JUDGMENT
M. Karpagavinayagam, J.
1. For having caused the death of his wife by pouring kerosene and setting fire to her body, Mani, the accused, has been convicted for the offence under Section 302 I.P.C. Challenging the same, this appeal has been preferred.
2. The case of the prosecution in brief is as follows:-
(i) The deceased Rajeswari and her husband, accused Mani were working as beedi workers. They are having four daughters. P.W.1 Dhanalakshmi is the first daughter. P.W.2 Pabitha is the second daughter. The accused used to take liquor daily and invariably beat the deceased as soon as he comes back home. He suspected the fidelity of the deceased and so he used to accuse the deceased of having illicit intimacy with one Parasuraman, a neighbour.
(ii) On 24.09.1998 at about 08.30 p.m., the deceased was at home with her four daughters. At that time, the accused came there and picked up quarrel with the deceased. He scolded her stating that she was having illegal sexual connection with the neighbour. Having not satisfied with the scolding, the accused took a burning bottle amp and removed the top of the bottle and poured kerosene on the deceased and threw the burning wick on the saree of the deceased. Due to this, the deceased caught fire. The deceased, the children P.W.1 and P.W.2 and other two children raised alarm. On seeing the neighbours coming near, the accused ran away. P.W.1, the first daughter, went to P.W.3 the sister of the deceased, who is residing in a nearby house and informed her. As soon as P.W.3 was informed, she rushed to the house of the deceased. In the meantime, P.W.2 and the neighbours poured water over the body of the deceased and put out the fire. The deceased was found with injuries all over the body. When the deceased was enquired by P.W.3 as to how she sustained the injuries, she stated that the accused poured kerosene over her body and set fire to her. Immediately thereafter, the deceased was taken to the Government Pentiland Hospital, Vellore.
(iii) P.W.5 Dr. Dhayalan, Medical Officer, Government Pentiland Hospital, Vellore, admitted her at about 10.00 p.m. in the hospital and issued Ex.P.3 accident register. When P.W.5 the Doctor examined her, the deceased told him that her husband poured kerosene over her body and set fire to her. Therefore, at 10.15 p.m., he sent Ex.P.4 intimation to the Police about the admission of the deceased in the hospital. P.W.8 Dr. Valarmathi, Assistant Surgeon, attached to the Government Pentiland Hospital, sent requisition to the concerned Judicial Magistrate to record the dying declaration of the deceased.
(iv) P.W.9 the Judicial Magistrate No. IV, Vellore, arrived at the hospital at about 10.30 p.m. and recorded the dying declaration of the deceased between 10.55 p.m. and 11.15 p.m. P.W.8 Dr. Valarmathi was present while recording the dying declaration. She also issued Ex.P.9 Certificate stating that the deceased was conscious and in a fit state of mind to give dying declaration. Ex.P.10 is the dying declaration recorded by P.W.9 the Judicial Magistrate.
(v) On receipt of the intimation from the Doctor, P.W.10, Police Constable attached to the Outpost Police Station of the Government Hospital, came to the hospital at about 12.30 midnight on 24/25.09.1998 and recorded a complaint from the deceased, which is Ex.P.11.
(vi) On 25.09.1998 at 04.00 a.m., P.W.11, the Head Constable attached to Virinchipuram Police Station received Ex.P.11 complaint handed over by P.W.10 and registered a case in Crime No. 526 of 1998 for the offence under Section 307 I.P.C. against the accused. Ex.P.13 is the First Information Report.
(vii) On receipt of Ex.P.13 F.I.R. on 25.09.1998 at about 07.30 a.m., P.W.13 the Inspector of Police took up investigation. He went to the hospital and examined the deceased and obtained her statement, Ex.P.15.
(viii) P.W.2 was also found with burn injuries. Therefore, she was sent to P.W.5, the Doctor, who issued Ex.P.5 accident register.
(ix) In the meantime, P.W.13, the investigating officer went to the scene of occurrence, prepared Ex.P.1 observation mahazar and drew Ex.P.16 rough sketch. He recovered M.O.1 bottle-lamp with kerosene smell and burnt wick and M.O.2 burnt flowered polyester saree from the scene of occurrence under Ex.P.2 mahazar. On 26.09.1998, he arrested the accused. As the accused was found with burn injuries, he was sent to P.W.6, the Doctor, who, after examining the accused, issued Ex.P.6 accident register.
(x) On 30.09.1998, P.W.13 received Ex.P.12 death intimation from the hospital. Therefore, he altered the case from Section 307 I.P.C. into Section 302 I.P.C. and sent Ex.P.14 Express First Information Report to the higher officials. On the same day between 10.00 a.m. and 01.00 p.m., he conducted inquest over the body of the deceased. Ex.P.17 is the inquest report. During inquest, he examined P.W.1, P.W.2, P.W.3, witnesses Lakshmi, Poonkodi, Selvi, and Arumugam and recorded their statements. Then, the body of the deceased was sent for postmortem with Ex.P.7 requisition.
(xi) P.W.7 Dr. Maragadham conducted autopsy on 30.09.1998 at 02.15 p.m. and noticed the deceased sustaining second degree burns over face, neck, both upper limbs, front and back of chest, upper abdomen up-to umbilicus. She gave Ex.P.8 postmortem certificate stating that the deceased died of septicemia due to burn injuries.
(xii) In continuation of the investigation, P.W.13 the investigating officer examined the other witnesses and ultimately, after completion of the investigation, he filed the charge-sheet against the accused under Section 302 I.P.C.
3. On the side of the prosecution, P.W.1 to P.W.13 were examined, Exs.P.1 to P.17 were filed and M.Os.1 to 3 were marked.
4. When the accused was questioned under Section 313 Cr.P.C., he stated that when he was sleeping along with his wife, the deceased, inside the house, the lamp accidentally fell on her and due to the same, she caught fire and while he was trying to save her, he also sustained injury on the hand and as such, he had not committed the crime in question.
5. The trial Court, having regard to the materials available on record, concluded that the prosecution has established its case beyond reasonable doubt, and convicted the accused for the offence under Section 302 I.P.C. Hence the appeal.
6. Mr. S. Parthasarathy, learned Counsel appearing for the appellant took us through the entire evidence. According to him, the evidence of P.W.1 and P.W.2, who are child witnesses, cannot be relied upon; the dying declaration given by the deceased to P.W.9, the Judicial Magistrate cannot be given due credence for the reason that the presence of P.W.1 and P.W.2 at the time of the occurrence inside the house was not mentioned therein; the comparison of dying declarations given to the various authorities would go to show that the prosecution case is not consistent; P.W.1 was not able to identify M.O.1 lamp in the Court, the explanation given by the accused in the statement under Section 313 Cr.P.C. that the deceased caught fire due to accidental fall of lamp, is more probable, and therefore, the appellant is entitled to be acquitted.
7. We have heard the learned Additional Public Prosecutor on these aspects.
8. We have considered the rival contentions urged by the Counsel for parties and also gone through the records.
9. The materials collected by the investigating agency and produced before the Court for proving the offence against the accused could be categorized as follows:-
(i) The evidence of eye-witnesses P.W.1 and P.W.2;
(ii) The oral dying declaration given by the deceased to P.W.3 her sister;
(iii) The statement implicating her husband given by the deceased to P.W.5 the Doctor as referred to in Ex.P.3 accident register;
(iv) Ex.P.10 dying declaration recorded by P.W.9 the Judicial Magistrate in the presence of P.W.8 the Doctor, who issued Ex.P.9 fitness certificate;
(v) Ex.P.11 complaint recorded by P.W.10 the Constable attached to the Outpost Police Station situated in to the Hospital Campus, on receipt of Ex.P.4 intimation from P.W.5 the Doctor;
(vi) Ex.P.15 statement given by the deceased recorded by P.W.13 the Investigating Officer during the course of investigation.
10. On the basis of these materials, the prosecution claims that the accused only poured kerosene by throwing the lamp on the saree of the deceased, as a result of which, she caught fire and consequently, died later.
11. In regard to the evidence of P.W.1 and P.W.2, it is contended that they are child witnesses and therefore, their evidence may not be relied upon. We are unable to accept this contention as we are of the view that they are truthful and reliable witnesses. Furthermore, it is noticed that the necessary questions were put by the trial Court before they were examined as witnesses and they were able to understand the questions and give the rational answers. A perusal of the depositions given by P.W.1 and P.W.2 both in chief and cross examination would clearly indicate that they witnessed the occurrence and their depositions are in confirmity with the statements made during investigation. Furthermore, the manner of occurrence as spoken to by P.W.1 and P.W.2 has been clearly mentioned in the dying declarations made by the deceased to the various authorities. That apart, P.W.1, on seeing that the deceased caught fire due to the act of the accused, ran to the house of P.W.3, the sister of the deceased, and informed her, and immediately, P.W.3 rushed to the house of the deceased and saw the deceased lying down with burn injuries. P.W.2, who was in the house at the time of occurrence, tried to put out the fire along with others by pouring water on the body of the deceased, due to which, P.W.2 sustained burn injuries. For the injuries sustained by P.W.2, she was given treatment by P.W.5 the Doctor. Ex.P.5 is the accident register. In the light of these materials, there is no doubt in the veracity of the depositions given by P.W.1 and P.W.2, who are the eye witnesses.
12. In regard to the evidence of P.W.3, who speak about the oral dying declaration given by the deceased, it is noticed that P.W.3 is residing in the same Village and her house is situate nearby to that of the deceased. As soon as she was informed about the incident, she rushed to the house of the deceased and on enquiry, the deceased told her that the accused only poured kerosene and set fire to her body. Immediately, she was taken to the hospital by P.W.3. Ex.P.3 accident register would show that the deceased was brought to the hospital by P.W.3 Malliga.
13. In regard to the statement given by the deceased to the Doctor, we have got the evidence of P.W.5 the Doctor as well as Ex.P.3 accident register. A perusal of Ex.P.3 and the deposition of P.W.5 would clearly indicate that the deceased told the Doctor that the accused only caused the burn injuries on her body.
14. P.W.8, the Doctor, on seeing that the deceased was in a precarious condition, sent requisition to the Judicial Magistrate for recording her dying declaration. Accordingly, P.W.9 the Judicial Magistrate No. IV, Vellore came to the hospital on the very same date and recorded the dying declaration at 10.55 p.m. P.W.8 the doctor issued Ex.P.9 fitness certificate stating that the deceased was conscious and fit state of mind throughout when the dying declaration was recorded. About this aspect, P.W.8 the Doctor and P.W.9 the Judicial Magistrate would speak clearly.
15. On receipt of Ex.P.4 intimation, P.W.10 the Constable attached to the Outpost Police Station came to the hospital and recorded Ex.P.11 complaint from the deceased. The same was handed over to P.W.11 the Head Constable of Vrinchipuram Police Station on 25.09.1998. The same was registered as a case by P.W.11 at 04.00 a.m. Ex.P.13 is the F.I.R. These facts have been spoken to by P.W.10 and P.W.11. A perusal of Ex.P.11 complaint given by the deceased would clearly indicate that the accused only poured kerosene and set fire to her body.
16. The next piece of evidence is Ex.P.15, the statement recorded by P.W.13 the Investigating Officer. After receipt of the message, P.W.13 came to the hospital and found the deceased conscious and therefore, recorded a statement under Section 161 Cr.P.C. from her. Since she died later, the said statement has been marked as Ex.P.15.
17. A perusal of Ex.P.3 accident register referring to the statement of the deceased given to P.W.5, the Doctor, Ex.P.10 dying declaration given to P.W.9, the Judicial Magistrate, Ex.P.11, the statement given by the deceased to P.W.10, the Constable and Ex.P.15 statement given to P.W.13 the investigating officer, would clearly show that the prosecution case is consistent and there is no vital variations between the dying declarations. Though there are some additional factors in Ex.P.11 and Ex.P.15, it cannot be stated that there are contradictions in these dying declarations. The earlier document in this case is Ex.P.3 accident register, which was issued by P.W.5, the Doctor on 24.09.1998 at 10.00 p.m. In that document, it has been clearly mentioned that the burn injuries on the deceased were caused by the accused alone. In the light of the contents of Ex.P.3, it has to be held that the other documents, such as Exs.P.10, P.11 and P.15 are true and can be acted upon.
18. Yet another factor to be noticed is the conduct of the accused. It is not disputed that the accused was inside the house at the time of the occurrence. As a matter of fact, the accused himself would state that he was in the house and he tried to save her wife when she caught fire while the lamp was falling on her accidentally. P.W.6, the Doctor also through Ex.P.6 accident register would state that the accused was found with burn injuries. A statement was made by the accused to P.W.6 Doctor that he sustained injuries on 24.09.1998 in his house while he was trying to put out the fire. Admittedly, when such is the defence, there is no reason as to why the accused did not take steps to take the deceased to hospital. As indicated above, the deceased was brought to the hospital only by P.W.3. The accused was arrested only on 26.09.1998. This shows that he was absconding for two days. There is no explanation as to why he was absconding on these two days. If the deceased caught fire due to the accidental fall of the lamp, the accused would have at-least gone to the hospital to see his wife and to enquire about her health condition. This was not done by the accused. As noted above, there is no explanation at all for his abscondence for two days.
19. In such a fact situation, we are of the view that the circumstances brought out by the prosecution would be sufficient to hold that the accused only caused the burn injuries to the deceased by throwing the burning lamp with kerosene, which resulted in the death of the deceased.
20. Consequently, the appeal has no merits and the same is liable to be dismissed. Accordingly, the same is dismissed confirming the conviction and sentence imposed upon the appellant/accused by the trial Court.