Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3748 (MAD)

ANTHONIAMMAL v. STATE

2018-10-11

N.SATHISH KUMAR

body2018
JUDGMENT N. Sathish Kumar, J. This appeal is directed against the judgment dated 05.11.2008, made in S.C.No.135 of 2008, on the file of the learned Principal Sessions Judge, Trichy. 2. The brief case of the prosecution is as follows: 2.1. The deceased-Soosairaj is the husband of the accused-Anthoniammal. D.W.1-Belriya Ruby is their daughter. P.W.3-Saleth Mary and P.W.4-Arulappan are the parents of the deceased. P.W.1 and P.W.2 are the neighbours. Both the accused and the deceased were residing at Peria Anaikaraipatti Village. On the date of occurrence, i.e., on 03.04.2008 at about 09.00 a.m., there was a quarrel between the husband and wife, as a result of which, when the deceased went to bath room, the accused poured petrol and set him ablaze and locked the door from outside. On hearing the hue and cry of the deceased, P.W.1 and P.W.2, the neighbours rushed to the place and P.W.1 opened the lock of the bath room and took the deceased, who suffered burn injuries, to the hospital. P.W.3, the mother of the deceased has also seen the burn injuries of the deceased. P.W.4, the father of the deceased also immediately rushed to the hospital along with P.W.1 and when enquired by P.W.1, the deceased informed that her wife has set him ablaze. P.W.3 and P.W.4 were also informed the same thing by the deceased. 2.2. P.W.8-Naraja, the Judicial Magistrate, on intimation from the hospital, recorded the dying declaration-Ex.P.6 from the deceased. 2.3. P.W.10-K.Senthilkumar, Inspector of Police, in the meanwhile, on intimation from the hospital, recorded the statement of the deceased - Ex.P.9 and registered a case in Crime No.74 of 2008 under Section 307 IPC under Ex.P.10-First Information Report and went to the place of occurrence, prepared Observation Mahazar-Ex.P.1 and rough sketch - Ex.P.11 and also seized the Material Objects including petrol can and examined the witnesses. Thereafter, on 04.04.2008, he arrested the accused. Subsequently, the deceased succumbed to injuries in the hospital on 07.04.2008 and hence, he altered the case into one under Section 302 IPC under Ex.P.14-alteration report and conducted inquest over the dead body and prepared inquest report - Ex.P.15 and gave a requisition (Ex.P.7) to the Medical Officer to conduct autopsy. 2.4. P.W.9-Medical Officer conducted autopsy over the dead body and found the following injuries: "Wounds: 1. 2.4. P.W.9-Medical Officer conducted autopsy over the dead body and found the following injuries: "Wounds: 1. Superficial infected burns wound, on the face, front, sides and back of neck, front and back of trunk, leaving lower 1/3 and buttocks, whole of right upper limb, left upper limb leaving the palm unaffected, right lower limb sparing the inner aspect of upper part of thigh and sole of foot, left lower limb leaving unaffected patchy areas. The sole of left foot and perineum not involved. The base of the burnt area is reddish. The floor is covered by greenish yellow colour foul smelling pus. Singeing of hairs present. Peeling and carbonization of cuticle present. 2. I.V. cut down wound on the right leg near the ankle joint. The above mentioned wounds are ante mortem in nature. No other external, internal or bony would present." and issued Ex.P.8-Post-mortem Certificate stating that the deceased died of burns wound and its complications. 2.5. P.W.7-Dr.Ganesan, in the meanwhile, treated the accused on 03.04.2008 and found contusion over 2 cm back of right ear and 9% burn injuries on her face, in respect of which, he has also issued Ex.P.4-Accident Register. 2.6. P.W.10-Inspector of Police, in continuation of investigation, examined the Medical Officers and gave a requisition (Ex.P.17) to the Court to send the Material Objects to the Forensic Lab and finally, laid final report as against the accused for the offences punishable under Sections 342 and 302 IPC. 2.7. It is the version of D.W.1 that on the date of occurrence, when she and her mother were about to go to the School, the deceased prevented the accused from going to School. Thereafter, when the accused got ready to go to the hospital, the accused informed D.W.1 that he will eliminate her mother on the same day. 2.8. Based on the above materials, the trial Court framed charges for the offences under Sections 302 and 342 IPC against the accused. The accused denied the same. In order to prove the charges, on the side of the prosecution, P.W.1 to P.W.10 were examined and Exs.P.1 to P.18 and M.O.1 to M.O.4 were marked. 2.9. When the accused was questioned under Section 313 of Cr.P.C. with reference to the incriminating materials adduced by the prosecution, she denied her complicity in the crime and pleaded innocence. In order to prove the charges, on the side of the prosecution, P.W.1 to P.W.10 were examined and Exs.P.1 to P.18 and M.O.1 to M.O.4 were marked. 2.9. When the accused was questioned under Section 313 of Cr.P.C. with reference to the incriminating materials adduced by the prosecution, she denied her complicity in the crime and pleaded innocence. On the side of defence, her daughter was examined as D.W.1 and no document was marked on her side. 2.10. The trial Court, after considering the oral and documentary evidence, has found the appellant guilty for the offences under Sections 304(ii) and 342 IPC and accordingly, convicted and sentenced her to undergo 6 years rigorous imprisonment and to pay a fine of Rs. 1,000/-, in default, to undergo 3 months rigorous imprisonment for the offence under Section 304(ii) IPC and to undergo 3 months rigorous imprisonment for the offence under Section 342 IPC. Both the sentences were directed to run concurrently. Aggrieved over the said conviction and sentence, the present Criminal Appeal came to be filed. 3. The learned counsel for the appellant would contend that there are three versions of the deceased, which are inconsistent with each other. The prosecution has not explained the injuries sustained by the accused. It is the version of the accused that only the deceased poured petrol over her and when she tried to ward off the same, petrol spread on the deceased, thereby, he sustained injuries. The above aspect has been clearly probabilised. P.W.1 to P.W.4 never whispered anything about the injury sustained by the accused. The learned counsel would further contend that D.W.1's evidence also clearly probabilise the version of the accused. She is the only daughter of the accused. Hence, it is submitted that all these facts clearly create doubt about the prosecution version and, therefore, the accused is entitled for acquittal. 4. Whereas, the learned Additional Public Prosecutor would contend that the deceased has given dying declaration implicating the accused in the crime. The dying declaration, in fact, clearly substantiate the evidence of P.W.1 and P.W.2, who are the neighbours and three versions of the deceased are consistent with each other. Hence, it is submitted that merely because the accused suffered some burn injuries, that cannot be a ground to disbelieve the entire version of the prosecution. The dying declaration, in fact, clearly substantiate the evidence of P.W.1 and P.W.2, who are the neighbours and three versions of the deceased are consistent with each other. Hence, it is submitted that merely because the accused suffered some burn injuries, that cannot be a ground to disbelieve the entire version of the prosecution. Possibility of engulfing or sustaining burn injuries due to throwing of petrol cannot be ruled out. Hence, it is submitted that the prosecution has clearly proved the guilt of the accused. 5. In the light of the above submissions, now, it has to be analysed whether the prosecution has proved the guilt of the accused beyond all reasonable doubt? 6. It is not in dispute that the deceased died out of burn injuries. The medical evidence and the evidence of P.W.9 clearly show that at the time of admission in the hospital, the deceased sustained 90% burn injuries. The injuries start from the front, face and almost entire portion of front side and also back except one third of buttocks. It is the version of the prosecution that on the date of occurrence, i.e., on 03.04.2008, when the deceased went to bath room, the accused poured petrol and set him ablaze and closed the door from outside. P.W.1 and P.W.2 are the neighbours. P.W.3 is the mother of the deceased. In one voice, they have clearly stated that on the date of occurrence, on hearing the hue and cry of the deceased, they rushed to the house of the deceased and opened the bath room from out side and found the deceased sustained burn injuries and immediately, he was taken to the hospital. It is the further version of P.W.1 that the deceased informed that only his wife poured petrol on him and set him ablaze. P.W.3 and P.W.4- parents of the deceased also supported the version of P.W.1. 7. It is to be noted that the deceased was immediately taken to the Government Hospital. Ex.P.16-Accident Register recorded by the Medical Officer clearly indicated that the deceased suffered 90% burn injuries at the time of admission, wherein the deceased informed the doctor that while he was in bath room, the accused poured petrol and set him fire. 8. 7. It is to be noted that the deceased was immediately taken to the Government Hospital. Ex.P.16-Accident Register recorded by the Medical Officer clearly indicated that the deceased suffered 90% burn injuries at the time of admission, wherein the deceased informed the doctor that while he was in bath room, the accused poured petrol and set him fire. 8. P.W.10-Inspector of Police, on intimation from the hospital, immediately went to the hospital and recorded the statement from the deceased, on the basis of which, the First Information Report has been registered. In Ex.P.9-statement also, the deceased implicated the accused about pouring petrol and setting ablaze. 9. It is to be noted that the dying declaration was also recorded by the learned Judicial Magistrate, wherein also, the deceased has clearly implicated the accused that on the day when he went to bath room, the accused poured petrol and closed the door from outside. 10. In fact, three versions of the deceased almost are consistent with each other. The version of the deceased that the room was locked from outside also clearly established from the evidence of P.W.1. On this aspect, there is no cross-examination of P.W.1. 11. It is to be noted that P.W.1 is the neighbour and the independent witness. He has no axe to grind against the accused. He was the one who first reached the spot and removed the lock and rescued the deceased from the bathroom. 12. From the above facts, this Court is of the view that the dying declaration of the deceased does not suffer from any infirmity and clearly implicated the accused in the offence. The accused also sustained 9% burn injuries, as per the version of P.W.7. It is to be noted that merely the accused sustained burn injuries and contusion, the contention of the accused that only the deceased poured petrol on the accused and in order to ward off the same, she suffered burn injuries accidentally, cannot be countenanced for the simple reason that if the petrol of such quantity has thrown on the accused and she was set ablaze, the injury would have been very serious and would not have confined only to the face alone. Further, even assuming that her contention is probable, her conduct creates serious doubt about her version. Further, even assuming that her contention is probable, her conduct creates serious doubt about her version. If any such accidental fire took place in the quarrel, conduct of a normal human being, in such a situation, would be to take some steps either to save or to extinguish the fire. Whereas, the accused has not made any attempt even to extinguish the fire spread on the deceased. On the contrary, the evidence clearly indicated that the door of the bath room was locked from outside. Therefore, the contention of the accused that only the deceased tried to attack the accused and at that time, she sustained injuries accidentally cannot be probabilised. 13. Coming to the evidence of D.W.1, she is a minor at the relevant point of time and though she has given evidence in support of the accused, it is to be noted that possibility of tutoring D.W.1 cannot be ruled out, since she is all along in the custody of the accused. 14. Whereas, the evidence of P.W.1 and P.W.2, who are independent witnesses, clearly show that in fact, the door was locked from outside and they rescued the deceased only by opening the lock. Though the accused was very much present in the house, she has not made any step. This is clearly against her and her conduct becomes relevant under Section 8 of the Indian Evidence Act, 1872. 15. Further, the contention of the appellant's counsel that the accused had sustained burn injuries apart from contusion. In this regard, the evidence of P.W.3, mother-in-law of the accused and P.W.2, the neighbour, when carefully seen, they have clearly stated that prior to occurrence, there was a quarrel between the husband and wife and in fact, the deceased beat the accused at the relevant point of time. Only due to such beating, the accused had sustained injury of contusion. Therefore, merely because the prosecution has not explained injuries on the accused, in a case of this nature, that too, in an occurrence that took place inside the house and the injuries are also not severe, I am of the view that the prosecution need not explain the injuries. Hence, from the dying declaration and other evidence, this Court holds that only the accused poured petrol on the deceased and set him ablaze. Hence, from the dying declaration and other evidence, this Court holds that only the accused poured petrol on the deceased and set him ablaze. The Trial Court took note of the entire facts and finally, convicted the accused under Sections 304(ii) and 342 IPC. 16. It is to be noted that the evidence of P.W.2 and P.W.3 also show that the deceased has attacked the accused on the particular day and their evidence also indicate that the deceased used to beat the accused repeatedly in a drunken stage. P.W.3's evidence further clearly indicates that the deceased also had affair with the sister of the accused, as a result, a child was born. Besides, he had affair with another lady. All these facts would have been lingering in her mind and caused serious mental cruelty on the accused. On the date of occurrence also, she was subjected to physical violence. Only on such persistent provocation, the accused took extreme step of pouring petrol and set the deceased ablaze. 17. Considering these aspects and also considering the fact that the occurrence took place due to provocation and continuous torture and that the accused had only one daughter, I am of the view that the reduction of sentence would meet the ends of justice and accordingly, the sentence awarded by the Trial Court is liable to be modified. 18. However, leniency was shown to the accused, considering the nature of ill treatment and continuous physical abuse caused by the deceased, which, in fact, made the accused to lose self-control and to take such extreme step on that particular day. 19. In the result, this Criminal Appeal is partly allowed in the following terms: (a) The conviction and sentence imposed by the Trial Court under Section 342 IPC are, hereby, confirmed. (b) The conviction passed by the Trial Court under Section 304(ii) IPC against the appellant/Sole Accused is hereby confirmed. However, the substantive sentence of imprisonment imposed by the trial Court is modified and she is directed to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/-, in default, to undergo rigorous imprisonment for three months. (c) Both the sentences shall run concurrently. However, the substantive sentence of imprisonment imposed by the trial Court is modified and she is directed to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/-, in default, to undergo rigorous imprisonment for three months. (c) Both the sentences shall run concurrently. The sentence already undergone by the appellant/sole Accused shall be given set off under Section 428 Cr.P.C. (d) The Trial Court is directed to take steps to incarcerate the appellant/Sole Accused in prison, so as to serve out the remaining period of sentence, if any.