IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21-10-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.368 of 2009 Madesh ..Appellant ..vs.. State rep.by Inspector of Police, Mahendra Mangalam Police Station, Marand Halli, Dharmapuri District. (Crime No.211 of 2006) ..Respondent Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, against the judgment of the learned Principal Sessions Judge, Dharmapuri District, made in S.C.No.23 of 2008, dated 24.09.2008. For Appellant : Mr.M.G.Sankaran For Respondent : Mr.Babu Muthu Meeran, A.P.P., JUDGMENT
(Judgment of the court was delivered by M.CHOCKALINGAM, J.)
Challenge is made to a judgment of the Principal Sessions Division, Dharmapuri District, made in S.C.No.23 of 2008, whereby the single and sole accused stood charged, tried and found guilty under Section 302 I.P.C.and awarded the life imprisonment along with a fine of Rs.2,000/-, in default to undergo three months rigorous imprisonment.
2. Short facts, necessary for the disposal of the appeal, can be stated thus:
(a) The deceased was the wife of the appellant/accused, P.W.1 is the brother of the deceased and P.W.2 is the wife of P.W.1. They were all living at Pommanur Village. They were cobblers by profession and the house of P.Ws.1 and 2 is situated abutting the house of the deceased. The marriage between the accused and the deceased took place ten years before the date of incident and they were living happily. There were frequent quarrels between the deceased and the appellant and on the date of occurrence i.e., on 30.08.2006, the accused came in a drunken mood and there was a quarrel about the missing of Rs.100/-. The deceased informed P.W.2 that it was the accused, who took it in a drunken mood and spent the same, but, on the contrary, the accused was telling that it was the deceased, who took Rs.100/-, and thus, there was a quarrel in the night hours. In that quarrel, the accused took the kerosene cane and poured the same on the deceased and set fire on her and she raised alarm. P.Ws.1 and 2 heard the distressing cry and saw Mathammal coming out of the house with burn injuries and the accused standing nearby. Immediately P.Ws.1 and 2 took the deceased to the Government Hospital, Palacode, at about 10.30 PM.
(b) P.W.9, the duty doctor at the Government Hospital, Palacode, gave the initial treatment to the deceased and she gave the statement and the same was recorded by the doctor. The copy of the accident register given by P.W.9 is marked as Ex.P-11. Thereafter, she was taken to the Dharmapuri Government Hospital for further treatment, where P.W.10 doctor gave treatment to Mathammal and Ex.P-12 is the copy of the accident register and an intimation was given at about 11.45 PM to P.W.14 Sub-Inspector of Police, Mahendramangalam Police Station.
(c) On receipt of the intimation from the hospital, P.W.14 proceeded to the Government Hospital, Dharmapuri on 01.09.2006 and recorded the statement of Mathammal at about 7.00 AM, which is marked as Ex.P-17. On the strength of the said statement, at about 9.30 AM, a case came to be registered in Crime No.211 of 2006 under Section 307 IPC against the appellant/accused and the first information report is marked as Ex.P-18. Then, she proceeded to the spot, made an inspection, prepared an observation mahazar Ex.P-1 and rough sketch Ex.P-19 and she also caused photographs to be taken through P.W.5 and the same are marked as Ex.P-5 series. Then, she recovered the material objects 1 to 6 under a cover of mahazar Ex.P-2 in the presence of witnesses.
(d) Pending investigation, on 31.08.2006 at night 12.55 hours, an intimation was sent to P.W.8, Judicial Magistrate II, Dharmapuri, who immediately went to the hospital and after getting certification from the doctor that the deceased was in a fit state of mind, recorded the dying declaration between 1.25 and 1.45 AM and the dying declaration proceedings are marked as Ex.P-9. Thereafter, on 02.08.2006 at about 10.45 AM, Mathammal died and the matter was intimated to P.W.15 by P.W.14.
(e) On receipt of the death intimation of Mathammal, P.W.15, Inspector of Police, Mahendramangalam Police Station, altered the charge in that case into one under section 302 I.P.C and prepared the amended first information report, which is marked as Ex.P-20. P.W.15 took up the investigation, proceeded to the spot, conducted inquest on the dead body of Mathammal in the presence of witnesses and panchayatdars and prepared Ex.P-21 inquest report. Then, he
sent the dead body to the hospital for the purpose of post-mortem along with his requisition.
(f) On receipt of the said requisition, P.W.7, doctor attached to the Dharmapuri Government Hospital, conducted autopsy on the dead body of Mathammal and gave post-mortem certificate, Ex.P-7, wherein he opined that the deceased would appear to have died about 18-20 hours prior to autopsy due to extensive burns causing septic shock.
(g) Further investigation was taken up by P.W.16, Circle Inspector of Marandahalli. Pending investigation, the accused was arrested on 06.09.2006 and he gave a confessional statement in the presence of two witnesses and the admissible portion was marked as Ex.P-3. He recovered M.O.7 lungi under a cover of mahazar Ex.P-4 and sent the material objects for chemical analysis pursuant to which, the analysis report Ex.P-14 was actually received by the Court and on completion of investigation, P.W.16 filed the final report under section 302 I.P.C.
(h) The case was committed to the Court of Session, Dharmapuri and necessary charge was framed. In order to substantiate the charge, the prosecution examined 16 witnesses and also relied on 21 exhibits and 7 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found against him in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and scrutinized the materials. On doing so, the trial Judge took the view that the prosecution has proved the case beyond reasonable doubt and found the appellant/accused guilty and awarded the punishment of life imprisonment, which is the subject matter of challenge before this Court.
3. Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution has examined P.Ws.1 and 2 as eye witnesses, of whom, admittedly, P.W.1 is the brother of the deceased and P.W.2 is the wife of P.W.1 and thus, they are the interested witnesses; that a careful scrutiny of the evidence of P.Ws.1 and 2 would clearly indicate that such occurrence could not have taken place at all and apart from that, they could not have seen the occurrence at all; that both witnesses spoke to the effect that they were actually seeing the accused standing near the place of occurrence, but from the first information report produced before the Court, it is clear that neither P.W.1 nor P.W.2 has seen the occurrence and they only admitted Mathammal in the hospital. Thus, it clearly shows that P.Ws.1 and 2 could not have seen the occurrence.
4. Added further the learned counsel that in the instant case, the dying declaration, the earliest statement Ex.P-17 was given to P.W.14, the Sub Inspector of Police of Mahendramangalam Police Station and when the said statement was compared with the dying declaration alleged to have been given by the deceased to P.W.8, the Judicial Magistrate II, Dharmapuri, it would clearly indicate that there are lot of discrepancies and that such a declaration could have been obtained only after tutoring the deceased. Added further that since the prosecution had no direct evidence to offer, the learned trial Judge should not have passed the order of conviction and hence, the judgment has got to be set aside.
5. Further, as a second line of arguments, the learned counsel wold submit that even assuming that the prosecution has proved its case that it was the accused who poured the kerosene on the deceased and set her ablaze, P.Ws.1 and 2 have categorically stated that they used to have frequent quarrels and on the date of occurrence, Rs.100/- was actually missing and both the husband and wife were accusing each other and in that quarrel, within a short span of time, the occurrence took place and from the above, it is quite clear that the accused had no intention to kill her but it was only a consequence to the quarrel. Apart from that in the instant case, the accused having not tolerated the accusation made by his wife that he had taken away Rs.100/-, could have committed the act and though it was done with the knowledge, he had no intention and the trial court failed to
appreciate the legal position and hence, he is entitled for an acquittal in the hands of the Court.
6. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
7. It is not in controversy that one Mathammal, following an incident that took place on 30.08.2006 at about 9.00 PM in her residence, was originally taken to the Government Hospital, Palacode, where she was given the initial treatment for burn injuries and thereafter, she was taken to Dharmapuri Government Hospital and despite the treatment, she died on 02.09.2006. The case, which was originally registered at 9.30 AM on 31.08.2006 under section 307 I.P.C. was converted into section 302 I.P.C. following the inquest made by the investigator and the dead body was subjected to post-mortem by P.W.7, who gave a categorical opinion that she died due to the burn injuries. Thus, the prosecution has clearly proved that as a direct consequence of the incident that had taken place in the residence of the deceased on 30.08.2006, she had died out of burn injuries and thus, this fact has also not been controverted by the learned counsel for the appellant and thus, it has got to be recorded.
8. In order to substantiate that it was the accused, who poured kerosene on his wife and set her ablaze, the prosecution fortunately had the evidence of P.Ws.1 and 2. It is true that P.W.1 is the brother of the deceased and P.W.2 is the wife of P.W.1, but on the ground of mere relationship, their evidence cannot be discarded but it has to be scrutinized carefully. Both the witnesses have spoken in one voice that the deceased and the accused were living for a decade and they had quarrels often with each other and on the date of occurrence, Rs.100/- was missing and they were accusing each other and their attempts to pacify the situation went in vain and following the same, the occurrence took place. Despite the cross examination, their evidence remains unshaken. On a careful scrutiny, the trial Judge has actually accepted the same, which is right and apart from that, in the instant case, the prosecution, to its benefit, added the dying declaration given by the deceased on two occasions. Firstly, she has given the statement to P.W.14 the Sub-Inspector of Police, which is marked as Ex.P-17 on the strength of which, originally the case was registered under section 307 I.P.C. and in that, the deceased thoroughly narrated the incident. Apart from the above, on intimation, P.W.8, Judicial Magistrate II, Dharmapuri, has gone to the Dharmapuri Government Hospital and after being satisfied that the deceased was in a fit state of mind, has recorded the dying declaration, which is also marked as Ex.P-9. At this juncture, it is pertinent to point out that no suspicious circumstance is brought to the notice of the Court casting any doubt on either of the documents and thus, these two pieces of statements which would by themselves constitute the dying declaration made by the deceased, point to the act of the accused that it was the guy, who poured the kerosene and set her ablaze, in clear terms. It is well settled proposition of law that in a given case like this, solely on the dying declaration, the conviction could be sustained if it is acceptable. In the instant case, there are two pieces of dying declarations and as stated above, the Court is unable to find any discrepancy between the two dying declarations. In the considered opinion of the Court, the evidence recorded by the trial court as discussed above would suffice to point out the guilt of the accused. Hence, in the considered opinion of the Court, the trial court was perfect in coming to the conclusion that the accused poured kerosene and set the deceased ablaze.
9. In so far as the second line of contention that the act of the deceased would not attract the penal provision of murder is concerned, admittedly, P.Ws.1 and 2, who are the close relatives of the deceased, have categorically spoken to the effect that there were frequent quarrels and on the date of occurrence, one was accusing the other about the missing of Rs.100/- and in that process, they had a quarrel and the occurrence took place; that they heard the distressing cry of the deceased and they saw the accused standing near the deceased. All these things would go to show that the accused had no intention to kill her, but, at the same time he has acted. In the circumstances, the act of the accused, which was actually done only in the exchange of heated arguments and hit of passion, would not attract the penal provision of murder and instead, it would come under section 304 Part-I of the Indian Penal Code. In the considered opinion of the Court, the punishment of 10 years rigorous imprisonment under the stated circumstances would suffice to meet the ends of justice.
Accordingly, the conviction and sentence of life imprisonment under section 302 IPC awarded by the trial court is modified into one of 10 years rigorous imprisonment under section 304 Part-I IPC and the period already undergone by the accused is ordered to be set off. The fine amount and default sentence awarded by the trial court will hold good. Criminal appeal is disposed of accordingly.
gl
To:
1.The Principal Sessions Judge
Dharmapuri District.
2.The Inspector of Police,
Mahendramangalam Police Station,
Dharmapuri District.
(Crime No.737 of 2003)
3.The Public Prosecutor
High Court,
Madras