Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 3186 (MAD)

Saravanan v. State

2015-09-30

S.NAGAMUTHU, V.S.RAVI

body2015
JUDGMENT : S. Nagamuthu, J. 1. The appellant is the sole accused in S.C. No. 39 of 2009 on the file of the learned Additional Sessions Judge, Fast Track Court, No. II, Tuticorin. He stood charged for offences under Section 302 IPC. By judgment dated 17.07.2009, the trial Court convicted him under Section 302 IPC and sentenced to undergo imprisonment for life and no fine was imposed. Challenging the said conviction and sentence, the appellant is before this Court with this appeal. 2. The case of the prosecution in brief is as follows: "The deceased in this case was one Mrs. Ambika. The accused is her husband. They were living together at Pattalathukarar compound in Muthaiahpuram Shanmugapuram village. There is nobody else in the house. The accused is a drunkard. There were frequent quarrel between the deceased and the accused. According to the further case, on 30.10.2008, at about 9.00 p.m., when the accused and the deceased were alone in the house, in a quarrel, the accused poured kerosene on the deceased and set fire to her. Then, he himself extinguished the fire and in that process, he sustained injuries. Then, the accused himself took the deceased to the hospital and admitted her." 2.1. P.W.6 - Dr. Saravanan examined the deceased at 9.45 p.m. on 30.10.2008 at the Government Hospital at Tuticorin. At that time, the deceased was conscious. She told the Doctor that while cooking, due to sudden bursting of the kerosene stove, she sustained injuries due to flames. She had sustained 70 - 80% of the injuries. She was admitted as inpatient. On the same day, he admitted the accused also. He had also sustained extensive burn injuries on his body. P.W.6 gave intimation to the police as well as to the Magistrate in respect of the same. 2.2. P.W.10 - the then Sub Inspector of Police, Muthaiahpuram Police Station went to the Government Hospital at Tuticorin and at 5.30 a.m., on 31.10.2008. But at that time, the deceased was not in a position to speak, as she was unconscious. Therefore, he returned to the police station. Again, at 1.45 p.m., he went to the hospital. This time, the deceased was in a position to speak. She gave an oral statement, which P.W.10 reduced to writing. On returning to the police station, he registered a case in Crime No. 358 of 2008 under Section 307 IPC. Ex. Therefore, he returned to the police station. Again, at 1.45 p.m., he went to the hospital. This time, the deceased was in a position to speak. She gave an oral statement, which P.W.10 reduced to writing. On returning to the police station, he registered a case in Crime No. 358 of 2008 under Section 307 IPC. Ex. P14 is the FIR. Then, he forwarded both the documents to the Court and handed over the investigation to the Inspector of Police. 2.3. P.W.16 took up the case for investigation. He proceeded to the place of occurrence, prepared an observation mahazar and a rough sketch in the presence of witnesses. He also recovered a plastic can (M.O.1) from the place of occurrence and a match box (M.O.2). Then, he examined few more witnesses. 2.4. When the deceased was in the hospital, on getting information from the hospital, P.W.14, the then Judicial Magistrate, Tuticorin went to the hospital on 31.10.2008 at 9.10 p.m. He ascertained from the Doctor about the mental fitness of the deceased to make a statement. By putting few preliminary question, he was also satisfied that the deceased was in a fit state of mind to make statement. Then, he recorded the dying declaration of the deceased under Ex. P16. 2.5. The deceased succumbed to the injuries at 2.15 a.m. on 03.11.2008. The case was altered into one under Section 302 IPC. P.W.16 took up the case for further investigation and finally laid charge sheet against the accused. 2.6. Based on the above materials, the trial Court framed charges under Section 302 IPC against the accused. The accused denied the same. In order to prove the case, on the side of the prosecution, 16 witnesses were examined, 21 documents and 2 material objects were marked. 2.7. Out of the said witnesses, P.Ws.1 to 4 had turned hostile and they have not supported the case of the prosecution in any manner. P.W.5 is the Village Administrative Officer, in whose presence, the accused was arrested. P.W.6 is the Doctor, who admitted the deceased in the hospital and treated her. He also gave treatment to the accused. P.W.7 is the Doctor, who conducted autopsy on the body of the deceased. P.W.8 is the daughter of the deceased, who has also stated that the deceased told her that she was set on fire by the accused. P.W.6 is the Doctor, who admitted the deceased in the hospital and treated her. He also gave treatment to the accused. P.W.7 is the Doctor, who conducted autopsy on the body of the deceased. P.W.8 is the daughter of the deceased, who has also stated that the deceased told her that she was set on fire by the accused. P.W.9 is the Head Constable, who has stated about the death intimation given. P.W.10 is the one, who recorded the statement of the deceased and registered a case. P.W.11 is the Constable, who carried the FIR to the Court. P.W.12 is the Head Constable, who had taken the body for postmortem. P.W.13 has stated that there was no failure of electricity at the time of occurrence. P.W.14 the learned Judicial Magistrate has spoken about the dying declaration recorded by him. P.Ws.15 and 16 have spoken about the investigation done by them. 2.8. When the above incriminating materials were put to the accused under Section 313Cr.P.C., he denied the same as false. However, he did not choose to examine any witnesses on his side nor marked any documents. Having considered all the above, the trial Court convicted the accused and that is how, he is before this Court with this appeal. 3. We have heard the learned counsel for the appellant, the learned Additional Public Prosecutor for the respondent and we have also perused the records carefully. 4. In this case, the prosecution relies on the dying declaration recorded by P.W.14 on 31.10.2008 at 9.10 p.m., wherein, the deceased had stated that the accused poured kerosene and set fire to her. Of course, it is the settled legal position of law that such dying declaration is substantive evidence and based on the same, conviction can be had, provided, the same is proved beyond any reasonable doubt and the same inspires the confidence of the Court. 5. Here, in this case, according to the learned counsel for the appellant, there are lot of doubts regarding the same. For that, the learned counsel would point out that at the earliest point of time, when the deceased was taken to the Doctor, she told P.W.6 that she sustained the burn injuries, while cooking and on account of bursting of kerosene stove. This being the earliest statement, absolutely, there is no explanation by the prosecution, so as to disbelieve the same. This being the earliest statement, absolutely, there is no explanation by the prosecution, so as to disbelieve the same. This itself is a dying declaration. 6. Next comes the evidence of P.W.10 - the Sub Inspector of Police. According to him, on receiving the intimation from the hospital, he went to the hospital on 31.10.2008, at 5.30 a.m. At that time, the deceased was unconscious and she was not in a position to speak. This is the positive case of the prosecution itself. Therefore, it is crystal clear that the deceased was not conscious and she was unconscious for some time. The learned Judicial Magistrate had gone to the hospital only at 9.10 p.m. on 31.10.2008. It is true that at that time, the deceased was conscious. But during the interregnum period, the Doctor has stated that the deceased was surrounded by the relatives. Therefore, there is every possibility for the deceased being tutored during the interregnum period. There is no reason to reject the said inference at all. Apart from that there is a oral evidence of P.W.8 - the daughter of the deceased. She has stated that the deceased told her that the accused had set fire to her. She attested the complaint also. Thus, it is crystal clear that after the arrival of P.W.8 and other relatives, the deceased had taken a different stand and made a statement implicating the accused. 7. In a case, where there are multiple dying declarations, if it is possible for this Court to accept one dying declaration and to reject the others, it is possible to act on the said accepted dying declaration. But for accepting the one dying declaration and to reject the others, there are to be sound reasons placed by the prosecution. More particularly, in a case of multiple dying declarations, when one dying declaration is in favour of the accused, to reject the same and to accept the dying declaration against the accused, the Court should find sufficient reasons. Here, in this case, we do not find any reason to reject the earliest dying declaration given by the deceased to the Doctor. The doubt that the deceased would have been tutored by the relatives has also not been obviated by the prosecution. The fact that the deceased was unconscious for some time has also been spoken to by P.W.10. Here, in this case, we do not find any reason to reject the earliest dying declaration given by the deceased to the Doctor. The doubt that the deceased would have been tutored by the relatives has also not been obviated by the prosecution. The fact that the deceased was unconscious for some time has also been spoken to by P.W.10. For these reasons, we are of the view that it is not safe to sustain the conviction of the accused, solely based on the dying declaration given by the deceased to the learned Judicial Magistrate. In such view of the mater, the prosecution has failed to prove the case beyond any reasonable doubt. 8. In the result, the criminal appeal is allowed; the conviction and sentence imposed on the appellant is set aside and the appellant is acquitted of all the charges. Bail bond shall stand cancelled.