arise in the judicial mind- Was it suicide or was it homicide? If the Dying Declaration projected by the prosecution gets credence the alternative hypothesis of suicide can be eliminated justifiably. For that purpose, a scrutiny of the Dying Declaration with meticulous circumspection is called for. First among such test is to scrutinise whether there are true and voluntary free from tutoring or influence therein. The next test is to see its consistency and coherence whether there is any inherent contradiction therein. 27. Normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make the Dying Declaration looks up to the medical opinion. But where the eye-witness said that the deceased was in a fit and conscious state to make the Dying Declaration, the medical opinion cannot prevail. 28. Exs.P21 and P13 are cogent and consistent, pinpointing the commission of the offence by the appellant. As noted earlier, at the time of recording Ex.P21 statement, PW8-Dr.Selvakumar had issued Ex.P4 certificate to the effect that Kavitha was conscious and that she was in a fit mental condition to give statement. While recording Ex.P13-Dying Declaration, PW14-Judicial Magistrate went to the hospital and put formal questions to Kavitha and satisfied himself that Kavitha was in a fit mental state to give Dying Declaration. Duty Doctor Vijayalakshmi had also made endorsement [Ex.P12] to that effect. On being satisfied about the conscious mental state of Kavitha, PW14 recorded Ex.P13-Dying Declaration. In our considered view, learned Sessions Judge rightly accepted Exs.P21 and Ex.P13 as true and voluntarily made by the deceased. The contention urged by the defence to discredit the Dying Declarations does not merit acceptance. 29. As we have pointed out earlier, PW4-Child Divya was inside the house. Earlier, her statement was recorded U/s.164 Cr.P.C. by PW15-Judicial Magistrate. During trial when child [PW4] was examined, the child witness did not support the prosecution case and she was treated hostile. Learned counsel for the appellant contended that there is nothing to indicate that Sessions Judge put formal questions to child witness to satisfy himself as to the competency of PW4. During trial when child [PW4] was examined, the child witness did not support the prosecution case and she was treated hostile. Learned counsel for the appellant contended that there is nothing to indicate that Sessions Judge put formal questions to child witness to satisfy himself as to the competency of PW4. It was therefore argued that while examining the child witness without putting formal questions, trial court adopted erroneous approach which would vitally affect the conclusion arrived at by the trial court. 30. At the time of examination in Court, PW4-Child Divya was aged 7 years and she was studying in II standard. There is nothing on record to show that formal questions were put to the child witness to determine the competency of PW4. Having regard to the importance of the point urged and lapses in examination of PW4, we deem it fit to highlight some of the aspects in examination of child witness. 31. Whenever a witness appears before Court, the Court will proceed on the basis that he is competent to testify. When a witness is a person of tender years or old age and infirm the Court is alerted to test his competency. Where a witness is a child the court is alerted on the need to decide whether oath can be administered. It is mandatory U/s.118 of Evidence Act that the Court should satisfy about the understanding of the questions by the witness and there is rationality in answering questions due to tender years, extreme old age, diseases, whether of body or mind, or any other cause of the same kind. 32. Ordinarily this satisfaction is to be arrived at by preliminary examination of the witness by the Court. This does not mean that in the absence of preliminary examination the evidence becomes inadmissible since the general rule is in favour of the competency and satisfaction, if necessary, can be arrived in the course of the evidence. However, trial Courts would do well to conduct preliminary examination to satisfy themselves in regard to the competency U/s.118 of Evidence Act as well as under the proviso to Sec.4 (1) of Oaths Act. It is highly desirable to bring on record the questions and answers put to the witness and to make a record of the satisfaction of the Court. 33. It is highly desirable to bring on record the questions and answers put to the witness and to make a record of the satisfaction of the Court. 33. In the case of a child, it depends on the capacity of the child, his appreciation of the difference between truth and falsehood as well as his duty to tell the former. Trial Judge may resort to any examination which will tend to disclose the capacity and intelligence and in the case of an oath, his understanding of the obligation of an oath.[See Rameswar Kalyan Singh v. State of Rajasthan AIR 1952 SC 54 ]. 34. Court has discretion to form its own opinion whether child witness has sufficient understanding to be qualified to be a witness. But in order to find out this, it is not obligatory that preliminary investigation should be made. Although a preliminary examination is not obligatory for the purpose of ascertaining the childs capacity to understand and give rational answers, the court should always question the witness whenever it seems desirable that it should be done. The great importance of such preliminary examination to test the intelligence of a child witness and the desirability of recording that such a test had in fact been made have been emphasised in number of cases. 35. Mere fact that the Court did not interrogate the witness before his examination does not invalidate the trial. The object of the court putting questions to the child witness before examination is that the time of the court may not be wasted, if it is found afterwards that the child is not intelligent enough to give evidence. It is very desirable that the court should preserve on the record some questions and answers (other than its evidence) so that the appellate court might know whether the decision as to the competency of the child witness was right. 36. The decision of this question [whether the child witness has sufficient intelligence] primarily rests with the trial judge, who sees the proposed witness, notices his manners, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence, as well as his understanding of the obligation of oath. 36. The decision of this question [whether the child witness has sufficient intelligence] primarily rests with the trial judge, who sees the proposed witness, notices his manners, his apparent possession or lack of intelligence, and may resort to any examination which will tend to disclose his capacity and intelligence, as well as his understanding of the obligation of oath. It is desirable that the subordinate Courts put on record (in the deposition itself)-(i) The questions put to child witness; (ii) The satisfaction of Court as to competency of the witness; (iii) Whether oath was administered or not to the child witness. 37. Where the guilt or innocence of the accused depends wholly upon the evidence of one small child witness, it is desirable that the Court takes that evidence in the form of questions and answers Courts should, while permitting full scope for cross-examination of a child witness, be careful to see that they are not subjected to unnecessary confusion, harassment or unduly made conscious of the awe of formal court atmosphere and the public gaze. 38. Administration of Oath to a child witness:-Oath or affirmation shall be made by all witnesses, the only exception being the case of a child under 12 years of age where the Court is of the opinion that though he understands the duty of speaking the truth he does not understand oath or affirmation. Oath is to be administered to the child witness after recording an observation that the witness was able to understand the duty of speaking the truth. 39. The only cases in which oath or affirmation should not be administered are cases in which it clearly appears that the witness does not understand the moral obligation of an oath or affirmation or the consequences of giving false evidence. If the judge deliberately refrains from administering affirmation on the ground that the child cannot understand its nature, still the deposition will be admissible. Under the proviso to Sec.4 of Oaths Act, oath may be dispensed with in the case of a child under 12 years of age if the court thinks that it does not understand the nature of an oath. 40. In the instant case, of course, there is nothing to indicate that learned Sessions Judge put formal questions to the child witness to satisfy himself whether the child witness had sufficient understanding. 40. In the instant case, of course, there is nothing to indicate that learned Sessions Judge put formal questions to the child witness to satisfy himself whether the child witness had sufficient understanding. It is also not indicated whether oath or affirmation was made by child witness. In our considered view, mere fact that there is nothing to indicate about the interrogation of the witness[PW4] does not invalidate the trial nor conclusion. 41. Upon evaluating facts and evidence, we are of the view that learned Sessions Judge rightly held the accused guilty of the commission of offence. 42. Next point to be considered is as to what is the appropriate provision under which conviction could be sustained. Learned Sessions Judge convicted the appellant-accused U/s.304 Part (I) IPC and sentenced him to undergo life imprisonment. It emerges from Exs.P21 and Ex.P13 that there were frequent quarrel between husband and wife. On the date of occurrence on 30.11.2003 there was wordy a quarrel between the appellant and deceased. Fourth Exception of Sec.300 IPC covers an act in a sudden fight. Help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. 43. On the date of occurrence there ensued wordy altercation between husband and wife. In such, wordy altercation, appellant poured kerosene and set fire to the deceased. Realising his folly, appellant-accused also seems to have tried to douse the fire. Considering the background facts, the conviction of the appellant-accused U/s.304 Part (I) IPC is confirmed. In our considered view, for the conviction U/s.304 Part (I) IPC, sentence of imprisonment of 10 years would meet ends of justice. 44. In the result, the conviction of the appellant-accused in S.C.No.13/2006 U/s.304 Part (I) IPC is confirmed. Sentence of life imprisonment imposed upon the appellant-accused is modified as 10 years RI and the appeal is allowed to that extent. Fine amount imposed upon the appellant by the trial court is maintained. Learned Prl. Sessions Judge is directed to take necessary steps to secure the appellant-accused and commit him to the prison to undergo the remaining period of sentence.