IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.10.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL NO.350 OF 2008 Ameerjohn .. Appellant Vs. State rep. by Inspector of Police, B-10, L&O Police Coimbatore City .. Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional District Sessions Judge, Fast Track Court No.I, Coimbatore, made in S.C.No.39 of 2007 dated 03.09.2007. For Appellant : Mr.P. Venkatasubramanian For Respondent : Mr.Babu Muthu Meeran, APP - - - - JUDGMENT
(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.)
This appeal is directed against the judgment of conviction passed by the Additional District Sessions Judge, Fast Track Court No.I, Coimbaore made in S.C.No.39/2007 convicting and sentencing the accused u/s. 302 I.P.C to undergo life imprisonment along with a fine of Rs.1000/- and in default to undergo simple imprisonment for three months.
2. The facts which are necessary for the disposal of the appeal are as follows:
The victim was the wife of the accused. Accused used to drink alcohol and had quarrel with his wife Shakila Banu. On 20.06.2006, at about 01.00 a.m the accused, suspecting the fidelity of his wife had poured kerosene on the person of his wife and lit fire after accusing her fidelity. Due to the said liting of fire by the accused, the victim Shakila Banu had sustained serious burn injuries on her body and she was immediately admitted to the Government Hospital, Coimbatore. There, she succumbed to the burn injuries sustained by her, on 26.06.2006 by 10.40 a.m and thereby the accused became punishable u/s. 302 I.P.C.
3. The said case was registered by the Selvapuram Police in Cr.588/2006 and after completion of the investigation charge sheet has been filed and the learned Judicial Magistrate had committed the case to the Principal Sessions Judge who took the case on file in S.C.No.39/2007 and made over the said case to Fast Track Court No.I, Coimbatore.
4. The prosecution examined the P.Ws.1 to P.W.20 and produced Ex.P.1 to ExP.21 and M.Os.1 to M.O.9 in order to substantiate its case. The accused was examined u/s. 313 Cr.P.C the incriminating circumstances spoken against the accused. The accused had denied the evidence adduced by the prosecution as false and had submitted a statement in answer to the same. He also elected himself to be examined as D.W.1 in support of his case.
5. The Trial court had appraised the evidence adduced on the side of the prosecution and defence and ended the case in convicting the accused u/s. 302 I.P.C and imposed a sentence of life imprisonment and a fine of Rs.1000/- and in default to undergo 3 months simple imprisonment.
6. The case of the prosecution as let in evidence before the lower court would be thus:
(a) P.W.1, P.W.4 and P.W.5 are the sisters of the deceased Shakila Banu. P.W.2 and P.W.3 are the daughters of Shakila Banu and the accused. P.W.6 is the son in law of P.W.4. P.W.7 and P.W.9 are the tenants of the deceased and accused. P.W.8 is the elder sister’s daughter of the deceased. P.W.10 is the photographer. P.W.11 is the woman constable, who took the lady of deceased for autopsy. P.W.12 is the Judicial Magistrate, who recorded the witness statement of P.W.1 tp P.W.4 u/s.164 Cr.P.C. P.W.13 is the Doctor who examined the victim and issued Accident Register copy. P.W.14 is the Doctor who issued death memo. P.W.15 is the Post Mortem Doctor. P.W.16 is the Scientific Officer. P.W.17 is the Sub Inspector of Police who recorded F.I.R, P.W.18 is the Judicial Magistrate who recorded the dying declaration of the deceased. P.W.19 and P.W.20 are the Investigating Officers who investigated and filed the charge sheet respectively.
(b) According to the evidence of P.W.1,P.W.4 and P.W.5 who are the sisters of the deceased Shakila Banu, that at about 01.00 a.m on the morning of 20.06.2006, the accused came to his house in an inebriated mood and scolded his wife Shakila Banu suspecting her fidelity and questioned her as to who is the man she had gone, and by saying so he had poured the kerosene on her body and lit her and had fled away. The other witnesses P.Ws.4 and P.W.5 had spoken to that effect that on hearing the crying of Shakila Banu they went and saw at the house of Shakila Banu where they could see that Shakila Banu was engulfed with fire and immediately they extinguished the fire by pouring water and had taken Shakila Banu to the hospital. P.W.8 and 9 are the independent witnesses, who had also supported the evidence spoken by P.Ws.1 to 5. P.W.7 is the Observation Mahazar witness.
(c) After reaching the hospital the Doctor had examined the victim Shakila Banu and had prepared the Accident Register Copy Ex.P.9 that the victim Shakila Banu was assaulted by her husband by 01.00 a.m on 20.06.2009. He had also made a note that the victim was brought by P.W.6 to the hospital. On intimation by the hospital authorities to the Police, they visited the victim at the hospital by 03.00 a.m and recorded the statement of the victim Shakila Banu and on that basis the case was registered by P.W.17 by 04.00 a.m on the same day. The said complaint was produced as Ex.P.1 and the case was registered in Cr.No.588/2006 u/s. 307 I.P.C at 05.00 a.m on the same day. The investigation was undertaken by the Investigating Officer immediately by visiting the plea of occurrence preparing the Observation Mahazar Ex.P.4 and the material objects were also seized through Ex.P.3. Thereafter the Investigating Officer had taken steps to record the dying declaration of the victim woman Shakila Banu and P.W.18 was nominated and accordingly he had recorded the dying declaration on the same day by 10.30 a.m after following the procedural formalities. The dying declaration was produced as Ex.P.16 wherein the victim woman had categorically spoken to the effect that her husband accused had quarrelled with her and poured kerosene over her person and lit fire and he was in a inebriated condition and quarrelled with her at that time. Thereafter the accused was arrested by the Investigating Officer and was remanded to judicial custody. The victim women subsequently died due to the burn injuries sustained by her in the occurrence on 26.06.2006 by 10.45 a.m. The death intimation Ex.P.19 was given by the hospital authorities to the Investigating Officer and in turn the Investigating Officer had altered the section from 307 to 302 I.P.C and sent an alteration report in Ex.P.20. to the court. The Investigating Officer P.W.19 continued to investigate case till his transfer and P.W.20 continued to investigate thereafter by examining the Doctors and obtained Post Mortem Certificate and filed the charge sheet against the accused u/s. 302 I.P.C.
7. Heard Mr.P.Venkatasubramanian, learned counsel for the appellant and Mr.Babu Muthu Meeran, learned Additional Public Prosecutor appearing for the respondent.
8. Learned counsel for the appellant/accused would submit in his argument that the lower court was wrong in ending with conviction u/s. 302 I.P.C against the appellant/accused based upon the testimony of witnesses P.W.1 to P.W.4, who are the witnesses closely related to the deceased. He would further submit that the dying declaration which was mainly relied upon by the lower court cannot be accepted because the Doctor who was stated to have issued the certificate of consciousness was not examined on the side of the prosecution and therefore the consciousness of the deceased woman was questionable and the alleged testimony given by the victim woman cannot be deemed to have come from her mouth of the vicimt and the relatives who were actively in and around her had tutored the victim woman to say so and therefore the dying declaration cannot be relied upon.
9. He would further submit in his argument that the 164 Statement produced in Ex.P.2, P.5 and Ex.P8 given by the witnesses should not have been relied upon as those witnesses are related to the deceased woman. Moreover, he would submit in his argument that the defence taken by the accused in his statement as well as in his evidence was not considered by the lower court. He would also submit that the deceased women had committed suicide when her character was questioned by the accused and therefore,it cannot be said that the accused had committed the offence of murder. He would also submit in his argument that the lower court did not appreciate the evidence of the prosecution by considering the evidence of the prosecution spoken in the cross examination. As the incident was wrongly spoken by the prosecution witnesses, the conviction and sentence passed by the lower court cannot be sustained and therefore it has to be set aside and the appeal be allowed.
10. Learned Additional Public Prosecutor would submit in his argument that the lower court had entered conviction promptly after appraising the evidence adduced before it. He would further submit that the eye witnesses who are said to be the relative witnesses are also related to the accused and therefore the mere relationship with the deceased woman would not in anyway affect the veracity of the witnesses. He would further submit that the dying declaration of the deceased women was promptly recorded in accordance with law and based upon the said dying declaration and evidence of the Judicial Magistrate who recorded the dying declaration, the trial court had come to a correct conclusion and there was nothing to rely upon the plea of the defence that the deceased woman committed suicide by pouring kerosene on herself. He would draw the attention of the court to the the evidence of the children namely P.W.2 and P.W.3 who had spoken that their father was the accused and he who had committed the offence. Therefore, he would request the court to dismiss the appeal.
11. After giving anxious thoughts to the argument advanced on either side, we could understand that the occurrence had taken place during night hours on 19.06.2006 (i.e) at 01.00 a.m in the early morning on 20.06.2006, when the accused came to the house in an inebriated condition, where the victim women Shakila Banu was sleeping and the accused had quarrelled with his wife and poured kerosene on Shakila Banu and lit fire. According to the plea of the accused, the victim had poured kerosene on herself and lit fire in order to commit suicide. P.Ws.1,4 and P.W.5 are the sisters of the deceased women and P.W.2 and P.W.3 are the children of the accused and the deceased. As per the evidence of P.W.2 and P.W.3 who are the child witnesses, the incident had happened on 20.06.2006 at about 01.00 a.m when the accused had come and quarrelled with their mother and poured kerosene on her person and lit fire and thereby the victim woman sustained burn injuries. The said evidence of child witnesses who are the children of both the accused and deceased also cannot be simply brushed aside. Moreover, the defence case was that the victim woman Shakila Banu had committed suicide after quarrelling with the accused. Therefore, the occurrence in which the deceased sustained burn injuries has been admitted and the cause of the fire was also spoken by the victim woman Shakila Banu. The said evidence of P.W.2 and P.W.3 was also corroborated by the evidence of P.Ws.1,4,5 and P.W.6. The independent witnesses P.W.8 and P.W.9 are the tenants under the victim woman and they had also spoken to the effect that they had seen the accused running from the scene of occurrence, on the fateful night. In these circumstances, the evidence produced on the side of prosecution cannot be brushed away as interested testimony.
12. As regards the dying declaration of the deceased woman recorded by P.W.18, as in Ex.P.16. is concerned a careful perusal would show the certificate of the doctor about the consciousness of the deponent, namely the victim to give such declaration. The certification would be sufficient to hold that the victim was conscious enough to give such dying declaration. It is the settled position of law as laid down by Hon’ble Apex court that the doctor who gave certificate of consciousness need not be examined for proving the same. The Judicial Magistrate examined as P.W.18 was satisfied and therefore there is no impediment for the court to accept the dying declaration recorded by the learned Judicial Magistrate, P.W.18.
13. Therefore, the arguments advanced by the learned counsel for the appellant that the dying declaration was not reliable cannot be accepted. In the said dying declaration, it has been categorically spoken to the effect that the accused had quarrelled with his wife and poured kerosene over the person of the victim woman and lit fire and the accused was in an inebriated condition when he was quarrelling with the deponent. Therefore, the plea of the accused that the victim woman Shakila Banu had committed self immolation by liting fire herself cannot be true at any stretch of imagination.
14. The witnesses P.W.2 and P.W.3 being the children of the deceased had themselves spoken to the effect that the accused used to quarrel with their mother, deceased Shakila Banu and the accused had poured the kerosene on mother Shakila Banu on such quarrel would indicate that the accused had acted on sudden provocation without any intention to cause her death. The said argument cannot be correct, because if it happened on sudden provocation he would himself take the said Shakila Banu to the hospital and look after her with great care. But the ocular evidence was to the effect that the accused was flying away immediately from the scene of occurrence. In the aforesaid circumstances, the plea of the accused that the victim women set herself ablaze towards commission of suicide or the accused had suddenly provocated by the victim women and the accused had poured the kerosene due to sudden provocation and the offence cannot be classified as a murder, cannot be sustained. The Trial Court had promptly analysed the evidence and had come to the conclusion to rely upon the dying declaration recorded by P.W.18 supported by the ocular evidence including the children of the accused and had come to the conclusion of convicting the accused u/s. 302 I.P.C and sentenced him to undergo life imprisonment with fine of Rs.1000/-, which cannot be found as without merits.
13. Therefore, we are of the considered view that there is this court has no reason to interfere with the judgment of conviction and sentence passed by the Trial court and accordingly the appeal is liable to be dismissed.
14. In fine,, the criminal appeal fails and therefore it is dismissed by confirming the judgment of conviction and sentence passed by the Trial Court.
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To
1. The Additional District Sessions Judge
Fast Track Court No.I, Coimbatore
2. Inspector of Police,
B-10, L&O Police
Coimbatore City
3. The Public Prosecutor,
High Court,
Chennai