IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.06.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL NO.478 OF 2007 Rasheed .. Appellant Vs. State represented by Inspector of Police, Tiruvallur Taluk Police Station, Tiruvallur. (Crime No.379 of 2003) .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District Judge (Fast Track No.5) Tiruvallur Division made in S.C.No.139 of 2005 dated 14.3.2007. For Appellant : Mr.K.Veeraraghavan For Respondent: Mr.N.R.Elango, APP - - - - JUDGMENT
(The judgment of the court was delivered by
M.CHOCKALINGAM, J.)
Challenge is made to the judgment of the Additional District Judge, Fast Track Court No.V,Tiruvallur made in S.C.No.139 of 2005, whereby the sole accused/appellant stood charged tried and found guilty under Section 302 IPC and awarded life imprisonment and to pay a fine of Rs.5000/-, in default to undergo six months S.I.,
2.The short facts necessary for the disposal of this appeal can be stated as follows:
a)PW1 is a native of Pungathur and is known to the accused. PW2 is the son of the deceaed Vijayalakshmi. She was living with the accused, though not married him. On the date of occurrence that was on 7.8.2003 at about 11.30 p.m., there was a quarrel between the accused and deceased. Following the same, the accused poured kerosene and setting her ablaze. This was witnessed by PW1 Ramesh and one Rajendran. When she raised a distress cry, they tried to put out the flame, but she sustained burn injuries. Then, immediately she was taken to the Government Hospital, Tiruvallur where PW4, doctor who was on duty has treated her. Her statement was recorded .The statement given by her was recorded in the presence of PW4. The accident Register is Ex.P.1
b) An intimation was also given to the respondent police and PW13 Inspector of Police,Chengalpet District has proceeded to the Tiruvallur Government Hospital and recorded her statement in the presence of PW4.He came to the Police station and on the strength of the statement recorded from the said Vijayalakshmi, has registered a case in Crime No.379 of 2003 under Section 307 IPC against the accused/appellant. The printed FIR Ex.P.11 was despatched to the Court. Thereafter she was referred to Kilpauk Medical College Hospital for further treatment. A request was sent to the XIV Metropolitan Magistrate for the purpose of recording dying declaration and that was marked as Ex.P.12.but the same could not be recorded, since she was unconsicious. Thereafter, the Investigating Officer proceeded to the spot, prepared Observation Mahazar and drew rough sketch which is marked as Ex.P.13.
c)Pending investigation, P.W.13 arrested the accused and the accused has come forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible portion of confessional statement of the accused was marked as Ex.P.14. Pursuant to the confessional statement, the accused produced M.O.5 plastic lid with a smell of kerosene which was recovered under Ex.P.15, the cover of mahazar. Then, he sent the accused for judicial remand.
d) Pending investigation, she died on 10.8.2003 and the case was altered into one under Section 302 IPC and printed FIR was despatched to Court.The alteration report is Ex.P.16. The Investigating officer conducted inquest on the dead body and prepared Ex.P.17, inquest report in the presence of witnesses and panchayators. A covering letter of Judicial Magistrate I,Thiruvallur for sendind case properties to Forensic science Laboratory for chemical analysis which is marked as Ex.P.19 and chemical report is marked as Ex.P.20
e)P.W12, the Doctor attached to the Kilpauk Government Hospital, on receipt of the requisition, has conducted post-mortem on the body of the deceased and has issued Ex.P.10 post-mortem certificate, wherein he has opined that the deceased would appear to have died due to the complication of burns.
3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 13 witnesses and also relied on 20 exhibits and 5 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. The accused flatly denied the same as false. No defence witness was examined. The trial court, after hearing the arguments advanced and scrutinizing the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty and awarded punishment as referred to above. Hence this appeal has arisen at the instance of the accused/appellant herein.
4. Advancing arguements on behalf of the appellant, the learned counsel for the appellant has made the following submissions. In the instant case, according to the prosecution, the occurrence had taken place on 7.8.2003 at 11.30 p.m and only two witnesses were shown in the list of witnesses, viz., one is Rjendran and another is Ramesh, but Rajendran was not examined for the best reasons known to the prosecution and the other witness Ramesh has turned hostile. Thus, the prosecution had no direct evidence to offer. The prosecution has relied upon the circumstantial evidence. The prosecution had relied upon Ex.P.2 document which was also accepted by the trial Court erroneously. Even as per the prosecution case, it was the accused who took the deceased to the Government hospital, Tiruvallur and it was PW4, the doctor who was on duty has given treatment to her and Ex.P.1 is the Accident Register, the earliest document where it has been stated that the said Vijayalakshmi sustained burn injuries when the stove was burst and the said version was given by the said Vijayalakshmi when she was conscious. The said statement which was recorded by PW4, the doctor would clearly indicate that she sustained injuries due to stove burst and not by the act of the accused. But, the second document which has come into existence and marked as ExP2 was relied upon as dying declaration and the same was recorded.
5.According to PW13, Inspector of Polce,Chengalpet District, the statement was recorded at the hospital at about 1.45 hours and the said statement was also taken to the Police station and a case was also registered for the offence under Section 307 IPC. Learned counsel would further add that though the prosecution claimed that Ex.P.2 was a true and genuine document, the evidence of PW4 if carefully scrutinized would indicate that such a document could not be come into existence at all. According to PW4, immediately after recording Ex.P.1 document, the accused made an attempt to run away from that place as he was actually secured by the staff of the hospital and thereafter the police officer was present and in the presence of the Police officer, the said Vijayalakshmi gave a statement as found in Ex.P.2. Ex.P.2 does not speak anything as to the attempt made by the accused who ran away from the place of occurrence. In the instant case, though she lived for three days till 10.8.2003, a requisition was also forwarded as per the evidence of the police officer and medical officer that the dying declaration was not recorded at all.But,the prosecution had no explanation to offer. It was the case of the prosecution that she sustained 90% injuries and hence the deceased could not be able to give a confession statement. Learned counsel would further add that there was a delay in despatching the First Information Report to the Court. The police Station and the Judicial Magistrate Court are situated in the Town of Tiruvallur. Though the case came to be registered at 2.30 hours. on 8.8.2003, First Information Report reached the Court at about 6.15 p.m. on the same day. But the constable who took the First Informatation Report was not examined and that the said delay remains unexplained. The delay in despatching the FIR is also against the case of the prosecution. The earliest document viz., extra judicial confesion should have been relied upon by the trial Court, since it was one given by the deceaed when she was conscious, that too, it was given to the Doctor PW4 who has been examined by the prosecution to that effect. Though the evidence of PW4 was available, it cannot be said that the prosecution had proved its case. On the contrary, extra judicial confession coupled with the evidence of PW4 has disproved the prosecution case that it was the act of the accused. Therefore, the trial Court has taken an erroneous view and the accused is entitled for acquittal Hence, the accused has got to be acquitted.
6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
7.It is not in controversy that one Vijayalakshmi who was living with the accused was done to death following an incident that took place at night hours on 7.8.2003 at about 11.30 hours was taken to Tiruvallur Government Hospital and after she was given initial treatment,she was taken to Kilpauk Medical College Hospital. Despite the treatment, she died on 10.8.2003. After the inquest was made by the Investigating Officer, the body was subjected to post-mortem by P.W.9, the postmortem Doctor, who has given his categorical opinion that the deceased would appear to have died due to burn injuries. It is a relevant fact that she died due to burn injuries was never disputed by the appellant at any stage of the trial or before this Court and it has got to be recorded so.
8. In order to prove the charges levelled against the apellantr/accused that it was he who poured kerosene and set fire on the deceased, the prosecution examined only one witness PW1,Ramesh who turned hostile. Though one Rajendran witnessed the occurrence, he was not examined. In the instant case, the prosecution placed much reliance on Ex.P.2 document which according to the investigator was given to him when she was in Tiruvallur Government Hospital. It is well settled principle of law that, in a case like this, dying declaration of the victim would be suffice to sustain the conviction. The prosecution placed much reliance on Ex.P.2, the statement given to PW13, the police officer,as dying declaration, while the defence plea was that the earliest document Ex.P.1 which was given by the victim to PW4, doctor. Ex.P.1 would indicate that the deceased sustained burn injuries due to the bursting of the stove. Under such circumstances, it has become necessary to consider both these documents which have got to be believed and acted upon. Hence, after noticing the discrepancies this Court is of the view that the case stood in favour of the prosecution.
9. The occurrence took plce at the night hours on 7.8.2003. Immediately after the occurrence, it was the accused who took her to the hospital and the accused did not make any statement at all. He has also sustained simple injuries. He was treated by PW9 Doctor and the Accident Register notice was also produced before the Court. It is also the evidence of PW4 that the statement given by the deceased which is marked as Ex.P.1 would indicate that she sustained burn injuries due to the burning of the stove and according to PW4, Doctor, immediately after the accident as found in EX.P.1 was recorded, he tried to escape from the hospital and the staff of the hospital who was deputed has secured him and accordingly he was secured and brought to the hospital. At this juncture, it is pertinent to point out that the police officer has come to the spot subsequently and recorded Ex.P.2 statement in the presence of PW4. A perusal of Ex.P.2 would clearly indicate that PW4 the doctor, was actually present and also certified that the accused was present and the deceased was conscious to give such a statement. Further, Ex.P.2 document would clearly indicate that while she gave the earliest statement as found in Ex.P.1, the accused was present with her. Under such circumstances, she was compelled to give such a statement and accordingly she gave the statement, but she has further added that it was he who poured kerosene due to the quarrel at the time of occurrence. It is pertinent to point out that while the deceased herself came forward to give explanation to the version that how she gave Ex.P.1 statement, the Court is thoroughly satisfied that explanation tendered by the victim herself has got tobe accepted. According to PW4,the doctor,the victim was consicious whil recording the statement of her. The conduct of the accused should also be taken into consideration. After recrding the statement by the doctor, an intimation was given to the police officer and when the accused came to know about the same, he was tried to escape from the hospital. If really he had no involvement in the crime, there was no necessity for him to escape from the place. He was realy secured by the hospital staff and thereafter also he immediately escaped. Now at this juncture, the immediate conduct of the accused would also speak about his involvement in the crime. The contentions of the learned counsel appearing for the appellant that Ex.P.1 is the earliest document and at that time, the victim also conscious and she gave a statement to PW4 doctor, are not in dispute.
10.Even according to PW4, he recorded such a statement and how such a statement came to be recorded was the point for consideration and thereafter an explanation has been given by the victim herself. The Court is satisfied that in the presence of the appellant/accused, under the compelled circumstances, she has given such a statement Ex.P.2, within a short span of time, that too, in the presece of PW4, the doctor.Under such circumstances, the statement Ex.P.2 has got to be acted upon.
11.The contention of the learned counsel for the appellant is that there was a delay in sending First Information Report to the Court and FIR also reached after number of hours. At this juncture, it is pertinent to point out that a case was originally registered under Section 307 IPC for attempt to murder.Merely because there was a delay in despatching the First Information Report to the Court of Criminal Law itself is not a reason to reject the prosecution case. The court has thoroughly satisifed that it was the accused who poured kerosene and set ablaze her and due to which she died. Hence, the Court is unable to see anything to disturb the judgment of the trial Court factually or legally.
12.In the result, this Criminal Original Petition fails and the same is dismissed.It is reported that the appellant is on bail and hence the learned trial Judge shall take steps to secure his presence and commit him to prison to undergo the remaining period of sentence.
VJY
To
1.The Additional District Judge
(Fast Track No.5)
Tiruvallur Division
2. Inspector of Police,
Tiruvallur Taluk Police Station,
Tiruvallur.
3.The Additional Public Prosecutor,
High Court,
Madras 600 104