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2015 DIGILAW 1470 (MAD)

G. K. Parthasarathy v. Santhi

2015-03-17

M.SATHYANARAYANAN

body2015
Judgment 1. The revision petitioner is P.W.1 and the maternal uncle of the deceased Rasathi and aggrieved by the order of acquittal, dated 30.11.2007, passed in S.C.No.58 of 2007 by the Sessions Judge, (Mahila Court), Trichy, has filed the present Criminal Revision Case. 2. In the said Sessions Case, three persons were arrayed as accused, namely, Vijayakumar - husband of the deceased; Santhi - sister of A-1/sister-in-law of the deceased Rasathi and Kaliya Perumal - father of A-1 & A-2 and father-in-law of the deceased Rasathi and they were charged for the commission of the offences under Sections 498-A, 304-B read with 34 I.P.C. 3. During the trial, the husband of the deceased Rasathi/A-1 has committed suicide and therefore, the charges framed against him got abated and accordingly, A-2 and A-3 were arrayed as A-1 and A-2 respectively and after full-fledged trial, they were acquitted and the defacto complainant/P.W.1, aggrieved by the said order of acquittal, has filed this revision. 4. The facts leading to the filing of this revision, briefly narrated, are as follows: 4.1. The marriage between the deceased Rasathi and the said Vijayakumar (since dead) was solemnised in the year 2004 and out of the wedlock, a girl child, namely, Gokulapriya was born. The deceased Vijyakumar/husband of the deceased and A-2/second respondent, were living as a joint family and the husband of the deceased was employed as an Accountant in a grocery shop. He used to give his earnings to his sister, namely, A-1/first respondent and he did not care to maintain his wife and the child and also suspected her character. 4.2. The prosecution further alleges that the husband of the deceased has also asked her to get a sum of Rs.50,000/- from her maternal uncle and since it was not acceded, she was subjected to torture and cruelty. Subsequently, the husband of the deceased left her company and was living in the house of his sister/A-1 and in spite of persistent requests made by his wife, he did not choose to join her company and on 28.09.2006, the husband of the deceased has also asked her to commit suicide. The deceased Rasathi went to the house of A-1 along with her child on that day itself and asked A- 1/first respondent to sent her husband back to her and A-1/first respondent replied that he will continue to reside in her house only. The deceased Rasathi went to the house of A-1 along with her child on that day itself and asked A- 1/first respondent to sent her husband back to her and A-1/first respondent replied that he will continue to reside in her house only. The deceased Rasathi, in response to the same, has threatened them that she would commit suicide by self-immolation and A-1/first respondent told her that if she wants to do so, she can do so and immediately, the deceased Rasathi poured kerosene upon her and her minor daughter and immolated themselves. 4.3. Thereafter, the girl child was taken to Child Jesus Hospital and was admitted and without responding to the treatment, the child died on 29.09.2006 at about 03.30 a.m. The deceased Rasathi was taken to the Government Hospital, Trichy and she also died on 29.09.2006 at about 10.30 a.m., not responding to the treatment. In this regard, P.W.1 went to All Women Police Station, Fort and lodged a complaint on 29.09.2006 under Ex.P.1, based on which, P.W.17 - Station House Officer, has registered a case in Cr.No.103 of 2006, against all the three accused for the alleged commission of the offences punishable under Sections 498-A, 306, 309 and 323 I.P.C. The printed F.I.R was marked as Ex.P.9. \ 4.4. P.W.18, was the jurisdictional Revenue Divisional Officer and on receipt of the F.I.R, has conducted the inquest on the bodies of both the deceased, as the death of the deceased Rasathi has occurred within seven years from the date of her marriage and the inquest report was marked as Ex.P.11 and the xerox copies of the statements of witnesses during inquest, were marked as Ex.P.12 and his final report was marked as Ex.P.13, wherein he opined that the deceased Rasathi has committed suicide on account of harassment due to dowry. 4.5. P.W.21, on receipt of the copy of the F.I.R, has proceeded to the scene of occurrence on 29.09.2006 and at about 11.30 p.m., prepared the observation mahazar and sketch, marked as Exs.P.4 and P.5, respectively, in the presence of P.W.8 and another and also seized the material objects found in the place of occurrence and thereafter, examined P.W.1, P.W.2 and other witnesses and recorded their statements and on the same day, effected the arrest of the husband of the deceased and subsequently, sent his for judicial custody. Thereafter, he sent a requisition through the jurisdictional Magistrate for conducting the post-mortem on the bodies of both the deceased. 4.6. On receipt of the body of the deceased Rasathi, P.W.20 along with Dr.Renukadevi, conducted autopsy and concluded that she died on account of burn injuries. On 29.09.2006, he conducted the post-mortem on the body of the girl child and gave a similar opinion. The post-mortem certificates were marked as Exs.P.16 and P.17 respectively. 4.7. P.W.21 after completion of the investigation and after collecting the materials, has filed the final report charging the accused for the commission of the offences under Sections 498-A, 304-B read with 34 I.P.C, on the file of the Court of the Judicial Magistrate No.V, Trichy and was taken on file in P.R.C.No.6 of 2007. 4.8. The committal Court, on appearance of the accused, has furnished them with the copies of documents under Section 207 Cr.P.C., and having found that the case is exclusively triable by the Sessions Court, committed the same to the Court of Principal Sessions Judge, Trichy, which, in turn, made over the same to the Mahila Court. 4.9. The trial Court, on appearance of the accused, has framed the charges under Sections 498-A, 304-B read with Section 34 I.P.C and A-1 and A- 2/respondents 1 and 2 herein, who are alive at that time, pleaded not guilty to the charges framed against them. 4.10. The prosecution in order to sustain their case, has examined P.W.1 to P.W.22 and marked Exs.P.1 to P.21 and also marked M.O.1 and M.O.2. 4.11. Both the accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973, with regard to the incriminating circumstances made out against them in the evidence tendered by the prosecution and they denied it as false. 4.12. On behalf of the accused, no oral evidence was let in. However, Exs.D.1 (negatives - 2 series) and D.2, were marked and two photographs were also marked as material objects on the side of the accused. 4.13. The trial Court on consideration of the oral and documentary evidence, has acquitted both the accused and hence, this revision. 5. 4.12. On behalf of the accused, no oral evidence was let in. However, Exs.D.1 (negatives - 2 series) and D.2, were marked and two photographs were also marked as material objects on the side of the accused. 4.13. The trial Court on consideration of the oral and documentary evidence, has acquitted both the accused and hence, this revision. 5. The learned Counsel for the revision petitioner/P.W.1 has drawn the attention of this Court to the impugned judgment and would contend that the testimonies of P.W.1 to P.W.4, P.W.10 and P.W.11, have clearly proved the fact that the deceased Rasathi has committed suicide by self-immolation on account of cruelty exhibited by her sister-in-law and father-in-law/A-1 and A-2 and it is also supported through the dying declaration recorded by P.W.22, marked as Ex.P.21 and the trial Court, without properly appreciating the oral and documentary evidence, has erroneously acquitted both the accused and prays for interference. 6. Per contra, learned Counsel for the respondents 1 and 2/A-1 and A-2 would contend that even as per the dying declaration, marked as Ex.P.21, neither the respondents 1 and 2/A-1 and A-2 nor the husband of the deceased Rasathi has been implicated in any manner and the second portion of the dying declaration merely states about the fact of harassment and since the dying declaration did not implicate the accused in any manner, the prosecution is bound to corroborate the version of the deceased given in the dying declaration on material particulars through the testimonies of other witnesses, but they miserably failed to do so and the trial Court on a proper appreciation of materials placed before it, has rightly acquitted both the accused and prays for the dismissal of this revision. 7. The learned Additional Public Prosecutor for the third respondent would contend that the State did not prefer any appeal against the acquittal. 8. This Court has carefully considered the rival submissions and perused the oral and documentary evidence and the impugned judgment passed by the trial Court. 9. Ex.P.1 - complaint was given by the revision petitioner/P.W.1/maternal uncle of the deceased Rasathi and according to him, after the demise of her parents, as a child of an young age, he only brought up the deceased Rasathi and her sister. 9. Ex.P.1 - complaint was given by the revision petitioner/P.W.1/maternal uncle of the deceased Rasathi and according to him, after the demise of her parents, as a child of an young age, he only brought up the deceased Rasathi and her sister. He would depose that the deceased Rasathi used to tell him about the torture inflicted by her husband often and the act of her husband living in the house of his sister/A-1 and the torture inflicted by her father-in-law/A-2, who at odd hours, asked the deceased to prepare foods. 10. The testimonies of the relatives, the uncle of the deceased Rasathi/P.W.1 and the brother of the deceased Rasathi would disclose that the deceased Rasathi used to tell them often about the torture inflicted mainly by her husband. After committing the self-immolation, the deceased Rasathi was admitted in the Government Hospital, Trichy and on intimation, P.W.22 - Judicial Magistrate, went to the Hospital and after ascertaining the physical and mental capability of the deceased Rasathi, has recorded her dying declaration, marked as Ex.P.21. 11. It is relevant to extract hereunder the dying declaration of the deceased Rasathi: (“Tamil”) (extracted as such). 12. The rough translation of the above dying declaration in English, is that "in the evening hours, I boiled the milk in my sister-in-law's house (A- 1) and at that time, stove got burst and fire engulfed on her. Her cousin brother took her to the hospital. Her husband, sister-in-law Tamilmani, Santhi (A-1), her husband (since dead), her brother-in-law, her father-in-law (A-2) beat her and drove out of the house. Her husband asked her to die and at the time of stove burst, her husband and her sister-in-law (A-1) were present and they did not save her.". 13. Thus, the dying declaration of the deceased Rasathi did not implicate the accused in any manner and the latter portion of the dying declaration speaks about the act of beating inflicted by her husband and other relatives and the act of her sister-in-law and her husband in not saving her while she was engulfed by fire on account of stove burst. 14. P.W.17 was the Inspector of Police, All Women Police Station, Fort and she registered the F.I.R on the basis of Ex.P.1 - complaint given by the revision petitioner/P.W.1. 14. P.W.17 was the Inspector of Police, All Women Police Station, Fort and she registered the F.I.R on the basis of Ex.P.1 - complaint given by the revision petitioner/P.W.1. P.W.17, in her cross-examination, admitted that she received the information about the admission of the deceased Rasathi with burn injuries at about 09.40 p.m., on 28.09.2006 and she immediately proceeded to the Government Hospital, Trichy and saw the victim and she was in conscious state of mind. However, she did not record her statement and when a specific question was put to P.W.17 as to why she did not record her statement, she has no special reasons for doing so. 15. P.W.21, who conducted and concluded the investigation, in her cross-examination, would depose that after admission in the Government Hospital, Trichy, the deceased Rasathi survived for 12 hours and a specific question was put to him as to why her statement was not recorded and in response to the said allegation, P.W.21 answered that since she was unconscious, her statement could not be recorded. 16. P.W.21 would further admit that while she gained conscious, he made an attempt to record her statement and he did not record the opinion of the Doctor as to her physical and mental capability to give the statement. He will further admit that as per the copy of Accident Register, marked as Ex.P.14, the deceased Rasathi was admitted by Damodharan and Seenivasan and both of them were not examined during the investigation. 17. It is the settled position of law that the Court can act on the basis of the dying declaration if it is true and reliable and it was recorded by a person when the deceased was in a fit state of mind both physical and mental and it can be the sole basis for recording the conviction. If there are multiple dying declarations and there are inconsistencies between them, the dying declaration recorded by the higher official like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about it's truthfulness. (Lakhan v. State of M.P. reported in (2010) 8 Supreme Court Cases 514.) 18. If there are multiple dying declarations and there are inconsistencies between them, the dying declaration recorded by the higher official like a Magistrate can be relied upon, provided that there is no circumstance giving rise to any suspicion about it's truthfulness. (Lakhan v. State of M.P. reported in (2010) 8 Supreme Court Cases 514.) 18. In the case on hand, P.W.17 failed to over any plausible explanation as to why she failed to record the statement of the victim while she was in a conscious state of mind and also there is contradiction between the testimonies of P.W.17 and P.W.21 as to the capability of the victim to give a statement. 19. According to P.W.22 - Judicial Magistrate, who recorded the dying declaration of the deceased Rasathi, after ascertaining the mental capability as certified by the Doctor, she has recorded the dying declaration under Ex.P.22 and admittedly, the Doctor who issued the certificate regarding the mental capability, was not cited as a witness. 20. Insofar as A-2/father-in-law/second respondent is concerned, the only allegation levelled against him is that during night hours, he asked his daughter-in-law/deceased Rasathi to prepare omelette and she was beaten in that context. 21. Insofar as A-1/sister-in-law/first respondent is concerned, the allegation is that her husband continues to live in the house of his sister, namely, the first respondent herein and when the deceased Rasathi went and asked her to send her husband back, she stated that her husband continues to live in her house only and the deceased Rasathi threatened that if her husband was not sent back, she would commit suicide by self-immolation and A- 1/first respondent told her that if she wants to do so, she can do so and immediately, the deceased Rasathi poured kerosene upon her and her minor daughter and self-immolated themselves. 22. As pointed out earlier, the dying declaration, marked as Ex.P.22, is in complete variance with the complaint given by P.W.1 under Ex.P.1. 23. A perusal of the testimonies would also disclose that the allegations are mainly levelled against the husband of the deceased, namely, Vijayakumar, who, during the course of the trial, has committed suicide and the charges against him got abated on account of his demise. 24. 23. A perusal of the testimonies would also disclose that the allegations are mainly levelled against the husband of the deceased, namely, Vijayakumar, who, during the course of the trial, has committed suicide and the charges against him got abated on account of his demise. 24. The trial Court found that the dying declaration is in variance with the complaint under Ex.P.1, given by P.W.1 and there is no ample corroboration insofar as the said dying declaration coupled with the fact that the witnesses examined, who are the close relatives of the deceased Rasathi, did not support the case of the prosecution in entirety and thought fit to award the benefit of doubt and acquitted both the accused. 25. In the considered opinion of this Court, the infirmities pointed out in the above said paragraphs, had shaken the very foundation laid down by the prosecution and therefore, the conclusion reached by the trial Court for acquitting both the respondents 1 and 2/A-1 and A-2, cannot be said to be improper or unsustainable. 26. This Court, on an independent application of mind to the entire materials placed before it as well as the original records, is of the view that there is no error apparent or infirmity in the reasons assigned by the trial Court for acquitting the respondents 1 and 2/A-1 and A-2. 27. In the result, this Criminal Revision Case is dismissed, confirming the order dated 30.11.2007, passed in S.C.No.58 of 2007, by the learned Sessions Judge (Mahila Court), Trichy.