JUDGMENT
M. Thanikachalam, J.
1. Accused 1 and 2 in S.C. No. 381 of 1998 on the file of the Additional Sessions Judge, (Fast Track Court),Chennai are the appellants.
2. The respondent police in both the appeals has filed a final report against the appellants and three others seeking appropriate punishments under Sections 341, 449, read with 34 and 302 IPC alleging that on 24.8.1998 at about 7.45 p.m.,the accused had wrongfully restrained one Panchavarnam when she was returning to her house at Sudhandra Nagar,Thousand Lights, Chennai, that they had committed house trespass in order to commit an offence punishable with death in furtherance of common intention; that they did commit murder of Panchavarnam by pouring kerosene on her, set ablaze and therefore they should be dealt with according to law.
3. The Trial Court upon perusal of the materials, satisfied prima facie to proceed further by framing charges. The appellants as well as other accused, refused to plead guilty upon questioning, after framing charges, which compelled the prosecution to march in 12 witnesses, armed with 22 documents and three material objects to prove the charges framed.
4. The evaluation of above materials coupled with the applications of law and meticulous scanning of the materials also to the satisfaction of the learned Trial Judge,brought to surface the guilt of A1 to A4 under Sections 449 read with 34 and 302 IPC whereas it failed to prove the offence under Section 341 IPC as well as any offence against A5. Thus concluding the learned Trial Judge acquitted A5 from all the charges, acquitted A1 to A4 under Section 341 IPC alone, convicting and sentencing accused 1 to 4 for the offence under Section 449 read with 34 to undergo 10 years R.I and a fine of Rs. 10,000/- with usual default clause and for the offence under Section 302 IPC to undergo life imprisonment in addition to imposing a fine of Rs. 15,000/- with default sentence also.
5. Accused No. 3 by name Philips and A4, by name James who suffered conviction and sentence as herein before mentioned have not preferred any appeal and it is also not brought to our notice any pendency of appeal, if preferred. Against the acquittal of A5 also, no appeal has been preferred by the State. In these two appeals, we are concerned about the conviction and sentence slapped upon A1 and A2, who are the appellants in C.A.Nos. 928 of 2002 and 1019 of 2002 respectively. While evaluating the materials, if it comes to our notice, that the conviction and sentence slapped by the trial court is not sustainable, not only against the appealing accused, but also against the non-appealing accused, as per the ratio laid down by the Apex Court in Suresh Chaudhary v. State of Bihar 2003 SCC (Cri) 801, the non-appealing accused are also entitled to the relief of acquittal. On the other hand, if the conviction and sentence are confirmed, the other non-appealing accused also should suffer, since concedingly they have not appealed.
6. The facts leading to conviction of A1 to A4 and acquittal of A5 are briefly stated here under:
(a) Tmt.Palaniammal (P.W.1) is the mother of Panchavarnam (deceased). Thiru Pitchai Muthu (PW2) is the grand father of Panchavarnam and father of PW1. They are all building workers living at Sudhandra Nagar, Thousand Lights. P.W.3 is the neighbour of P.Ws. 1 and 2.
(b) Panchavarnam was returning to her house on 24.3.1998 at about 7.15 p.m after purchasing some medicines from a medical shop. The appellants and other accused on seeing Panchavarnam, requested her to come along with them for which, she not only refused, but also to save herself, ran into her house which was ravaged by fire to some extent, having some kind of temporary roofing. The accused chased her, compelled her to satisfy their lusts, for which she refused. P.W.7, Thiru N.Vijayakumar witnessed the chasing by the accused. Aggrieved by the conduct of Panchavarnam, the accused poured kerosene upon her, set ablaze by throwing a lighted match stick, then escaped.
(c) On seeing the fire in the house, P.W.2 rushed to the house along with others including P.W.3. Immediately they took the victim Panchavarnam, to the hospital in order to save her life, where she was given treatment including the Doctor, P.W.10 on reaching the hospital. On information P.W.1 rushed to the hospital, and when she enquired her daughter, about the incident, she narrated the plight and the involvement of four accused, which was also witnessed and heard by P.W.2. The fact that Panchavarnam was admitted in the hospital with burn injuries was informed to the police and on that basis, P.W.11, went to the hospital, examined Panchavarnam who was admitted there as in-patient, recorded her statement, as Ex.P.14. On that basis, he registered a case in Crime No. 214/98 under Sections 326 and 307 IPC for which printed FIR Ex.P.15 was sent to the Court concerned. Taking the case for investigation, P.W.11 inspected the scene of occurrence, prepared Observation Mahazar, Sketch and also made arrangements for recording dying declaration by the Judicial Magistrate. Thus taking all necessary action, P.W.11 handed over the case for further investigation to the Inspector of Police, P.W.12, who took the case for further investigation on 25.3.1998.
(d) Thiru R.Paranjothi (PW5) upon receipt of Ex.P.4, requisition, to record dying declaration, went to the Government hospital, Royapettah and on identification of the injured by the Doctor, examined her, recorded the statement Ex.P.5 being satisfied, as well as on the certificate issued by the Doctor, that the injured was conscious, oriented, capable of giving dying declaration. Unfortunately, the treatment given to Panchavarnam, failed to give life and she succumbed to the burn injuries on 30.3.1998.
(e) The investigating Officer PW.12, apprehended the accused on 27.3.1998 and examined them in the presence of P.Ws.8 and 9. The first accused confessed the concealment of certain material objects, giving a disclosure statement and on that basis, M.O.1, M.O.2 and M.O.3 have been recovered, under the cover of Mahazar. It was brought to the notice of the Investigating Officer, that Panchavarnam succumbed to the injuries and therefore he altered the case under Section 302 IPC for which the FIR Ex.P.21 had been sent to the Court concerned. Thereafter, P.W.11, conducted inquest over the body of Panchavarnam, prepared EX.P.22. Dr.R.Baskar, P.W.4 on receipt of Ex.P.1, requisition and on identification of the body, by the police concerned, conducted autopsy over the body of Panchavarnam, which revealed that she sustained severe burn injuries, causing death which are incorporated in Ex.P.2. Statements recorded by the Investigating Officer then and there, materials collected including the chemical report which was obtained on submitting the material objects for chemical examination, brought to surface, that the accused had not only committed house trespass, but also wrongfully restrained including the murder. In this way, a final report has been submitted to the Court concerned, leading to trial, ending in conviction as herein before mentioned, acquitting A5 alone. The conviction and sentence alone are under challenge, as mentioned supra, on the appeals preferred by A1 and A2.
7. Heard the learned Senior Counsel appearing for the first appellant, learned counsel appearing for the second appellant and the learned Additional Public Prosecutor appearing for the respondent.
8. Mr. V. Gopinath, learned Senior counsel appearing for the first appellant and Mr.P.M.Duraisamy, learned counsel appearing for the second appellant have submitted that the conviction and sentence slapped by the trial Court are not sustainable on the grounds;
(i) that since there are three kinds of dying declarations convicting the accused/ appellants without corroboration, is not sustainable, since the same alone cannot be the sole basis for conviction,
(ii) that there is no motive for the accused/appellants to burn Panchavarnam by pouring Kerosene , setting ablaze, since even as per the case of the prosecution, different versions are projected for the acts said to have been committed by the accused,
(iii) that admittedly there is no eye witness evidencing the crime said to have been committed by the accused/appellants and
(iv) that the trial Court without properly considering the materials available on record, in its proper perspective had committed an error, not only in convicting the accused, but also slapping the sentence so heavily imposing heavy fine which have got to be erased by allowing the appeals, thereby setting aside the conviction and sentence.
9. Learned Additional public prosecutor countering the above arguments, canvassing the reasons assigned by the trial Court to the entire extent, submitted that dying declaration alone could be the sole basis for convicting the accused, since in this case, the deceased had implicated all the accused by giving dying declaration not only to the police, but also to the Judicial Magistrate, while she was in a sound state of mind, capable of giving statement which cannot be ignored. In this view, it is the further submission of the learned Additional Public prosecutor that the dying declaration supported by other attending circumstances are proof sufficient to sustain the conviction, which are properly considered by the learned trial Judge, not committing any error and in this view, not warranting any interference by this Court also to upset the said findings.
10. It is not in dispute that Panchavarnam, the daughter of P.W.1 and grand-daughter of PW2 died due to burn injuries on 30.3.1998 in the hospital which she sustained on 24.3.1998 at about 7.15 p.m in her house whether it is pucca or ravaged previously by fire. The Doctor – P.W.4, who conducted post-mortem upon the body of Panchavarnam, had opined in Ex.P.2 that the deceased would appear to have died due to shock and extensive burn injuries. Except the suggestion that this kind of burn injures can be self inflicted, the reason assigned for the death of Panchavarnam is not under challenge. It is also suggested to some of the prosecuting witnesses that Panchavarnam committed suicide by pouring kerosene, setting ablaze i.e. self immolation. The suggestion coupled with the unchallenged medical evidence adduced through P.W.4 are proof sufficient, unquestionably also to come to a conclusion that Panchavarnam died due to burn injuries. She was admitted in the hospital on 24.3.1998 night and given treatment by the Doctors including P.W.10, till 30.3.1998,but unable to save her. Thus, concluding Panchavarnam died due to burn injuries, we have to see whether it is a self immolation or caused by the accused, if so who did this act.
11. The prosecution mainly relies upon the dying declaration as the source of evidence, for sustaining the conviction, in addition to other attending circumstances, such as the accused were seen by some of the witnesses, while chasing the deceased previous to the incident, arrest leading to disclosure statement, followed by recovery of certain material objects. Therefore, we have to see the dying declaration and whether the accused was in a fit state of mind, capable of giving statement, if so was it recorded, with out any external influence etc.
12. Thiru N.Vijayakumar, P.W.7 who claims to be a resident of Greams Road, which is nearer to the scene of crime, had stated that on 24.3.1998 at about 7.45 p.m. when he had been to third street to take tea, he had seen Panchavarnam, who was called by the accused. It is the further case of P.W.7 that Panchavarnam not heeding to the request of the accused, went into her house. This evidence, in our considered opinion, has not been challenged by effective cross examination, though some attempts have been made to say as if he would not have seen the incident, since he had no occasion to come to this area, as well as, he has not seen the accused before the incident. True, P.W.7 may not know the actual avocation of the accused and their names, residences, etc., In our ordinary way of life, we used to see many persons, often and we can identify them also without knowing their names and residents and avocation. Looking the case from this angle, we find nothing unnatural in the evidence given by P.W.7, who identified the accused, as the persons called Panchavarnam for some purpose and the Panchavarnam refused their call, went to her house. In this view, accepting the oral evidence of P.W.7, we conclude that the accused/appellants and other two convicted accused would have seen by P.W.7, prior to the incident, which is in a way corroborates the dying declaration which we would discuss infra.
13. Section 32 of the Indian Evidence Act says how the statement given by a dead person is relevant, when the statement is made by that person as to the cause of his/her death. In this case, P.W.5 has recorded the dying declaration of Panchavarnam on 25.3.1998 at about 1.35 a.m. i.e. early morning (night hours). He went to the hospital only on the basis of Ex.P.4. In this dying declaration, the deceased had implicated Sathya (A1) ,Manoj (A2) and A3 by referring his wife as Devi as well as referring this man as ‘Karimettu Payyan’, which is explained by the Investigating Officer as A3. Though she had mentioned three names, at the first instance, later it seems, she had stated four persons, who threatened her and four persons had committed trespass, poured Kerosene and set ablaze. In view of the fact that the fifth accused name does not find place and even there is no reference regarding the 5th person as if committed trespass, the trial court had acquitted the 5th accused. But considering the fact that four persons were mentioned in Ex.P.5, taking this dying declaration as correct one, the trial Court had slapped the conviction and sentence.
14. Admittedly, prior to the dying declaration recorded by P.W.5, on information, P.W.11 rushed to the hospital and recorded the statement of Panchavarnam on 24.3.1998 at about 9.15 p.m. which is exhibited as EX.P.14. In this statement, it seems the deceased has specifically named not only the appellants, but also James and Philips, the non-appealing accused persons who were arrayed as A4 and A3 respectively. P.W.12, the Investigating officer has stated that on 25.3.1998, he had examined the injured Panchavarnam at Royapettah, after getting permission from the Doctor. Fortunately or unfortunately, though that document is an admissible, since Panchavarnam died, it was not exhibited. From the cross-examination of P.W.12, it is seen that she has given some other kind of version regarding the involvement of the accused such as whether the accused had called her for some illegal purpose or was there any love affair between the deceased Panchavarnam and the first accused. Thus, in this case, as rightly submitted by the learned counsel for the appellants, there are three dying declarations or at least two dying declarations, since Ex.P5 and Ex.P14 alone were exhibited during the course of trial. If the two dying declarations are unanimous, had no variation, or no inconsistency at least regarding the incident or implicating the accused, no hesitation could be entertained, in relying upon the dying declaration. But, admittedly there is some discrepancy in the dying declarations in the sense, regarding the implication or involvement of the accused, though in other aspect more or less both are same, especially regarding the acts said to have been committed by the accused viz. pouring kerosene and setting ablaze. In this context, we have to see which dying declaration should be given preference in, order to play dominant role, to fix the accused. Before that, we have to decide when the dying declarations were recorded either by the police or Judicial Magistrate concerned, whether the deceased was in a sound state of mind,capable of giving statement, being conscious.
15. Panchavarnam sustained burn injuries on 24.3.1998 at 7.45 p.m. She died only on 30.3.1998 after six days. Though she had sustained 90% burn injuries, the Doctor besides the Judicial Magistrate, while recording dying declaration has stated that Panchavarnam was conscious, mentally and clinically fit to give declaration, throughout the recording. The Magistrate also himself had satisfied about the mental status of Panchavarnam, before recording dying declaration by throwing number of questions, for which she had answered consciously. When the Doctor and the Judicial Magistrate have spoken about the mental capacity of Panchavarnam, to give dying declaration at about 1.35 a.m. on 25.3.1998, the same was not seriously challenged. Therefore, it should be safely concluded, that while the deceased Panchavarnam had given Ex.P.5 statement, she was conscious, capable of giving the statement, fit enough to understand the question etc. This being the position, it could be further safely concluded, that Panchavarnam might have been conscious and oriented while P.W.11 had recorded Ex.P.14 statement. It is not even suggested to P.W.11, who had recorded EX.P.14 statement, that the deceased was in-capable of giving any statement or he himself had written the dying declaration, as if given by the deceased Panchavarnam. This being the position, as seen from the examination of P.W.11, here is nothing wrong in concluding that Ex.P.14 is the statement given by the deceased to P.W.11, though it is given to a police officer, coming within the meaning of Section 32 of the Indian Evidence Act. Thus fixing, now we are having two dying declarations, one recorded by the Police on 24.3.1998 at about 9.15 p.m., and another dying declaration viz. Ex.P.5 recorded thereafter by the Judicial Magistrate on 25.3.1998 at about 1.35 a.m.
16. In P.V. RADHAKRISHNA v. STATE OF KARNATAKA ( 2003 Supreme Court Cases (Crl.) 1679 the Apex Court tracing out the history of dying declaration from 1789 to 2003 has culled out the principles governing dying declaration and laid down the law, how, and under what circumstances, a dying declaration, could be acted upon, and ignored, which reads as follows:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration.
(iii) The Court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration.
(iv) Where a dying declaration is suspicious, it should not be acted upon without corroborative evidence.
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected.
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction.
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected.
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth.
(ix) Normally, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye witnesses said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail.
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon.
(xi) Where there are more than one statements in the nature of dying declaration, the one first in point of time must be preferred. Of Course, if the plurality of the dying declaration could be held to be trustworthy and reliable, it has to be accepted.
17. In a case of two dying declarations, one recorded by the Magistrate and another recorded by the Police, Apex Court has ruled in NALLAM VEERA SATYANANDAM and Ors. v. THE PUBLIC PROSECUTOR, HIGH COURT OF A.P. 2004(2) Supreme 273, as follows:
“in case of multiple dying declaration each will have to be considered independently on its own merit as to its evidentiary value. It is also made clear that one cannot be rejected because of contents of the other and it is duty of Court to consider each in its correct perspective and satisfy itself which one of them reflected true state of affairs”.
18. In CHINNAMMA v. STATE OF KERALA 2004(2) SUPREME 251 the same Hon’ble Judges of the Apex Court have observed that,
“When in two dying declarations one recorded by Police and second by Magistrate, there were glaring contradictions and other circumstances created doubt in truthfulness of version, it could not be acted upon to base conviction”.
This ruling was brought to our notice by the learned counsel for the appellants, whereas the previous ruling was brought to our notice by the learned Additional Public Prosecutor.
19. In LEELA SRINIVASA RAO v. STATE OF A.P. ( 2004 Supreme Court Cases (Cri) 1479), the Apex Court has taken the view, that when there are two dying declarations, having inconsistent statement and when there is no other evidence to prove the prosecution case, it is not safe to act solely on the dying declaration to convict the accused person.
20.A Division Bench of this Court in VENKATESH ALIAS VENKATESAN v. STATE REPRESENTED BY THE INSPECTOR OF POLICE, THUDIALUR POLICE STATION (2004)M.L.J.(Crl.) 721 placing reliance on the ratio laid down in Nallam Veera Sathyanandam’s case has held,
“where there are more than two dying declarations made on the part of the deceased at variance or with some difference prior to her death and in realisation of the duty of Court, if it is considered as to which of the two versions is in its correct and proper perspective reflecting the true state of affairs, no hesitation need be entertained to say that it is the earliest version adduced on the part of the deceased that should be given credence to”.
It is also further observed:
“that the earlier version has been adduced by the deceased while she was in a better condition and by the time the later version came into existence, various treatments have been imparted and there is the likelihood of her losing her mental balance which she might have maintained at the time she was making the earlier declaration. Therefore, there is much reason in taking into confidence the earlier version and disbelieving and discarding the later version”.
21. Learned counsel for the appellants, brought to our notice a decision in THIRUKANNI POMPIAH and Anr. v. STATE OF MYSORE , wherein it is held, that the dying declarations suffered from an infirmity and were not reliable by themselves, could not safely form the basis of conviction of the accused without further corroboration. As no such corroboration was forthcoming in the case, the accused were given the benefit of doubt and were acquitted. The relevant portion reads in Paragraph 9 of the said decision as follows:
“Under Clause (1) of Section 32 of the Indian Evidence Act, 1872, a statement made by a person who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death is a relevant fact in cases in which the cause of that person’s death comes into question, and such a statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. The dying declaration of Eranna is, therefore, relevant and material evidence in the case. A truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be subjected to a close scrutiny, considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased’s version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration.”
22. Having the above principles in mind, we have to see in this case whether Ex.P.14 should be given preference or Ex.P.5 or both should be discarded, in view of the alleged inconsistency, in order to give the benefit of doubt to the accused.
23. Ex.P.14 though recorded by the Police officer, comes within the meaning of dying declaration as contemplated under the Indian Evidence Act, not disputed. We have already come to the conclusion that this statement was given by the deceased, while she was in a sound state of mind and there was no external influence also. It is not even suggested to P.W.11, that the recitals are introduced in Ex.P.14, not on the basis of the statement given by the deceased Panchavarnam, whereas at the instance of her relatives. Therefore, in our considered opinion, Ex.P.14 should be given preference not only on the ground that it was recorded at the earliest point of time, but also on the ground that no doubt has been created, over Ex.P.14 by questioning its genuineness or otherwise when the scribe of Ex.P.14 was in the box, on which basis, a case has been registered. The subsequent declaration, as held by the Division Bench of this Court had come into existence after the treatment has been started probably, thereby disturbing the mind of the deceased. Therefore, the omission of one of the name of the accused in Ex.P.5, cannot have the effect of invalidating the truthful statement recorded by P.W.11, from Panchavarnam, the deceased. If we read this dying declaration, coupled with the oral evidence of P.W.7. The irresistible conclusion, that should surface is that accused 1 to 4 alone had chased the deceased and poured kerosene and set ablaze.
24. True, there is some discrepancy regarding Kerosene cane such as whether it was available in the scene of occurrence or brought by the accused to the scene of occurrence. There is some discrepancy regarding the availability of the Cane, after the incident, since one of the witnesses had spoken as if he had seen the cane, in the scene of occurrence, whereas the Investigating Officer takes the credit as if he had recovered the same, after the arrest of the accused, obtaining confession. These are all, in our considered opinion, minor discrepancies, not affecting the core of the case, probably emanated due to the failure of memory or by the over acting of the investigating officer. Whatever may be the inconsistency, this will not dilute the acts committed by A1 to A4, which were brought to surface, by the dying declaration Ex.P.14 that all the accused have committed trespass into the house of the deceased, had acted in furtherance of the common intention, not only restraining the deceased from moving out, but also poured kerosene, by throwing the lighted match stick upon her. Thus, by ourselves going through Ex.P.14, satisfying our conscious, we come to the conclusion that Ex.P.14, shall take preference, than Ex.P.5 though it is recorded by the Judicial Magistrate, considering other attending circumstances.
25. The dying declaration recorded by the police is corroborated by the oral evidence of P.Ws1 and 2, though they are the close relatives of the deceased. It is the common knowledge that when a person is injured, only the close relatives would be available near the injured, enquiring the cause, person responsible etc., and in this way, P.Ws.1 and 2 had obtained information from Panchavarnam, which cannot be found fault with. PW1, though not named the accused, had stated that she was informed by Panchavarnam, that four accused had committed this atrocity which was informed by the deceased Panchavarnam to P.W.11 in Ex.P.14. P.W.2 has categorically stated that the deceased had given the names of A1,A3,A4 and A5 though she failed to mention the name of A2, which is rectified by the dying declaration. The oral evidence of P.Ws.1 and 2 should be read with the oral evidence of P.W.7. The harmonious reading of the evidence given by P.Ws.1, 2 & 7 undoubtedly persuaded us, to reach an unhesitating conclusion that the appealing accused as well as non-appealing accused alone should be the cause for pouring kerosene and set ablaze, after committing trespass into the house of deceased Panchavarnam. Though there is no duty cast upon the accused to prove their innocence, there is nothing wrong in taking into consideration the case projected by them, viz., the suggestion to Pws.1 and 2, that Panchavarnam committed suicide. For committing suicide, no reason is alleged. In the absence of any motive, the suggestion that Panchavarnam committed suicide appears to be unbelievable. The case suggested to P.W.2, that he had instructed Panchavarnam, to name the accused also appears to be unacceptable to us.
26. Learned Trial Judge considering all the relevant facts, other attendanting circumstances and mainly relying upon the dying declaration, based upon the legal principles as indicated supra, in our considered opinion, had come to an unerring conclusion, in concluding that the accused are guilty of the offences under Sections 341, 449, read with 34 and 302 IPC, which does not warrant, any upset by our interference. For the foregoing reasons, we conclude that the appeals are devoid of merits and deserve to be dismissed.
27. In the result, both the appeals are dismissed confirming the conviction and sentence slapped by the trial court in S.C. No. 381 of 1998.