{"id":151401,"date":"2002-09-04T00:00:00","date_gmt":"2002-09-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-jayabalan-on-4-september-2002"},"modified":"2015-08-11T01:38:01","modified_gmt":"2015-08-10T20:08:01","slug":"state-vs-jayabalan-on-4-september-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-jayabalan-on-4-september-2002","title":{"rendered":"State vs Jayabalan on 4 September, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
State vs Jayabalan on 4 September, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 04\/09\/2002\n\nCoram\n\nThe Honourable Mr. Justice P. SHANMUGAM\nand\nThe Honourable Mr. Justice M. CHOCKALINGAM\n\nCriminal Appeal No.65 of 1995\n\n\nState, represented by\nThe Public Prosecutor,\nPondicerry.                             ..  Appellant\n\n-Vs-\n\nJayabalan                              ..  Respondent\n\nPrayer:  Appeal against the judgment of the Third Additional  Sessions  Judge,\nPondicherry dated 7.10.1994 in Sessions Case No.17 of 1993.\n\n!For Appellants :  Mr.  A.P.  Surya Prakash,\n                Addl.  Public Prosecutor,\n                Pondicherry.\n\n^For Respondent :  Mr.  A.  Padmanabhan\n\n\n:J U D G M E N T\n<\/pre>\n
P.  SHANMUGAM, J.\n<\/p>\n
                The  State  represented by the Public Prosecutor has filed the
\nabove appeal against the order of acquittal passed  by  the  Third  Additional
\nSessions Judge, Pondicherry.\n<\/p>\n
                2.  The accused is the husband.  He was charged for an offence
\npunishable  under  Section  302 of the Indian Penal Code for having beaten his
\nwife Vasanthi with a blunt object, poured kerosene over her and  set  fire  to
\nher,  thereby committing murder by intentionally causing the death of his wife
\non 29.5.1992 at about 9.20  am  in  his  house  at  No.95  ,  Subbayya  Nagar,
\nPondicherry.  The Sessions Court found that the prosecution could not make out
\nthe  case  against  the  accused  beyond  reasonable  doubt  and acquitted the
\naccused.  The appeal is against this judgment.\n<\/p>\n
                3.  The case of  the  prosecution  is  stated  hereunder;  the
\naccused  before  the  Sessions  Court  shall be hereinafter referred to as the
\nrespondent :\n<\/p>\n
                The marriage between the respondent  Jayabalan  and  Vasanthi,
\nthe deceased  took  place on 5.9.1988.  They have two children, one aged 2-1\/2
\nyears and the other aged six months as on the date of  the  occurrence  namely
\n29.5.1992.   Vasanthi,  comes from a big family of six children, consisting of
\nfour sisters and two brothers.  She was  employed  as  a  Nurse  in  the  T.B.
\nHospital,  Pondicherry  and  the  respondent  was  employed  as  a  Teacher in
\nAlankuppam Government School, Pondicherry.  It was an  arranged  marriage  and
\nthe  couple  were  living separately, just opposite to the house of Vasanthi’s
\nparents, the two houses being divided by a 20′ wide road.  The respondent used
\nto collect all the salary of Vasanthi and used to be very strict  in  allowing
\nher  to  spend her money and he was in the habit of suspecting the fidelity of
\nVasanthi whenever she used to talk with a male person.  Because of this, there
\nused to be frequent quarrels between the couple.  Some time in July 1992,  two
\nmonths  prior  to the death of Vasanthi, she is said to have complained to her
\nparents that she could not live with the respondent any longer  and  that  she
\nhad  an apprehension that if she continued to live with him, he will kill her.
\nHowever, her parents persuaded her to adjust with  him  since  she  had  three
\nyounger  sisters  yet  to  be  married  and  thereafter,  she went back to her
\nhusband’s house.  Just 1 5 days prior  to  her  death,  there  was  a  quarrel
\nbetween  the  couple  in  connection  with  the  ear-boring  ceremony of their
\nchildren.  While the respondent wanted to spend  lavishly  and  celebrate  the
\nceremony  along  with  the  ear-boring  ceremony of his brother’ children, for
\nwhich the deceased did not agree, but wanted a function as simple as  possible
\nwithout much expenditure.  The ear-boring ceremony was fixed on 1.6.1 99 2.\n<\/p>\n
                4.   While  so, on Friday, the 29th of May 1992, Vasanthi came
\nto her parents’ house with her daughter and six months old son  and  took  her
\nbreakfast.  Thereafter,  she  went  back to her husband’s house.  The girl was
\ntaken to her school by Vasanthi’s sister.  After she left her parents’  house,
\nVasanthi’s father  took  his  wife,  i.e.  Vasanthi’s mother to the Government
\nHospital, Pondicherry for some treatment.  At about 9.10  am,  when  the  baby
\nstarted  crying,  Vasanthi’s younger sister Chitra took the child, went to her
\nsister’s house which was opposite to their house, left the child  there  after
\ninforming about the same to her sister Vasanthi.\n<\/p>\n
                5.   At  about 9.25 am on 29.5.1992, the brother and sister of
\nVasanthi heard her screams.  Immediately, they went to their sister’  s  house
\nand  found the respondent jumping and coming out from the bathroom without any
\nclothes on his body.  It was noticed that he had suffered burn injuries.   The
\nrespondent  is  said to have requested P.W.1, the brother of Vasanthi, who had
\ncome  there  upon  hearing  the  screams  of  her  sister,  to  call  for   an
\nauto-rickshaw.   P.W.1  took  up  the  baby  and handed him over to his sister
\nChitra and requested Narayanan, their neighbour  to  fetch  an  auto-rickshaw.
\nWhen the auto came, the accused got into it along with P.W.6, who was asked to
\naccompany him.  He went to the Jawaharlal Nehru Institute of Medical Education
\nand Research, Pondicherry, and as per Ex.P.13, he was attended upon at 9.45 am
\nfor  the  burn injuries alleged to have been sustained by him while lighting a
\nstove at 9.30 am at his house.  As per Ex.P.14, the  Medico-Legal  Examination
\nReport, the respondent was having pain and burn injuries all over his body and
\nhe was conscious and oriented.  He had no LOC\/ Vomitting\/Convulsions.\n<\/p>\n
                6.   Coming  back  to  the  scene  of  occurrence,  as per the
\nprosecution case, P.W.1, the brother of Vasanthi,  P.Ws.3  and  4,  Vasanthi’s
\nsisters as well as P.W.5, their neighbour, heard Vasanthi’s cries that she was
\nburning and  found  that she was burning inside the bathroom.  As the bathroom
\ndoor was bolted from inside, they broke open the door with a crow-bar.    They
\ncovered her  with  gunny  bags  and put off the fire.  She was conscious while
\nbeing lifted from the bathroom.  When P.W.1 asked her what had  happened,  she
\nhad  told  that  “Mama”  –  husband  (  accused\/respondent) beat and burnt her
\npouring kerosene oil.  They brought her to the hall and she breathed her  last
\nthere.   A fresh injury was noticed on the forehead of Vasanthi just above her
\nleft eye on the face and her body was completely burnt.\n<\/p>\n
                7.  At about 9.30 am, one Premila, a  neighbour,  is  said  to
\nhave  informed  the  Control  Room,  Pondicherry to the effect that a lady was
\nburnt and was lying  in  the  house  at  No.95,  Subbayya  Nagar.    The  said
\ninformation  was  recorded  by  P.W.10, the Assistant Sub Inspector who was on
\nduty at that time.  The information was passed on by wireless to  the  D.Nagar
\nPolice Station.    The  Sub  Inspector  of  Police  from the Station House, in
\nreceipt of the information, left the police station with a police party to the
\nplace of occurrence and obtained a complaint, Ex.P.1 from P.W.1.   Thereafter,
\nhe  returned to the station and the said complaint was registered as Complaint
\nNo.123 of 1992 under Section 302 I.P.C.   Ex.P.11  is  the  First  Information
\nReport,  which  was  registered  at  11.10 am on 29.5.1992 against the accused
\nunder Section 302 I.P.C.  that on 29.5.1992 at 0920 hours at  No.95,  Subbayya
\nNagar,  Pondicherry,  the accused committed the murder of his wife Vasanthi by
\nconfining her inside the bathroom and set fire on her by pouring  kerosene  on
\nher due  to  family  dispute.    P.W.14,  the  Inspector of Police started the
\ninvestigation at 11.00 am and prepared the observation magazar.\n<\/p>\n
                8.  Charges were framed against the  accused  dated  17.9.1993
\nunder Section 302 I.P.C.  and he was put on trial.\n<\/p>\n
                9.  Fourteen  witnesses  were  examined.   P.Ws.1 to 6 are the
\nprosecution witnesses who speak about the occurrence.  P.Ws.7  to  9  are  the
\nwitnesses for identifying the statements given by P.Ws.1 and 2.  P.W.10 is the
\nAssistant Sub Inspector working in the Control Room on 29.5 .19 92.  P.W.11 is
\nthe Police Photographer.  P.W.12 is the Junior Specialist in the Department of
\nForensic Science and Medicine.  P.W.1 3 is the Sub Inspector of Police who got
\nthe complaint and registered the F.I.R.  P.W.14 is the Inspector of Police who
\nconducted the investigation.\n<\/p>\n
                10.   Of  these,  P.W.1, the brother of Vasanthi and P.Ws.3, 4
\nand 5 are eye-witnesses.  P.W.2 is the father of the deceased.  P.W.6 is their
\nneighbour who accompanied the respondent to the hospital.\n<\/p>\n
                11.  The learned Sessions Judge, after  considering  the  oral
\nand  documentary  evidence,  found that there were different versions given by
\nthe prosecution witnesses and that the evidence of P.W.5 did not  support  the
\ncase  of the prosecution regarding the utterances of the deceased and that the
\ndeceased was not in a fit condition to speak and that the medical report  does
\nnot support the case of the prosecution and that the conduct of the respondent
\ncannot  be taken advantage of since he was in a disturbed state of mind as his
\nwife was burning and that there was no sufficient motive to support  the  case
\nof the  prosecution.   The learned Judge chose to give the benefit of doubt to
\nthe accused and hence acquitted him of the charges framed against him.\n<\/p>\n
                12.  The learned  Additional  Public  Prosecutor,  Pondicherry
\nassailed the  order  of  the  Sessions Judge on several grounds.  According to
\nhim, there is clear evidence, both direct and circumstantial  with  sufficient
\nmotive to prove that the respondent has committed the heinous crime of burning
\nhis own  wife.  He further submits that the learned Judge has made much out of
\nthe minor contradictions without appreciating the core  of  the  case  of  the
\nprosecution.   According  to  him,  the  learned  Judge failed to see that the
\ntheory of suicide is totally ruled out in this case, and  in  the  absence  of
\nacceptable  explanation  for  the injuries found on the body of the respondent
\nand the defence statement  of  the  respondent  himself,  the  action  of  the
\nrespondent in committing the murder is established beyond any shadow of doubt.\n<\/p>\n
                13.   Learned  Additional  Public Prosecutor further submitted
\nthat the conduct of the accused in climbing over the wall and jumping  out  of
\nthe  bathroom,  wherein  admittedly the deceased was burning and then, leaving
\nthe place without informing any one about the position of the deceased at that
\ntime is totally inconsistent with his plea of innocence and it  is  consistent
\nwith the  proof  of  his  guilt.  The learned Sessions Judge, according to the
\nAdditional Public Prosecutor, has failed to see that the only  inference  that
\ncould  be  drawn  in  this case is that the accused is responsible for causing
\ninjury on the head of the deceased, pouring kerosene and burning her and  also
\nmaking good  his  escape from the scene of occurrence.  He also submitted that
\nthe decisions referred to in the judgment of  the  Sessions  Judge  cannot  be
\napplied in  favour  of  the  respondent.   He contended that the learned Judge
\nmisapplied and wrongly interpreted the medical  evidence  in  support  of  the
\nrespondent.    He,   therefore,   prayed   that   justice   be  done  and  the
\naccused\/respondent be found guilty of murder and given  the  maximum  sentence
\nfor the serious offence against his own helpless wife.\n<\/p>\n
                14.  The learned  counsel  Mr.    A.  Padmanabhan appearing on
\nbehalf of the respondent strenuously pleaded that if two views  are  possible,
\nthe  court  should  lean  towards the accused and give the benefit of doubt to
\nhim.  According to him, the respondent had clearly set out his defence in  his
\nwritten  statement  and  pleaded  that  in  the  facts  and circumstances, the
\ndeceased had committed suicide and that the court has rightly found it  to  be
\nso.\n<\/p>\n
                15.   According to the learned counsel, there is a discrepancy
\nwith regard to the time of registration of  the  F.I.R.    and  the  delay  in
\nforwarding the  same  to  the  Magistrate  Court.  He had also highlighted the
\ndifferent versions of P.W.4 in reference to the reporting of the incident  and
\nthe  nature  of burn injuries suffered by the respondent to the extent of 60%.
\nHe submits that the medical evidence falsifies the oral evidence.    According
\nto him, all the eye-witnesses are very closely related to the deceased, namely
\nbrother  and  sisters and hence, their evidence is unbelievable and is clouded
\nby a feeling of revenge against the respondent.  He further submits  that  the
\ndying  declaration  of the deceased is not corroborated by any other evidence.
\nHe strongly relies on the decisions of the Supreme Court  in  support  of  his
\ncontention that if two views are possible, the court must adopt and accept the
\nopinion in support of the accused.  He also emphasises that the finding of the
\ntrial court, which had the advantage of seeing the demeanour of the witnesses,
\nshould not be lightly disturbed by the appellate court.\n<\/p>\n
                16.   We  have  heard the learned Additional Public Prosecutor
\nfor the State and the learned counsel for the respondent  and  considered  the
\nmatter carefully.\n<\/p>\n
                17.  After going through the records and the evidence, we find
\nthat  we  have the advantage of the evidence of eye-witnesses, the medicolegal
\nexamination report as well as the defence statement of the respondent in order
\nto come to a clear conclusion.  Of course, this will be subject  to  the  test
\nand scrutiny of the oral and documentary evidence in accordance with law.\n<\/p>\n
                18.  MOTIVE :\n<\/p>\n
                The deceased was married to the respondent on 5.9.1988 and has
\ngot two  children  out  of their wedlock.  Their marital life was not happy as
\nper the evidence of both the prosecution witnesses  as  well  as  the  defence
\nstatement of  the  respondent.  to the prosecution, the appellant has a motive
\nto murder her, whereas the defence  attribute  a  motive  for  her  to  commit
\nsuicide.   According  to  the  written statement filed by the respondent under
\nSection 313 readwith Section 233(2 ) of the Code of  Criminal  Procedure,  the
\ndeceased did  not  like his parents and his support to them.  She did not like
\nthe ear-boring ceremony of their  children  being  conducted  along  with  his
\nbrother’s children.    According  to him, the deceased was an egocentric woman
\nwith a stubborn character.  Whereas, according to the  prosecution  witnesses,
\nthe  respondent  did  not allow the deceased to spend her money and she had to
\ngive all her salary to the respondent and the respondent was  also  suspecting
\nher fidelity  whenever  she talked to male members.  The prosecution witnesses
\nalso speak of her coming back to her parents’ house two months  prior  to  the
\noccurrence,  complaining  that she could not live with the respondent any more
\nand that if she continued to do so, the respondent would kill her.    However,
\nit  was  only  after  the persuasion of the parents of the deceased that since
\nthree younger sisters were in their house yet  to  be  married  and  on  their
\nadvice to adjust with the respondent, she went back to the respondent’s house.
\nEven  15  days prior to the occurrence, there was a quarrel between the couple
\nwith reference to the ear-boring ceremony of their children.  According to the
\nprosecution case, the respondent wanted to spend lavishly  for  that  ceremony
\nand  wanted  it  to  be conducted along with his brother’s children, which the
\ndeceased objected to.  Insofar as the last part of this difference of  opinion
\nis  concerned,  there  is no controversy, since the respondent, in his written
\nstatement, has also admitted the same.\n<\/p>\n
                19.  The fact that the deceased was not having a happy married
\nlife has been spoken to by P.W.1, her brother and P.W.2, her father, who  have
\nstated  that  there  were  frequent  quarrels  between  the  deceased  and the
\nrespondent in reference to his spending the money on his  family  members  and
\nthat  the  respondent  used  to assault the deceased whenever such differences
\narose between them.  P.W.3 also speaks of the deceased coming to  their  house
\ntwo  months  earlier with a suitcase, stating that she would not live with the
\nrespondent any more as he used to beat her frequently and that  her  life  was
\nnot safe  in  his  hands.  She, however, heeded to her parents’ advice to bear
\nwith the  respondent  since  her  younger  sisters  had  to  get  married  and
\nthereafter, she went back.  P.W.4, another sister, also speaks of the frequent
\nquarrels and the difference of opinion between the couple.  She also says that
\ntwo  months  prior  to her death, the deceased came away to their house with a
\ndetermination not to join her husband.  It was only their parents who  advised
\nher to  go  back  to  his house as her other sisters had to get married.  Once
\nagain, a fortnight before her death, there was a misunderstanding between them
\nin connection with the ear-boring ceremony of their kids.  Ex.P.1,  complaint,
\nwhich  was  given  by  P.W.1, also mentions about the fact that the respondent
\nused to be very strict in the handling of the salary money of the deceased and
\nthat two months prior to  the  occurrence,  the  deceased  came  away  to  her
\nparents’  house with a bag and luggage and that the parents had counselled her
\nand sent her back on the same day to the respondent’s house.    The  complaint
\nalso  refers  to  the  quarrel  between  the  deceased  and  the respondent in
\nreference to the ear-boring ceremony on 28.5.1992.\n<\/p>\n
                20.  Though P.Ws.1 to 4 are closely related, their evidence is
\nclear and categorical  in  reference  to  the  frequent  quarrel  between  the
\ndeceased and the respondent, the beating and the ill treatment received by the
\ndeceased at the hands of the respondent which compelled her to leave his house
\nand  come  to her matrimonial home permanently and as to the persuasion of her
\nparents to adjust and live with the respondent.  As  a  matter  of  fact,  the
\ndeceased  had  told them, which is spoken to by P.Ws.1 to 4 consistently, that
\nif she goes back, her life will not be safe in the hands  of  the  respondent.
\nThe  complaint,  which  was  given immediately thereafter, also speaks of this
\nquarrel.  The written statement also admits about the  serious  difference  in
\nreference  to  the  ear-boring ceremony and also says that the deceased was an
\negocentric woman with stubborn qualities.    The  facts  that  the  respondent
\nsuspected  her  fidelity, as this happened during a holiday tour and that from
\nthen onwards, the respondent did not like her talking to any  male  or  female
\npersons, has been spoken to by P.W.2, the father of the deceased; P.W.1, P.W.3
\nand  P.W.4 also speak about the dislike of the deceased towards the respondent
\nand of the facts that he did not like  the  deceased  spending  even  her  own
\nsalary  and  that  he  beat her and often quarreled with her on these accounts
\nhave been clearly spoken to by them and we find that their evidence  is  true.
\nThere is evidence to the fact that the deceased apprehended danger to her life
\nand  hence  she  came  away with her bag and luggage to her parents’ house and
\nthat she was compelled by her parents to go back to her house.  We  find  that
\nthere were admittedly, frequent quarrels and the respondent had been strict on
\nthe  deceased  spending  her salaries and suspecting her fidelity, and a stage
\nreached when the deceased felt unsafe to live with him  and  hence  came  away
\nwith her  bag  for a separation.  This was two months prior to the occurrence.
\nThe immediate quarrel started over the ear-boring  ceremony,  as  admitted  by
\nboth.   There  was a refusal on the part of the deceased to participate in the
\nceremony with the respondent’s relatives and her insistence  was  to  make  it
\nsimple affair.    If the deceased were not to go in for the ceremony scheduled
\nto be held on 1.6.1992, the respondent was bound to suffer.   He  admits  that
\nthe deceased  was  stubborn and egocentric.  This is what is stated in Ex.P.1,
\nthe complaint given by P.W.1 :\n<\/p>\n
        “vd; khkh FL:k;g jfuhW fhuzkhf mf;fh  tre;jpia  gyte;jkhf  ghj;UKf;Fs;
\njs;sp\/  cs;gf;fkhf  jhHpl;L\/  mf;fhit  jhf;fpa[k;\/ mts; nky; kz;bzz;bza; Cj;jp
\njPitj;Js;shh;.”\n<\/p>\n
In these circumstances, the contention  that  there  was  no  motive  for  the
\nrespondent  to  do  away  with  the  deceased or that they were living happily
\ncannot be accepted.\n<\/p>\n
                21.  OCCURRENCE :  The fact that on 29.5.1992  at  about  0920
\nhours,  the  deceased Vasanthi, the wife of the respondent, was burnt to death
\nis not in dispute.  But, the question that arises for determination is whether
\nit was a murder, as contended by the  prosecution  or  a  suicide\/accident  as
\npleaded by the respondent.\n<\/p>\n
                22.   To  rule  out  the possibility of suicide, the following
\ncircumstances are relevant.  Firstly, the deceased had gone to  the  house  of
\nher  parents  just  across  the  street at 8.30 am on 29.5.1992 along with her
\nchildren and took breakfast there.  At that time, P.W.2, her father, told  her
\nthat he was going to take her mother to the Government Hospital, for which the
\ndeceased  is said to have replied that she was to attend her second shift duty
\nand wanted her parents to come back quickly in order to leave  her  baby  with
\nthem.   Vasanth  Kumar,  another  brother of the deceased (not examined), took
\nSowmiya, the first daughter  of  the  deceased  to  the  school,  whereas  the
\ndeceased  left the baby in her parents’ house and thereafter, she went back to
\nher house.  After some time, the baby started crying and therefore, P.W.3, the
\nyounger sister of the deceased, took the child to her sister’s house and after
\ninforming her sister, who was in the kitchen, that the  boy  was  crying,  she
\nleft him in the house and went back to their house.  According to her, she was
\nalso observing  whether  her  sister takes care of the child.  Within minutes,
\nshe saw the respondent taking the child and therefore, she came back to  their
\nhouse.  This  was  at  9  am.    Therefore,  if  there was any problem for the
\ndeceased at that time, she had the full opportunity to tell the  same  to  her
\nparents  and  her  brother and sisters who were available at the house at that
\ntime.  On the other hand, she has informed her  father  that  she  was  having
\nsecond shift  duty and had requested them to come back early.  Even though the
\nrespondent has  stated,  on  his  being  questioned,  that  the  deceased  had
\nattempted  to  commit  suicide  on  earlier  occasions, there is absolutely no
\nevidence in support of that claim.\n<\/p>\n
                23.  Secondly, apart from this oral evidence, it could be seen
\nthat the bathroom, where the deceased is said to have been burnt, is  said  to
\nbe a small cramped room measuring 4’1″ x 4’1″ with a low wall of 4<\/p>\n
‘ height.   The bathroom is accessible to anybody to jump over the 4′ wall and
\na person can observe easily as to  what  is  happening  inside  the  bathroom.
\nThirdly, there are two rooms in the respondent’s house, namely a bedroom and a
\nreading  room,  of  which  the bedroom is available without any disturbance or
\naccess from outside.  Fourthly, the child aged six  months  was  left  in  the
\nrespondent’s  house  and  the  deceased had the opportunity to leave the child
\nsafely in her parents’ house, but she did not do so.   Fifthly,  she  was  not
\nalone  in the house so as to attempt a suicide as any of her attempts could be
\nthwarted.\n<\/p>\n
                24.  Sixthly, P.W.12, Doctor R.  Balaraman, Junior  Specialist
\nof  Forensic Medicine, has stated in his chief-examination, “If a person pours
\nkerosene by himself or herself on head, it would spread over the  back  also”.
\nEx.P.8,   the   Post-   Mortem   Examination   Report  says  that  there  were
\nepidermo-dermal burns present all over  the  body  excepting  back  of  chest,
\nabdomen and  right  foot.    Seventhly, the observation magazar, Ex.A.2 states
\nabout the finding of 18 burnt match sticks, two unburnt  match  sticks  and  a
\nburnt match  box.   The preliminary particulars of the deceased as recorded in
\nEx.P.7 by the Inspector of Police found, on the body of  the  deceased,  above
\nthe  left eye-brow, an incised wound and in Column No.3, it is stated that the
\nsaid injury appears to have been caused by a sharp weapon.    The  Post-Mortem
\nCertificate  also  says  that there is a lacerated injury 2.5 x 1 cm bone deep
\npresent over the forehead on left side.  The doctor, in  his  chiefexamination
\nsays, “lacerated injury found on the left forehead of the deceased was fresh”.
\nOf  course,  he says in the cross-examination that the lacerated injury on the
\nleft forehead would have been caused by coming  into  contact  with  any  hard
\nobject.  He further says that if intense is applied, cracks and fissures occur
\non the  skin  and  that  they  may resemble incised or lacerated injuries.  In
\nEx.A.7, the requisition to conduct the post-mortem addressed to  the  Resident
\nMedical  Officer  in  reference  to  the body of the deceased, it is stated as
\nfollows :\n<\/p>\n
“Column No.2 :\n<\/p>\n
        Injuries found on the body –\n<\/p>\n
        (1) A lacerated injury on the left side of      the head over the left
\neye-brow.\n<\/p>\n
        (2) The body was found charred.\n<\/p>\n
Column No.3 :\n<\/p>\n
        Type of weapons that would have been used
\nfor causing the injury –\n<\/p>\n
        (1) Sharp weapon appears to have been used.     (2) Burn injuries.”\n<\/p>\n
From the records and the evidence, it is clear that the lacerated injury 2.5 x
\n1 cm is bone deep and that the injury could not  have  been  a  self-inflicted
\ninjury and hence, the suggestion that this could have been caused by the burns
\nis not  probable.    When  the  deceased  is found charred, why this lacerated
\ninjury alone should result out of the burns is not explained.\n<\/p>\n
                25.  None of the prosecution witnesses namely the father,  the
\nbrother and the sisters of the deceased speak of her possibility of committing
\nsuicide.   The  defence  statement  says  that “Vasanthi should have committed
\nsuicide for reasons best known to her”.  There is no immediate statement  made
\nprior to  this  incident  by the deceased as per the defence statement.  There
\nshould have been some wordy quarrel etc.    between  the  respondent  and  the
\ndeceased which  was  preceded  by  the incident.  The defence statement admits
\nthat she was of a stubborn  character.    From  the  evidence  available,  the
\ncircumstances  of  this case and the material objects found, we are clearly of
\nthe view that there is no scope for the suicide theory and that this cannot be
\na case of suicide.\n<\/p>\n
                26.  Apart from the circumstantial and oral evidence, we  have
\ngot  the  answers  of  the respondent given to the questions put to him by the
\nCourt under Section 313 Cr.P.C.   and  his  defence  statement  under  Section
\n233(2) Cr.P.C.    The questions and the answers are extracted below for better
\nappreciation :-\n<\/p>\n
Q.  No.11 :  He (P.W.1) added that at about 9.25 am, he heard the  screams  of
\nhis  deceased sister and immediately he came to your house and when he entered
\nyour house, he noticed you jumping and coming out from bath room and  was  not
\nwearing  any  clothes,  and on your chest and body, there were burnt injuries.
\nWhat do you say ?\n<\/p>\n
Ans.:  On hearing the cries of my wife, I attempted to  save  her  by  jumping
\ninto  the  bath room as it was locked and since could not do so, I came out of
\nit by jumping.  In the process I sustained grievous injuries.\n<\/p>\n
Q.  No.12:  He added that on seeing you he asked  the  reason  for  sustaining
\ninjuries  and you asked him to call an autorickshaw and he asked his neighbour
\nNarayanan to bring an auto, auto came and on seeing the auto, you got into  it
\nand left the place.  What do you say ?\n<\/p>\n
Ans.:  I told him what had happened.  (Not Clear) …..\n<\/p>\n
I took the auto to the hospital, along with a person sent by him.\n<\/p>\n
…..\n<\/p>\n
Q.  No.15:    He added that they placed gunny bags on the body of the deceased
\nand put off the fire, lifted the body and asked her  what  had  happened,  for
\nwhich  the  deceased replied that you beat and burnt her pouring kerosene oil.
\nWhat do you say ?\n<\/p>\n
Ans.:  I do not know whether she was alive or not.  It  is  not  true  that  I
\npoured kerosene and set her fire.\n<\/p>\n
Q.  No.16  :   He added that at that time, his sisters Subathira and Kanimozhi
\nwere following with the body and when they brought the deceased  to  the  hall
\nshe lost her breath.  What do you say ?\n<\/p>\n
Ans.:  I do not know whether she was alive.\n<\/p>\n
…..\n<\/p>\n
For Q.  No.28, the accused has stated that she has committed suicide.\n<\/p>\n
Q.  No.35  :    She  (P.W.3) added that immediately, she and her sister ran to
\nyour house and noticed that you had burnt injuries and  P.W.1  rushed  out  to
\nfetch  an  auto  and  when  the auto came, you got into it and left the place.
\nWhat do you say ?\n<\/p>\n
Ans.:  It is true.  I told what had happened.\n<\/p>\n
…..\n<\/p>\n
Q.  No.82 :  Have you got anything to say in this case ?\n<\/p>\n
Ans.:  My deceased wife earlier attempted to  commit  suicide.    (Not  Clear)
\n…..  She  got that tendency.  On the date of crime, I came to know about her
\nburning only when I heard her screams noticed.  I jumped into the bath room to
\nsave her.  When I could not do so and since I was burnt and unable to open the
\nbath room door, I jumped out of the room on hearing.  I have not committed any
\ncrime.  I am also filing the written statement and counter both under  Section
\n313 Cr.P.C.  read with 233(2) Cr.P.C.”\n<\/p>\n
                27.   The relevant portion of the written statement translated
\nreads as follows :\n<\/p>\n
                “On the date of occurrence just prior to 9  or  9.30  am,  the
\ndeceased  told  me that ear-boring ceremony should not be conducted along with
\nmy family members.  I did not agree.  I was reading in my reading room.    The
\nmain door was  kept open.  Suddenly I heard groaning sound.  Then itself there
\nwas a smoke.  I was wearing lungi.  I was putting on  a  turkey  towel  on  my
\nbody.  There  was  fire  leaping  from the bathroom.  There was full of smoke.
\nSince the bathroom door was locked from inside, I climbed  over  the  bathroom
\nwall and  jumped  inside.    First, I tried to open the bathroom door so as to
\nbring Vasanthi outside.  My left hand  thumb  was  injured  in  that  process.
\nFurther, the  bathroom was a small place.  Since Vasanthi was lying across the
\nbathroom over the stove and her head was broken, I suffered burn injuries  and
\nI could  not  manage,  so I came back by jumping.  I was feeling thirsy and my
\ntongue was struck and I could not talk.  I showed my hand towards the baby  to
\nthe public who  came  inside  the house.  I became unconscious.  Somebody from
\nthe public took an auto and sent me to a hospital.  I was not steady  and  was
\nin an unconscious state.  The doctor asked me something, I could not talk.\n<\/p>\n
        …..   Vasanthi,  for  reasons  known  to herself, should have poured
\nkerosene from the stove and  committed  suicide.    Or,  while  attempting  to
\nprepare  hot  water  for  the child, her saree should have caught fire and she
\nshould have fallen on the stove and got burnt.  I have not poured kerosene  on
\nher.  The  evidence  of  P.Ws.1, 2, 3 and 4 is false.  Vasanthi could not have
\ntold the words, “Mama (myself) beat and burnt me”.  The witnesses had seen the
\ndead body only in the bathroom.  They  are  giving  evidence  because  of  the
\nenmity against me.”\n<\/p>\n
The  case  of  the respondent is that he attempted to save his wife by getting
\ninto the bathroom and on his failure and on  his  getting  burn  injuries,  he
\njumped over the bathroom wall and came out and went into the hospital with the
\nassistance in  an unconscious state.  Even before the doctor, he could not say
\nanything.\n<\/p>\n
                28.  The above stand of the respondent is clearly falsified by
\nthe following evidence.  Admittedly, the respondent was seen jumping over  the
\nbathroom  wall  by all the witnesses namely P.Ws.1, 3 and 4 and it is admitted
\nby the respondent himself that he jumped over the bathroom wall and came  out.
\nIt  is  the  further case of the prosecution witnesses that he was not wearing
\nany cloth on his body at that time.  This was clearly spoken to  by  P.W.1  in
\nhis evidence  as well in his complaint to the police.  The observation magazar
\nEx.A.2 also says that there was a burnt kaili  inside.    For  question  no.11
\nunder  Section  313  Cr.P.C.,  the  respondent  has not disputed as to his not
\nwearing any cloth while jumping out the bathroom.\n<\/p>\n
                29.  It is further seen from the evidence that the  respondent
\nanswered  to  question  no.12  that he had told P.W.1 as to what had happened.
\nFor question no.35 that he came out, got into the  auto  and  left  the  place
\nwithout telling anything, his answer was that he had told what had happened.\n<\/p>\n
                30.   Ex.P.14,  the  Medico-Legal  Examination  Report  of the
\nrespondent states as follows :\n<\/p>\n
        Name – and found the following :   “Alleged  to  have  sustained  burn
\ninjuries  while  lighting  a  stove  at 9.30 am on 29.5.1992 at his house.” In
\nreference to the column detailed ‘description of injuries  etc.’,  the  doctor
\nhas stated as  follows  :    “C\/O  pain  and  burning  all over body.  No H\/O,
\nLOC\/Vomitting\/Convulsions.  Conscious oriented.  Pulse 96\/ minute REG.   BP  =
\n160\/110 mm.    The injuries suffered shown in the column is 1% on neck, 18% on
\nthe chest, 2% on the right fore arm, 4% on the left fore arm and totally 6% on
\nboth the legs.  Some totalling 38 % burn injuries.”\n<\/p>\n
This statement recorded by the doctor falsifies the  case  of  the  respondent
\nthat  he  went  to  the  rescue  of his burning wife and jumped out due to his
\ninability to help her.  The admitted statement said to have been made  by  him
\nafter  coming  out,  that  he had told the people what had happened, cannot be
\ntrue.  If he had told so, the reaction of P.W.1  and  others  gathered  there,
\nwould  have  been  to  save  Vasanthi  and  give  first aid to the respondent.
\nTherefore, the  written  statement  of  the  respondent  that  he  was  in  an
\nunconscious state after climbing over the bathroom wall and that he was not in
\na position  to  talk  to anybody is clearly a false statement.  On his own, he
\nhas stated that he had told what had happened and that  he  was  found  to  be
\nconscious  and  oriented and was able to tell the doctor that he had sustained
\nthe injuries while lighting a stove at  his  house.    Considering  the  clear
\nmedical  examination  report  with  the thumb impression of the respondent, he
\ncannot dispute that he did not say anything to the doctor.    P.W.6,  who  had
\naccompanied  the  respondent  to the hospital, had stated that when the doctor
\nasked the respondent how he sustained the injuries, he had replied that due to
\nthe  bursting  of  the  kerosene  stove,  he  had  sustained   the   injuries.
\nThereafter, the  doctor  had  asked him to get a O.P.  Chit in the name of the
\naccused and he went and brought the O.P.  Chit and gave it to the  doctor  and
\nafter leaving  the  respondent  there, he left the place.  In the statement of
\nP.W.6 in the crossexamination, his statement that he did not remember  whether
\nthe  accused  gave  his  answer  to the doctor in English or in Tamil does not
\nmaterially affect the answer of the respondent since he was  accompanying  the
\nrespondent  for the purpose of admitting him in the hospital and the statement
\ncould have been only by the respondent himself.  There is nothing  to  suspect
\nthe  entries  made by the doctor as the respondent was fully conscious as seen
\nfrom the facts and circumstances of the case.\n<\/p>\n
                31.  The stand of the respondent  that  though  his  wife  was
\nburning  inside  the  bathroom, he came out of the bathroom and left the house
\nwithout uttering a word to all those assembled in the house and  further  that
\nhe  did  not  help them to save his wife and his further conduct clearly prove
\nthe guilty mind of the respondent.  The  further  circumstances  available  on
\nthis aspect are as follows :\n<\/p>\n
                (1)  After  climbing  down the bathroom wall, he ought to have
\ntaken a cloth to wear and waited for  the  auto  to  arrive  and  should  have
\ntravelled  for  a  considerable  time  to  reach the hospital and informed the
\ndoctor as to how he sustained the injuries.  The medical report also says that
\nhe was conscious and oriented.  Therefore, though  the  respondent  was  fully
\nconscious,  he did not choose to make any attempt to try to help the people to
\nget his wife out of the bathroom and to give her the treatment.  The  plea  of
\n‘unconsciousness’ is made only to get out of this unnatural conduct.\n<\/p>\n
                (2)  His  guilty  mind  is  also  further  revealed  from  his
\nassertion in the answer to the questions put to him by the court under Section
\n313<\/span><\/p>\n
Cr.P.C.  For the question that after the fire was put off, when  the  deceased
\nwas  asked  as  to  what  had  happened,  she is said to have replied that the
\nrespondent had beaten and burnt  her  pouring  kerosene  oil,  for  which  the
\nrespondent’s answer  was,  “I did not know whether she was alive or not”.  For
\nthe next question that the deceased lost her breath  only  in  the  hall,  the
\nrespondent says,  “I  do  not  know  whether she was alive”.  From this, it is
\nclear that the respondent was sure that his wife was dead in the bathroom  and
\nthat  should  be  the circumstances which impelled him to reply doubting about
\nher replies or as to her breathing her last in the hall.\n<\/p>\n
                32.  Apart from this, it is seen from the evidence that  there
\nare 18<\/p>\n
burnt  match  sticks found in the middle of the bathroom which only shows that
\nthese match sticks should have been  used  for  the  purpose  of  burning  the
\ndeceased.   The  first  reaction  of  the  respondent,  on finding the alleged
\nattempt of the deceased to commit suicide, is just to shout  across  the  road
\nfor  help  to  get  the brother and sisters of the deceased; secondly, to find
\nsome material to stop the burning before jumping into the bathroom.    On  the
\ncontrary,  he  is  said  to  have  jumped  into the bathroom without informing
\nanybody, when the front door was kept very much open and when the relatives of
\nthe deceased were just 20′ across the road, later came out  of  the  bathroom,
\nleaving his kaili\/cloth in the bathroom, did not say what was happening in the
\nbathroom and  simply  left  for  the  hospital.    This clearly shows that the
\nrespondent has deliberately acted to see  that  his  wife  died  out  of  burn
\ninjuries.   The 18 burnt match sticks, the burning of the front portion of the
\nbody of the deceased, the deep incised wound on the left  forehead  caused  by
\neither  a blunt object or a sharp weapon and the burn injuries suffered by the
\nrespondent himself on both his fore arms, chest as well  his  legs  only  show
\nthat it quite probable that the deceased was initially hit with a blunt object
\nor  a  sharp  weapon  and  was taken to the bathroom, laid there on the floor,
\nkerosene was poured over her and all the match sticks were used  in  order  to
\nlight  the various parts of her body and after finding the whole body burning,
\nthe respondent ought to have bolted the door from inside to make it  appear  a
\nsuicide, climbed  over  the bathroom wall and jumped out.  P.W.1, rushing into
\nthe house at that moment, seeing the respondent climbing out of  the  bathroom
\nnaked, should have asked him as to what had happened and that should have been
\nthe  reason for his not informing P.W.1 or anybody else about the alleged fact
\nthat Vasanthi was committing  suicide  by  burning  herself  or  that  he  had
\nsustained  the  injuries on his body while trying to help Vasanthi and his not
\nmaking any attempt to help others to rescue Vasanthi.  Instead,  he  tried  to
\nget  out  of  the place by going to the hospital with the help of P.W.1 to get
\nhimself treated.\n<\/p>\n
                33.  Apart from these clear circumstances pointing the  needle
\nof guilt towards the respondent, there is clear evidence of the oral testimony
\nof P.Ws.1,  3,  4 and 5.  All of them speak of the deceased uttering the words
\nbefore she breathed her last that it was “Mama” ( accused\/respondent) who  had
\nbeaten and  burnt  her  pouring  kerosene  oil.   The deceased is said to have
\nstated so to P.W.1.  P.W.3, the younger sister Chitra, also heard the deceased
\ntelling that ‘Mama’ (accused\/ respondent) poured kerosene oil and set  her  on
\nfire.   P.W.4,  another sister by name Subathira, also says that she heard the
\nreply of the deceased that the accused\/respondent beat her, poured kerosene on
\nher and set her on fire.  P.W.5 is an independent  witness,  their  neighbour,
\nwho  came  running  after hearing the cries of the sisters of the deceased and
\nP.W.1.  He helped them to break open the bathroom door,  where  he  found  the
\ndeceased lying  and  burning.    According to him, himself and P.W.1, with the
\nhelp of gunny bags, put off the fire and thereafter, both of  them,  with  the
\nhelp  of  P.W.3,  lifted  the  body and while coming out with the body, at the
\nentrance, they felt that she was still conscious and P.W.1 asked her what  had
\nhappened,  for  which  she  is  said  to  have said something and that she was
\nmurmuring.  P.W.5, who is said to have stated in his statement  under  Section
\n161  Cr.P.C.,  that  the deceased had stated that it is the respondent who had
\nbeat her and burnt her pouring kerosene oil,  had  later  gone  back  and  had
\nstated  that he could not hear anything about what she had stated and that she
\nwas murmuring.  Therefore, he was treated as a  hostile  witness  and  in  his
\ncross-examination, he has denied the suggestion that he was disowning the said
\nstatement in order to help the accused.\n<\/p>\n
                34.  It is argued on behalf of the respondent that the medical
\nevidence  is to the effect that the deceased should have died instantaneously,
\nas delirium should have set in and hence, there was no possibility for her  to
\nutter the  words  alleged.  The final opinion of the doctor in the post-mortem
\nreport as to the cause of the death of the deceased is, “Died of shock due  to
\nburns.  Extent  of  burns  80%”.    The  doctor,  P.W.12,  has  stated  in his
\nchief-examination that on examination, he found sirngeing of scalp  hair  with
\nsmell  of kerosene, epidermo dermal burns present all over body except back of
\nchest and abdomen and right foot with a lacerated injury 2.5 x 1 cm, bone deep
\npresent over forehead on left side.  According to him, the burns found on  the
\nbody of the deceased could have been caused within ten minutes to halfan-hour.
\nIn  the  cross-examination,  he  says that he found Mucosa congested, implying
\nsuffocation.  This also, according to him, in turn, implies oxygen failing  to
\nreach the  brain  in  the  required  amount.   He states that the deceased had
\ninhaled kerosene through smoke and it ought to have reached  the  lungs,  from
\nthe lungs to the heart and then through other internal organs.  He also states
\nthat  if  a  person  is set ablaze by sprinkling kerosene, it produces intense
\nheat.  The intense heat will cause unbearable pain.  Then there will  be  loss
\nof fluid.    Because  of  the  above  symptoms  and  due  to  unbearable pain,
\nunconsciousness supervenes preceded by poor respiration and feeble  pulse  and
\ndrop of blood pressure.  This means in effect ‘shock’.  Shock means a state of
\nprofound  depression  of the vital processes of the body by reason of burns in
\nthis case.  Shock implies disorientation.  Disorientation means loss of normal
\nrelationship to one’s surrounding with failure to comprehend time,  place  and
\npeople.  The doctor further says as follows :\n<\/p>\n
        “If  death  has  ensued immediately after the burning, death must have
\nbeen preceded by delirium.”\n<\/p>\n
Taking advantage of this statement  of  the  doctor  that  death  should  have
\npreceded  by  delirium,  it  is  contended  that what the deceased had uttered
\nshould not be taken to have a meaning since it was uttered during a period  of
\ndelirium.  We are unable to agree with the said reasoning and argument.\n<\/p>\n
                35.   Modi’s  Medical  Jurisprudence  and  Toxicology  –  22nd
\nEdition, Chapter XI, at page 309, deals with the injuries from burns,  scalds,
\nlightning or  electricity.    Under the heading ‘Classification of Burns’, the
\neffects of burns have been spoken to.  Under the heading  ‘  Extent  of  Total
\nBody Surface Area’ at page 312, this is what the author states :\n<\/p>\n
                “To  estimate  the  amount of area affected by second or third
\ndegree burns in percentage (modern classification), the body is  divided  into
\ndifferent areas,  each representing nine per cent.  This is called the rule of
\nnine.  There is marked fluid loss resulting in shock when over 20 per cent  of
\nthe body is affected and usually over 50 per cent is fatal.\n<\/p>\n
        Under the heading ‘Causes of Death’, this is what is stated :
\n“(i) Immediate Causes of Death\n<\/p>\n
        (a) Shock  :   Severe pain and marked protein rich loss from extensive
\nburns which result  in  increased  capillary  permeability,  cause  shock  and
\nproduce a feeble pulse, pale and cold skin, and hypotension resulting in death
\ninstantaneously or  within 24 to 48 hours.  In children, it may lead to stupor
\nand insensibility deepening into come and death due to primary shock within 48
\nhours.\n<\/p>\n
        (b) Suffocation :  Persons removed from houses destroyed by  fire  are
\noften  found  dead  from  suffocation  due  to the inhalation of smoke, carbon
\nmonoxide and other irrespirable gases, which are products of combustion.    In
\nsuch a case, burns found on the body are usually postmortem.  Toxic inhalation
\nof  combustion  products of synthetic material may aggravate the anoxic effect
\nproduced by COHb.”\n<\/p>\n
The learned author also says that burns caused by  kerosene  oil  are  usually
\nvery  severe  and  are  known  from  its  characteristic  odour  and the sooty
\nblackening of body parts.  The learned author says that a shock may result  in
\ndeath instantaneously  or  within 24 to 48 hours.  Therefore, the statement of
\nP.W.12 is taken out of context  in  order  to  support  the  theory  that  the
\ndeceased would not have uttered anything after the burn injuries.\n<\/p>\n
                36.   Gradwohl’s  Legal  Medicine – Second Edition, in Chapter
\nXXI at page 380, under the heading ‘burns by fire’, says that  destruction  of
\nvictim  by  fire is one of the oldest methods used by murderers to conceal the
\ncrime and hence, every death  by  burning  where  the  victim  is  found  dead
\nrequires meticulous  medico-legal  scrutiny.    The  relevant  extract  of the
\nlearned author is as follows :\n<\/p>\n
                “The burns will usually commence lower on  that  side  of  the
\nlegs immediately  opposite  that part of the garment which first ignited.  The
\nonly parts of the body spared are usually the lower legs, the inner  sides  of
\nthe thighs  and the axillae, unless the victim has raised his arms.  Even with
\nmost extensive burns, some period of survival is  common,  especially  in  the
\nyoung.  In one case, the driver of a chemical lorry which caught fire survived
\nfor  24 hours with full thickness skin burns involving his entire body, except
\nfor the soles of his feet.”\n<\/p>\n
                …..\n<\/p><\/blockquote>\n
                “Heat lacerations and any other injury should be recorded.”
\n                …..<\/p><\/blockquote>\n
                “The presence of fine carbon  particles  in  the  trachea  and
\nbronchi,  often  intimately  mixed  with mucus, provides indisputable evidence
\nthat the decedent  had  inhaled  smoke  and  had  thus  been  alive  in  fire.
\nCarbon-impregnating the mucus may be swallowed and be found in the stomach.”\n<\/p>\n
                37.   HWV  Cox  Medical  Jurisprudence  and  Toxicology – XVII
\nEdition at page 545, under the heading ‘burns  under  special  circumstances’,
\nhas the following to say :\n<\/p>\n
                “Both  homicide and suicide by burning is not all the uncommon
\nand where inflammable fluids such  as  kerosene,  gasoline  or  other  organic
\nliquids  have  been used, then there may be some obvious signs of trickling of
\nthe burning fluids over certain parts of the body.  For instance, if a body is
\nsplashed with kerosene while lying on its back and then  ignited,  then  there
\nwill  be runs of burning liquid down the sides of the neck, sides of the trunk
\nbetween the thighs and the other  areas,  especially  where  the  clothing  is
\nabsent in this area.”\n<\/p>\n
Under the heading ‘suicide, accident or homicide, it is stated as follows :\n<\/p>\n
                “Whether a death is suicide, accident or homicide is largely a
\nmatter for  the  police investigation.  As mentioned above, suicide by burning
\nfluids is not uncommon  and  sometimes,  the  position  of  the  body  may  be
\ndetermined by the trickling marks of the fluid burns.”\n<\/p>\n
                38.   By  going through the medical report and the authorities
\non the subject, we find that the  body  of  the  deceased  was  lying  in  the
\nbathroom  on its back and that there were no burn injuries on the back side of
\nthe body.  If really the deceased had committed suicide  by  pouring  kerosene
\nfrom  her  head,  definitely the liquid would have spread both on the front as
\nwell as on the back side of the body and if really the  deceased  had  ignited
\nher  body  on  her  own,  the fire would have spread and burns would have been
\ncaused both the front as well as on the back side  of  the  body.    From  the
\nposition  in which the body was found, it is clear that kerosene was poured on
\nthe deceased while the body was lying and it was ignited, as a result of which
\nthere are no burn injuries on the back side of the  body.    Even  though  the
\nrespondent  has  attempted  to  put forward the theory that the deceased would
\nhave died instantaneously and that she would not  have  survived,  it  is  not
\nsupported  by the medical evidence given in this case or the authorities cited
\nabove.  On the other hand, it is seen that it  is  the  accused  who,  in  his
\nresponse to the  question  under Section 313 Cr.P.  C.  as to the statement of
\nthe deceased that it was the accused who had beaten her,  poured  kerosene  on
\nher  and burnt her, he has replied that he does not know whether she was alive
\nor not.\n<\/p>\n
                39.  Even P.W.5, who went back  from  his  earlier  statement,
\nadmits  that  the  deceased  was  conscious  when  she  was brought out of the
\nbathroom and was murmuring and that she died when she was brought to the hall.
\nIt is P.W.1, the brother of the deceased, who went first inside  the  bathroom
\nand  says that he heard his sister crying that she was burning and behind him,
\ntwo other sisters as well as P.W.5 were there.  P.W.1, P.W.5 and P.W.3  lifted
\nthe body  and  at  that time, she was conscious.  All the three who lifted the
\nbody, including P.W.5, admit that she was conscious.  It is  P.W.1  who  asked
\nthe  deceased  while lifting her as to what had happened and the deceased told
\nhim  that  the  respondent  beat  and  burnt  her  by  pouring  kerosene  oil.
\nTherefore, all the three eye-witnesses namely P.Ws.1, 3 and 4 speak clearly as
\nto the  replies  of  the deceased to P.W.1 to the same effect.  Their evidence
\nhas not, in any manner, been shattered in the cross-examination.\n<\/p>\n
                40.   Though  the  defence  tried  to  say  that  there  is  a
\ndiscrepancy  with  regard  to the place of the occurrence and the place of the
\ndeath, we do not find any such discrepancy.  According to P.W.1, the  deceased
\ndid  not  die in the bathroom and she had given a dying declaration inside the
\nbathroom before they lifted her.  P.W.1, in this regard, says as follows :\n<\/p>\n
                “Only after we lifted my sister and brought her back, I  asked
\nher what  had  happened.  Inside the bathroom, my deceased sister did not die.
\nI did state in Ex.P.1 that Vasanthi told that the accused poured kerosene  and
\nset  her  fire  and that she has stated this inside the bathroom and before we
\nlifted her, she died and that we brought her dead from the bathroom  and  laid
\nher in the  hall.    What I have stated in Ex.P.1 is not correct.  I have also
\ntold in my statement under Section 161 Cr.P.C.  that Vasanthi died inside  the
\nbathroom, i.e.   before we lifted her from the bathroom, she died.  I had also
\nadded in that statement that we brought the dead body and laid  in  the  hall.
\nMy statement  to  the police is also not correct.  We did not put our ear near
\nher mouth as what was telling was audible.”\n<\/p>\n
P.W.3, the sister of the deceased says as follows :\n<\/p>\n
                “Since they were not able to enter into the bathroom, standing
\noutside, my brother and Narayanan placed some gunny bags on the  body  to  put
\noff the  fire.    At  that  time,  my other sisters were also standing nearby.
\nLater, my brother and Narayanan lifted  my  sister  and  asked  her  what  had
\nhappened, for which she replied that Mama beat her, poured kerosene on her and
\nset her on  fire.    I  also  helped them in lifting the body.  Thereafter, we
\ncarried her to the hall and made her to lie on  the  ground.    She  lost  her
\nbreath.”\n<\/p>\n
She  has  denied the suggestion in the cross-examination that she had told the
\npolice that as soon as the deceased informed them about the incident, she died
\nand that they brought only the dead body to the hall.  She has also denied the
\nsuggestion that in order to take revenge against the accused, she was deposing
\nfalsely.  P.W.4 also says the same thing in her cross-examination as follows :\n<\/p>\n
                “We noticed that my sister was lying on the floor and burning.
\nP.  W.1 and Narayanan placed some gunny bags on the body of my sister and  put
\noff the fire.  She was lying on the stove.  P.W.1 and Narayanan lifted her and
\nwhile  bringing  her  to  the  hall,  on  enquiry by my brother as to what had
\nhappened, she replied back that Mama beat her, poured  kerosene  and  set  her
\nfire.   At  that  time,  myself  and  my  sister  Kanimozhi were also present.
\nThereafter, we brought my sister to the hall and made her to lie on the floor.
\nAt that time, she lost her breath.”\n<\/p>\n
In the cross-examination, she says,<\/p>\n
                “my sister lost her breath immediately after  replying  to  my
\nbrother.  I did not know when my deceased sister was brought to the hall.”\n<\/p>\n
From the above, the learned Sessions Judge also found that there are different
\nversions  given  during  the  cross-examination  and  in  paragraph  44 of his
\njudgment, he has found as follows :\n<\/p>\n
                “Altogether   a   different   version   was    given    during
\ncross-examination  by  evidencing  that  only  after  lifting the deceased and
\nbringing her out of the bath room he asked her what  had  happened  and  after
\nsaying so she died.  Unfortunately, he asserted in his cross-examination, that
\nwhat  he had stated in Ex.P.1 and before the police are not true and only what
\nhe evidenced before this court is correct.  Whereas, P.W.3  ,  sister  of  the
\ndeceased  and  P.W.1  who purported to have present when the deceased declared
\nthat  the  accused  was  responsible   for   her   death,   deposed   in   her
\nchief-examination,  that  after carrying the deceased to the hall she last her
\nbreathe.  During cross-examination, it was her version that the deceased  told
\nthat  the  accused  was  responsible  for  her  death, only after crossing the
\nbathroom and not inside the bathroom.  She also disowned her statement  before
\nthe police  that the deceased said those words inside the bathroom.  The other
\nsister, P.  W.4 of the deceased and P.W.1, who according to  the  prosecution,
\nwas present when the maker told that the accused beat, poured kerosene and set
\nher fire, informed her uncle Mohandoss about it.  In her crossexamination, she
\nhad  categorically  stated that she did not tell Mohanoss that the accused was
\nresponsible for the death of her sister.”\n<\/p>\n
In paragraph 62 of the judgment, the learned Judge further says that the  only
\nindependent  witness  did not endorse the evidence of the interested witnesses
\nP.Ws.1, 3 and 4 and that apart, the evidence is lacking on  the  part  of  the
\nprosecution, whether the deceased was in a fit condition to make any statement
\nas claimed by the prosecution.\n<\/p>\n
                41.   Thus,  we find that the learned Sessions Judge proceeded
\non the basis that in view of the  apparent  inconsistency  between  the  place
\nwhere  the  deceased  had given her dying declaration and the impossibility of
\nthe deceased to utter the words as per the medical evidence,  the  prosecution
\nhas not  established  their  case.  We are to see that the bathroom is a small
\ncramped place measuring 4’1″ x 4’1″ and when  the  deceased  was  burning  and
\nlying  inside  the  bathroom,  it  would  not  have  been possible for all the
\nprosecution witnesses to enter the same.  Admittedly, only two of them  namely
\nP.W.1  and  P.W.5,  Narayanan lifted her and they were taking her and removing
\nher from the bathroom to the hall and in that process, P.W.1 and P.W.5 had  to
\nput  off  the  fire  with  the help of gunny bags and thereafter she had to be
\nlifted from the bathroom, in which P.W.3 also assisted them.  In  the  process
\nof  lifting her and bringing her out of the bathroom, P.W.1 had asked her what
\nhad happened.  There is no possibility for P.W.1 to ask the deceased what  had
\nhappened,  even when she was burning, without first putting of the fire and it
\nis quite probable that P.W.1 should have first removed her from  the  bathroom
\nbefore asking her what had happened.  It stands to reason that a brother would
\nhave  gone  to  the  rescue  of  the deceased sister and to get her out of the
\nsituation before making enquiries as to the incident.  As a  matter  of  fact,
\nP.W.1,  not  suspecting the conduct of the respondent, had first tried to help
\nthe respondent when he climbed out of the bathroom with burn injuries  and  it
\nwas  he  who  tried to get an auto-rickshaw to enable the respondent to go the
\nhospital  for  treatment,  thinking  that  he  had  suffered  burn   injuries.
\nTherefore,  P.W.1,  P.W.3 and P.W.4 could have heard the deceased saying about
\nthe involvement of the respondent only in the process of  coming  out  of  the
\nbathroom before  laying her in the hall.  All the witnesses are clear that the
\ndeceased was conscious at that time and that she had implicated the respondent
\nin the incident.  As a matter of fact, excepting P.W.5 who went back later  on
\nhis  statement, the witnesses are clear that the deceased was audible and that
\nshe had told them as to what had happened.   As  we  have  seen  earlier,  the
\nmedical  evidence does not support the case of the respondent, as found by the
\nlearned Sessions Judge.\n<\/p>\n
                42.   Yet another infirmity, according to the defence, is that
\nwhen P.W.4 informed about this incident to her maternal uncle  Mohandoss,  she
\ndid  not  tell  him  that  the  accused was responsible for the death of their
\nsister.  P.W.2, the father of the deceased, has stated that he was informed by
\nhis brother-in-law Mohandoss that his daughter caught fire with  a  stove  and
\nwas serious.    The argument of the counsel is that if really the deceased had
\nstated that she was burnt by her husband, P.W.4 would have informed  the  same
\nto  her  uncle,  who  in  turn,  would have informed this to P.W.2 in the same
\nmanner.  Instead, what P.  W.4 had informed was that Vasanthi caught fire with
\nstove and was seriuos.  It is quite natural that when they informed the father
\nwithout giving a shock about the occurrence, they  would  not  have  told  him
\nabout the  heinous  nature  of  the  crime.   It is expected of relatives like
\nMohandoss to inform their close relatives like P.W.2  that  his  daughter  had
\nsuffered serious  burn injuries because of a fire with a stove.  From this, it
\ncannot be inferred that the deceased would not have stated about the incident.
\nP.W.13, the Sub Inspector of  Police  who  visited  the  scene  of  occurrence
\nimmediately after receipt of the wireless information, has stated that when he
\nasked  P.W.1  what  had  happened he orally told about the incident and on his
\nasking, P.W.1 gave a written complaint, Ex.P.1, but did not reveal the time at
\nwhich it was written.  Both P.W.13 and P.W.14 have denied the suggestion  that
\nEx.  P.1  was prepared after the arrival of P.W.14 at the scene at 2 pm.  From
\nthe records, it is seen that the information was given at 9.30  am  to  P.W.13
\nthrough  a  wireless  message  and  that  he  arrived at the scene immediately
\nthereafter and on receipt of the written complaint, the F.I.R.  was registered
\nat 11.10 am and after the investigation by P.W.14 and after taking of  inquest
\nover  the dead body, the body was sent to the Government Hospital, Pondicherry
\nand thereafter, he went to the accused and collected information regarding his
\nadmission in the hospital  and  on  his  enquiry,  the  accused  did  not  say
\nanything.   Thus,  we  find  that  the  report  as  well  as the investigation
\ncommenced immediately thereafter and from Ex.P.11, it is seen that the  F.I.R.
\nwas  registered  at 10.30 am and without any delay, steps were and on the same
\nday, the F.I.R.  was forwarded along with the complaint to the Judicial  First
\nClass Magistrate,  Pondicherry.  Though there is a discrepancy in reference to
\nthe place where the deceased breathed last, i.e.  in Ex.P.1 complaint,  it  is
\nstated  that Vasanthi died before she was brought out of the bathroom and that
\nthey only brought the dead body in the hall.  Whereas, in  the  evidence,  all
\nthe witnesses categorically say that while the deceased was being removed from
\nthe  bathroom  to  the  hall,  the  deceased uttered the words implicating the
\nrespondent upon enquiry and that she breathed her last when she  was  laid  in
\nthe hall.    Considering  the  facts  and  circumstances  of  the case and the
\nprobabilities that the distance between the bathroom and the hall must be less
\nthan 5 feet (refer Ex.P.6 Series) as stated above, we do not find any  serious
\ndiscrepancy so as to disbelieve the eye-witnesses.\n<\/p>\n
                43.  In SUMESH LAL VS.  STATE OF BIHAR [2002 (3) S.C.C.   27],
\nthe  Supreme  Court  has  held that minor inconsistencies in the evidence of a
\nwitness cannot be  a  ground  for  disregarding  the  evidence,  if  otherwise
\nacceptable as competent  and  truthful.  In MULAKH RAJ VS.  SATISH KUMAR [1992
\n(3) S.C.C.  43], the learned Judges of the Supreme Court have held that  in  a
\ncase  founded  on  circumstantial evidence, the prosecution must prove all the
\ncircumstances connecting the unbroken  chain  of  links  leading  to  only  on
\ninference that  the  accused  committed  the  crime.   If any other reasonable
\nhypothesis of the innocence of the accused can be  inferred  from  the  proved
\ncircumstances, the  accused  would  be  entitled  to the benefit.  The further
\nobservation of their lordships is as follows :\n<\/p>\n
                “What is required is not the  quantitative,  but  qualitative,
\nreliable  and  probable  circumstances  to  complete  the chain connecting the
\naccused with the crime.  If the conduct of the  accused  in  relation  to  the
\ncrime  comes  into  question,  the  previous  and  subsequent conduct are also
\nrelevant facts.  Therefore, the absence of the ordinary course of  conduct  of
\nthe accused  and  human probabilities of the case also would be relevant.  The
\ncourt must weigh the evidence of the cumulative effect  of  the  circumstances
\nand  if  it  reaches the conclusion that the accused committed the crime, then
\nthe charge must be held  proved  and  the  conviction  and  sentence  must  he
\nconfirmed.” (emphasis added)<\/p>\n
In STATE OF UTTAR PRADESH VS.  ANIL SINGH [1988 (SUPPLEMENT) S.C.C.  68<\/p>\n
6],  the  Supreme  Court  has  held  that merely because a prosecution witness
\nexaggerated  his  part,  that  by  itself,  is  no  ground  to  discredit  the
\nprosecution case, if otherwise true.  Their lordships observed in this context
\nas follows :\n<\/p>\n
                “…..   That  invariably, the witnesses add embroidery to the
\nprosecution story, perhaps for the fear of being disbelieved, but that  is  no
\nground to  throw the case over board the main.  If there is a ring of truth in
\nthe main, the case should not be rejected.  It is the duty  of  the  court  to
\ncull  out  the  nuggets  of  truth from the evidence unless there is reason to
\nbelieve that inconsistencies or falsehood are so glaring as to utterly destroy
\nthe confidence in the witnesses.”\n<\/p>\n
In the above said judgment, their lordships also say that the appellate  court
\ndoes   not  disturb  the  concurrent  finding  of  fact  reached  upon  proper
\nappreciation.  Even if two views are reasonably possible, one  convicting  and
\nthe  other  acquittal,  court  will not interfere with the order of acquittal.
\nTheir lordships also observed as follows :\n<\/p>\n
        “But the court will not hesitate to  interfere  if  the  acquittal  is
\nperverse  in  the  sense  that  no  reasonable  person would have come to that
\nconclusion or if the acquittal is manifestly illegal or grossly unjust.”\n<\/p>\n
Their lordships also held that it is not proper to  reject  the  case  of  the
\nprosecution  for  want  of  corroboration by independent witnesses if the case
\nmade out is otherwise true and acceptable.  In RAJENDRA KUMAR VS.    STATE  OF
\nUTTAR PRADESH (A.I.R.    1998  S.C.  2896), the Supreme Court held that in the
\nlight of the opinion of the  doctor  that  the  location  and  nature  of  the
\ninjuries  found  on the body of the accused were not consistent with the claim
\nthat he had tried to extinguish the fire on the deceased,  but  on  the  other
\nhand,  he  had tried to hold the deceased by his hands and to prevent her from
\ngoing out of the room, disbelieved the version of the accused.  In this  case,
\nthe  case of the respondent\/accused that he went into the bathroom to save his
\nwife could not have been true since no attempt was made by him  to  extinguish
\nthe fire on the deceased as claimed by him.\n<\/p>\n
                44.  In  ARVIND  SINGH  VS.    STATE OF BIHAR [2001 (6) S.C.C.\n<\/p>\n
407], while considering the dying  declaration  made  to  her  mother  by  the
\ndeceased, the Supreme Court has held as follows :\n<\/p>\n
        “Dying declaration ought to be treated with care and caution since the
\nmaker of the statement cannot be subjected to any crossexamination.  The dying
\ndeclaration,  has  not been made to any doctor or any independent witness, but
\nto the mother of the deceased who is said to have arrived at the place only in
\nthe morning.  The mother admittedly is an interested witness, though  that  by
\nitself  would  not  discredit  the  evidence  tendered  in court, but the fact
\nremains that the doctor’s evidence, considering the nature of burns, creates a
\nconsiderable doubt as to whether such a statement could be  made  half-an-hour
\nbefore the  death.  Reliance of the High Court on such a dying declaration has
\nto be scrutinized with a certain degree of caution.  The victim is  stated  to
\nhave  quietly  told  her  mother the reason of her death, a few minutes before
\npassing away.  This is not acceptable, more so, having regard  to  declaration
\nbeing made  to  the mother only.  Further, it is in evidence that the deceased
\nwas extensively burnt, including her mouth, nose and  lips  and  the  doctor’s
\nevidence  in  that case was that she could not have survived for more than ten
\nminutes in view of the extensive burns on her.  This was  another  reason  for
\nnot accepting  her  mother’s  evidence.   Another fact was that the police had
\nalready arrived when mother and brother of victim reached.   It  was  unlikely
\nthat  the  police  would  not  make  any  attempt to have the statement of the
\ndeceased on their arrival, and instead to wait for her mother’s arrival.    It
\nwas  also  noticed  that  the  deceased  was  in  a  fit condition to make the
\nstatement.  In this context, it was held that dying declarations would have to
\nbe dealt with care and caution.  Corroboration is not  essential,  but  it  is
\nexpedient to have the same in order to strengthen the evidentiary value of the
\ndeclaration.   Independent witnesses may not be available, but there should be
\nproper care and caution in the matter of acceptance of  such  a  statement  as
\ntrustworthy evidence” (emphasis added).\n<\/p>\n
The  question  of obtaining certificate of mental fitness of the deceased does
\nnot arise in this case.  The statement of the deceased is said  to  have  been
\nmade just  before  she passed her last breath.  The prosecution witnesses, who
\nwere available at that time near  the  deceased,  have  clearly  and  cogently
\nstated  that the deceased was conscious and had made the said statement and we
\nhave no reason to doubt the correctness and  the  authenticity  of  the  dying
\ndeclaration in question.\n<\/p>\n
                45.  In  JAWAHARLAL  VS.    STATE  OF MADHYA PRADESH [2001 (5)
\nS.C.C.  300], the Supreme Court considered the various circumstances in a case
\nof death by burning to establish the guilt of the accused.  In that case also,
\nthe burns were not found all over the body.  The torso part of the body  which
\ntouched the  floor  of the room was not found burnt.  Their lordships observed
\nas follows :\n<\/p>\n
                “Therefore, it is quite possible that after this assault,  the
\nvictim  is  said to have been physically rendered helpless so that there could
\nbe no resistance from her side.  In that view  of  the  matter,  it  is  quite
\npossible that  the  murder could have been committed by a single person.  Some
\nof the burn injuries were found to be postmortem.    This  is  proved  by  the
\nevidence of  the  doctor.   In a case of circumstantial evidence, the chain of
\ncircumstances should be firmly established and it should have the tendency  to
\nunerringly point to the guilt of the accused.”\n<\/p>\n
                46.  In NANAHAURAM  VS.  STATE OF MADHYA PRADESH (A.I.R.  1988
\nS.C.  912<\/p>\n
), the deceased was struck by a dacoit by gunshot wounds.  In the presence  of
\nthe  people  gathered,  the  deceased  told to take down his statement that he
\nrecognised the two accused among the dacoits and scribed the dying declaration
\nwith his thumb impression thereon.  He died while being taken to the hospital.
\nThe said dying declaration was not mentioned in the F.I.R.  The Supreme  Court
\nheld  in the facts and circumstances of that case that mere delay in recording
\nthe statement, which was indisputedly a lapse  of  the  prosecution  evidence.
\nThe Supreme Court approved the view of the High Court that the identity of the
\ntwo  appellants as being amongst the dacoits has been amply established by the
\nevidence of witnesses and this has been reinforced by  the  oral  and  written
\ndying declaration of the deceased.  A Division Bench of the Orissa High Court,
\nin BUDHIR  SINGH  VS.    STATE  (1983 CRIMINAL LAW JOURNAL 1020), held that if
\nafter searching scrutiny, the court is satisfied that  the  dying  declaration
\nrepresents a truthful version of the occurrence in which the deceased received
\nthe  injuries which led to his death, a conviction can be founded thereon even
\nin the absence of any independent corroboration.\n<\/p>\n
                47.  In STATE (DELHI ADMINISTRATION) VS.  LAXMAN  KUMAR  [1985
\n(4) S.C.C.   476], the Supreme Court considered the scope of an appeal against
\nacquittal and held that the pre-ponderance of judicial opinion is  that  there
\nis  no  difference  between an appeal against conviction and an appeal against
\nacquittal except that while dealing with  an  appeal  against  acquittal,  the
\ncourt  keeps in view the presumption of innocence in favour of the accused and
\nthe same stands fortified by the order of acquittal, and if the  view  adopted
\nby the High Court is a reasonable one and the conclusion reached by it had its
\ngrounds  well  set  on  the  materials  on  record,  the  acquittal may not be
\ninterfered with.  Once evidence has been led and the court  has  proceeded  to
\nreview  the  entire material, there is no limitation in law in the exercise of
\njurisdiction for the purpose of making a just decision.  Their lordships  also
\nheld  in  reference to the facts of that particular case that the deceased, in
\nher dying declaration made contemporaneously, as deposed to by the  witnesses,
\nhad stated that kerosene had been poured by the mother-in-law and the fire had
\nalso been  lit  by her.  Though the Supreme Court was not prepared to base the
\nconviction on the oral dying declaration alone, such  dying  declarations,  in
\ntheir  opinion,  were  not  to be totally rejected and the same can be used as
\ncorroborative materials.\n<\/p>\n
                48.  In AJIT SAVANT MAJAGVAI VS.  STATE OF KARNATAKA [1997 (7)
\nS.C.C.  110], their lordships laid down seven principles that would govern  to
\nregulate the hearing of appeal by the High Court against an order of acquittal
\nand also the scope of conviction solely on the circumstantial evidence.  Their
\nlordships held as follows :\n<\/p>\n
        “(1)  In  an  appeal  against  an  order  of acquittal, the High Court
\npossesses all the powers, and nothing less than the powers it possesses  while
\nhearing an appeal against the order of conviction.\n<\/p>\n
        (2)  The  High  Court  has  the  power  to reconsider the whole issue,
\nreappraise the evidence and come to its own conclusion and findings  in  place
\nof  the findings recorded by the trial court, if the said findings are against
\nthe weight of the evidence on record, or in other words, perverse.\n<\/p>\n
        (3) Before reversing the finding of acquittal, the High Court  has  to
\nconsider  each  ground on which the order of acquittal was based and to record
\nits own reasons for not accepting those grounds and  not  subscribing  to  the
\nview expressed by the trial court that the accused is entitled to acquittal.\n<\/p>\n
        (4)  In reversing the finding of acquittal, the High Court has to keep
\nin view the fact that the presumption  of  innocence  is  still  available  in
\nfavour  of  the  accused and the same stands fortified and strengthened by the
\norder of acquittal passed in his favour by the trial court.\n<\/p>\n
        (5) If the High Court, on a fresh  scrutiny  and  reappraisal  of  the
\nevidence and other material on record, is of the opinion that there is another
\nview  which  can  be reasonably taken, then the view which favours the accused
\nshould be adopted.\n<\/p>\n
        (6) The High Court has also to keep in mind that the trial  court  had
\nthe  advantage  of  looking  at the demeanour of witnesses and observing their
\nconduct in the Court especially in the witness-box.\n<\/p>\n
        (7) The High Court has also to keep in mind that even at  that  stage,
\nthe accused  was  entitled to benefit of doubt.  The doubt should be such as a
\nreasonable person would honestly and conscientiously entertain as to the guilt
\nof the accused.”\n<\/p>\n
                49.  In RAMILABEN HASMUKHBAI KHRISTI VS.   DAHYABHAI  ASHABHAI
\nKHRISTI PARMAL, in Criminal Appeal Nos.245 TO 247 of 2001, by a judgment dated
\n14.8.2002  reported  in Judgment Information System (JUDIS), the Supreme Court
\ndealt with a case which rested on dying declaration.  Their lordships, in that
\ncase, referred to the judgment in UKARAM VS.  STATE  OF  RAJASTHAN  [2001  (5)
\nS.C.C.   254], wherein it was held that though a dying declaration is entitled
\nto great weight, yet it is worthwhile  to  note  that  as  the  maker  of  the
\nstatement is not subjected to cross-examination, it is essential for the court
\nto  insist  that  the dying declaration should be of such nature as to instill
\nfull confidence of the  court  in  its  correctness.    The  court  should  be
\nsatisfied  that the deceased was in a fit state of mind to make the statement.
\nThus, in a case where the prosecution rested their case solely  on  the  dying
\ndeclaration,  the  court  should  be  cautious and satisfied on the mental and
\nphysical fitness and capability of the declarant to make the statement.    The
\nratio  laid  down  in this judgment will not apply to the facts of the case on
\nhand, since the prosecution does not rely solely on the dying declaration.\n<\/p>\n
                50.  Applying the principles laid down in the above decisions,
\nwe find in this case that the dying declaration was made to the first rescuers
\nof the deceased namely P.W.1 and P.W.5.  P.Ws.3 and 4 were also there when the
\ndeceased had made the statement.  Though P.W.5, an independent witness gave  a
\nstatement to that effect under Section 161<\/p>\n
Cr.P.C.,  he  later went back to the extent to say that the deceased was alive
\nand when she was taken out of the bathroom, she was murmuring,  but  he  could
\nnot hear what she said.  That did not exclude the other witnesses from hearing
\nwhat the  deceased  said.  P.W.5 did not say that the other witnesses also did
\nnot hear the statement of the deceased.  Further, the medical evidence is also
\nnot to the effect that she should have died instantaneously.    After  putting
\noff the fire, she was being taken to the hall and in the meanwhile, when asked
\nabout  the  incident,  she  is  said  to have stated, implicating the accused.
\nConsidering the whole cumulatively,  we  find  that  there  is  no  reason  to
\ndiscredit the eye-witnesses and the statement of the deceased.\n<\/p>\n
                51.  In  SHARAD  BIRDHICHAND  SARDA  VS.  STATE OF MAHARASHTRA
\n(A.I.R.  19<\/p>\n
84 S.C.  1622), the Constitution Bench of the Supreme Court, while considering
\nthe scope of Section 32(1) of the Indian Evidence Act, laid down the following
\nfive propositions :\n<\/p>\n
        (1) in view of the peculiar conditions of our society and the  diverse
\nnature  and  character  of  our people, it is necessary to widen the sphere of
\nSection 32 to avoid injustice.\n<\/p>\n
        (2) The test of  proximity  cannot  be  too  literally  construed  and
\npractically  reduced  to a cut-and-tried formula of universl application so as
\nto be confined in a straight-jacket.  Distance of time would  depend  or  vary
\nwith the circumstances of each case.\n<\/p>\n
        (3) The second part of Clause 1 of Section 32 is yet another exception
\nto  the  rule that in criminal law, the evidence of a person who was not being
\nsubjected to or given an opportunity of being crossexamined  by  the  accused,
\nwould  be  valueless  because  the  place  of crossexamination is taken by the
\nsolemnity and sanctity of oath for the simple reason  that  a  person  on  the
\nverge  of death is not likely to make a false statement unless there is strong
\nevidence to show that  the  statement  was  secured  either  by  prompting  or
\ntutoring.\n<\/p>\n
        (4)  Section  32 does not speak of himicide alone but includes suicide
\nalso.\n<\/p>\n
        (5) Statements and letters directly related to a death  would  clearly
\nfall within the four corners of Section 32 and therefore admissible.\n<\/p>\n
In  this  context, their lordships held that the evidence of witnesses who are
\nclose relatives and friends of the deceased should be examined with very great
\ncare and caution.  Their lordships held that if two views are possible that it
\nmay be a case of suicide and that it may be a case of murder and if  both  are
\nequally probable,  the  prosecution case shall stand disproved.  This has been
\nheld on the basis of the evidence in that case where it was held in  paragraph
\n165 as follows :\n<\/p>\n
                “In  the  instant case, while two ingredients have been proved
\nbut two have not.  In the first place, it has not doubt been proved that Manju
\ndied of potassium cyanide and secondly, it has also been proved that there was
\nan opportunity to administer the poison.  It has, however, not been proved  by
\nany evidence  that  the  appellant  had  the poison in his possession.  On the
\nother hand, as  indicated  above,  there  is  clear  evidence  of  P.W.2  that
\npotassium  cyanide could have been available to Manju from the plastic factory
\nof her mother, but there is no evidence to show that the  accused  could  have
\nprocured potassium cyanide from any available source.”\n<\/p>\n
The  Supreme Court also found that the circumstances afforded a greater motive
\nto the deceased to commit suicide than for the accused to commit murder.    In
\nour case, we do not find that there are two views on the death of the deceased
\nand the evidence on record as well as the circumstances clearly point out that
\nthere is only one possibility namely the accused committing the murder.\n<\/p>\n
                52.  In SANWAT  SINGH  VS.    STATE OF RAJASTHAN (A.I.R.  1961
\nS.C.  715), their lordships held that while  entertaining  an  appeal  against
\nacquittal,  the  High  Court  should  have substantial and compelling reasons.
\nTheir lordships held that the  High  Court  should  not  only  have  good  and
\nsufficiently  cogent  reasons or strong reasons after considering every matter
\non record having a bearing on the question of fact and the reason given by the
\ncourt below in support of its order of acquittal in arriving at the conclusion
\non those facts, but should also express those reasons in their judgment  which
\nled to hold  that acquittal was not justified.  In MULUWA VS.  STATE OF MADHYA
\nPRADESH (A.I.R.  197 6 S.C.  980), it was held by the Supreme Court that  when
\ntwo  views  on  evidence are reasonably possible, one taken by the trial court
\nand the other reached by the High  Court,  in  the  absence  of  any  material
\nirregularity,  manifest  error  or  illegality,  the  High  Court  should  not
\ninterfere with the order of acquittal, merely cause it thinks that  it  would,
\nsitting as a trial Court, have taken the other view.\n<\/p>\n
                53.    After   considering  the  oral  and  material  evidence
\ncumulatively, including the written statement of the respondent, we find  that
\nthe suicide  theory  of self-immolation is totally unsupportable.  In the same
\nmanner, the accident theory put forward by the respondent that she might  have
\nprepared  hot  water  for  her  daughter  after bolting the bathroom door from
\ninside and might have fell down also cannot be believed.  As a matter of fact,
\nin the statement of the accused under Section  313  Cr.P.C.,  he  had  clearly
\nstated that it was a suicide.  Whereas, there is an improvement in his written
\nstatement that  it  may  be  an  accident.    Once  this theory of suicide and
\naccident is ruled out, the respondent being the only person available  at  the
\nhouse  and  considering  the  conduct  of  the respondent of coming out of the
\nbathroom by jumping out it, instead  of  opening  the  bolt  and  coming  out,
\nwithout  any clothes on and leaving for hospital for his own treatment without
\ntelling the witnesses as to what had actually happened or even without  trying
\nto  rescue  the deceased and further informing the doctor that he had suffered
\nthe injuries while lighting the stove, instead of  telling  that  he  suffered
\nthose  injuries  while trying to help his wife, if it was really true, as also
\nhis subsequent conduct by claiming unconsciousness while  coming  out  of  the
\nbathroom  are  very  difficult  to  believe,  but  only proves that it was the
\naccused who has committed this dastardly murder of his wife.  The  conduct  of
\nthe  respondent is so unnatural and opposed to ordinary human conduct, leading
\nus to disbelieve his defence theory and coming to the only conclusion that the
\naccused ought to have committed the murder.  Therefore, assuming for the  sake
\nof  argument  that  the  dying  declaration  given  by  the deceased has to be
\neschewed, still the other circumstances are overwhelming to point out that  it
\nis the accused who is guilty of this crime.\n<\/p>\n
                54.   The  learned  Sessions  Judge,  in  paragraph  49 of his
\njudgment, has found that there was nothing unreasonable about the  conduct  of
\nthe  accused  for  his  inability  to  tell the reasons for his sustaining the
\ninjuries when P.W.1 asked him.  According to the  learned  Judge,  it  was  so
\n“because  he  was  in a disturbed state of mind as his wife was burning and he
\ntoo had sufficient burns.  That apart, an auto was arranged by P.W.1 and other
\npersons who had collected there and he was sent to the hospital.” The  learned
\ncounsel  for  the  respondent  submits that the accused suffered more than 38%
\nburn injuries.  But, he was not able to explain as to how those  injuries  had
\nbeen  caused and the attempts made by him and the manner in which the injuries
\nhad been caused to him while he is alleged to have attempted to save his wife.
\nIt is unfortunate that the investigating agency has not  examined  the  doctor
\nwho had  issued Ex.P.14, the report against the accused.  However, the accused
\nhad admitted to have climbed over the wall into the bathroom and came  out  of
\nthe bathroom by jumping over the wall on his failure to save his wife and that
\nhe  suffered the injuries while trying to save her and since the injuries have
\nbeen properly admitted by him, it is for the accused  to  explain  as  to  how
\nthose  extent  of  injuries  had been suffered by him while trying to save the
\ndeceased.  In the absence of any proper explanation and  from  the  facts  and
\ncircumstances  of the case, it is clear that it is the accused who had hit the
\ndeceased, made her to lie down, poured kerosene on various parts of  her  body
\nand  lighted  with  18 match sticks, each part of the body and when the flames
\nstarted coming, he ought to have been also caught in the fire and suffered the
\nburn injuries.\n<\/p>\n
                55.  We have also found that we have no reason  to  disbelieve
\nP.Ws.1,  3  and  4 as to the statement of the deceased and taking into account
\nthe cumulative evidence on record, we have to hold that the accused is  guilty
\nof the  crime.    We  find that the reasoning of the learned Sessions Judge is
\ntotally unsatisfactory.  In paragraph 48 of his judgment,  the  learned  Judge
\nsays  that if the intention of the accused was to get rid of her by his brutal
\nact, he would not have chosen the morning time, that too  after  9  ‘o  clock,
\nopening the  gate  especially for her kith and kin to witness it.  So much so,
\nit shows his innocence to save her life than to  put  an  end  to  her.    The
\nfinding  of  the learned Judge that the burn injuries found on the body of the
\naccused show his genuine intention to save her, and as the bathroom was bolted
\nfrom inside and as he was also burning, it was not feasible for  him  to  save
\nher and  therefore,  he  retraced  his steps.  We are unable to appreciate the
\nreasoning of the learned Judge.  Assuming for the sake of  argument  that  the
\naccused  could  not save his wife, his conduct in not informing others who had
\ngathered there to save his wife, but instead, taking an  auto  to  go  to  the
\nhospital  for  taking  treatment  for himself and informing the doctor that he
\nsustained the injuries while lighting the stove only show the guilty  mind  of
\nthe  accused  and  his conduct was not to save his wife, but to see to it that
\nshe dies of the burns.  In the written defence statement,  he  contradicts  by
\nstating  that he could not talk and further improvement is made in the defence
\ncounsel that he was not conscious.  This is fortified by the  answers  of  the
\naccused  to  the  questions  put  as  to his response for the statement of the
\nwitnesses that the deceased is said to have told them about  his  beating  and
\npouring kerosene on her, his reply was that it was not possible for her to say
\nso.   Even  accepting  the  case  of  the  respondent  that he came out of the
\nbathroom unable to save his wife, he cannot say that she was dead because  she
\nwas still burning and he had left the scene and the prosecution witnesses were
\nthere to  rescue  her.  When the statement of the deceased was put to him, the
\nhis reply was, “I do not know whether she was alive or not”, implying that she
\ncould not have been alive to make such a statement.\n<\/p>\n
                56.  We have taken into account  every  circumstance  and  the
\nevidence  and  considered  them  so  closely  and  carefully  so as to satisfy
\nourselves whether the prosecution has established the  guilt  of  the  accused
\nbeyond any  reasonable  doubt.   We are to point out that the investigation in
\nreference to the non-examination of the Doctor who had issued the Medico-Legal
\nCertificate (Ex.P.14) and the lack of evidence regarding the manner  in  which
\nthe incised  injury was caused to the deceased are not satisfactory.  However,
\nas discussed above, we are fully  satisfied  that  the  oral  and  documentary
\nevidence,  combined  with  the  defence  stand  of the respondent, as also the
\nvarious circumstances in the chain of events, clearly establish the  guilt  of
\nthe  accused  and  rule  out the reasonable likelihood of the innocence of the
\naccused.  We are clear, from the above, beyond doubt as to the involvement  of
\nthe accused\/respondent in committing the murder of his wife.\n<\/p>\n
                57.   For all these reasons, we hold the accused guilty of the
\ncharge of murder and he deserves the punishment for the same.  Accordingly, we
\nset aside the  judgment  of  the  learned  Third  Additional  Sessions  Judge,
\nPondicherry, find the accused\/respondent guilty of the charge against him that
\nthe  accused\/respondent  did commit murder intentionally, causing the death of
\nhis wife by hitting his wife with a blunt object, pouring kerosene on her  and
\nsetting  her  on  fire, thereby committing an offence punishable under Section
\n302 I.P.C.    We  impose  a  punishment  of  imprisonment  for  life  on   the
\naccused\/respondent.  The appeal is accordingly allowed.\n<\/p>\n
                                                (P.S.M., J.) (M.C., J.)\n<\/p>\n
                                                                04..09..2002<\/p>\n
Index :  Yes
\nInternet :  Yes<\/p>\n
ab<\/p>\n
To<\/p>\n
1.  The III Additional Sessions Judge, Pondicherry.\n<\/p>\n
2.  The III Additional Sessions Judge, Pondicherry
\nthrough Principal Sessions Judge, Pondicherry.\n<\/p>\n
3.  The District Collector, Pondicherry.\n<\/p>\n
4.  The Inspector General of Police, Pondicherry.\n<\/p>\n
5.  The Public Prosecutor, Pondicherry.\n<\/p>\n
6.  The Inspector of Police,
\nD.  Nagar Police Station,
\nPondicherry.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court State vs Jayabalan on 4 September, 2002 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 04\/09\/2002 Coram The Honourable Mr. Justice P. SHANMUGAM and The Honourable Mr. Justice M. CHOCKALINGAM Criminal Appeal No.65 of 1995 State, represented by The Public Prosecutor, Pondicerry. .. Appellant -Vs- Jayabalan .. Respondent Prayer: Appeal against […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-151401","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nState vs Jayabalan on 4 September, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-jayabalan-on-4-september-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Jayabalan on 4 September, 2002 - 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