Saturday, June 1, 2013

love marriage,burns,3 conflicting dying declarations,wife dies,very bad case handling,husb.acquitted



Notes from the detailed judgement below
  • Love marriage
  • Couple from different communities
  • withing three months of marriage there is a fire accident at home
  • husband and neighbour put off fire
  • take wife to hospital
  • wife makes three dying declarations - two to magistrates and one to police
  • she makes contradictory statements on these declarations
  • bad case handling at lower court
  • most of the witnesses , police, doctor etc are NOT examined by prosecution
  • HC unhappy with case handling at lower court
  • Husband acquitted





BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 22/11/2012

CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
AND
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

CRIMINAL APPEAL (MD).No. 56 of 2011

Arul Prasad
S/o.Sathiyanathan
No.9 TVK Road,
Near School Bus Stop
Sorampatti
Erode District.                ... Appellant
           
Vs.

The State, rep by
Deputy Superintendent of Police
Pasupathipalayam Police Station
Karur District.
Crime No.6560 of 2008            ... Respondent
                               
PRAYER

Appeal is filed under Section 374 of the Code of Criminal Procedure
against the conviction  and sentence passed by the  District and Sessions Judge, Karur District, made in S.C.No.94/2009.

!For Appellant ... Mr.V.Kathirvelu
           Senior counsel for
           Mr.K.S.Duraipandian

^For Respondent... Mr.C.Ramesh
           Additional Public Prosecutor

:JUDGMENT

(Judgment of the Court was delivered by S.NAGAMUTHU, J.)

        The appellant is the sole accused in S.C.No.94 of 2009 on the file of the learned Sessions Judge, Karur.  He stood charged for an offence under Section 302 IPC.  The trial  Court by judgment dated 07.02.2011 convicted him under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for one month.  Challenging the said conviction and sentence, the appellant is before this Court with this appeal.

        2. The case of the prosecution in brief is as follows:

        The deceased in this case was one Jeyashri, aged 19 years.  She belonged to Gowda community.  The accused belongs to Gavara Naidu community. They had fallen in love with each other and finally, they married on 23.03.2008. After the marriage, they were residing at Pasupathipalayam North street.  P.W.1 is the landlord of the said house.  The accused and the deceased were residing in the same as tenants.  P.W.1 was residing in a different house owned by him just opposite to the house, where the deceased was residing.  In due course of time, according to the prosecution, the accused developed suspicion  over the fidelity of the deceased.  Therefore, there were frequent quarrels and the accused started causing cruelties to her.  While so, on 21.05.2008, at about 10.30 a.m., the deceased was engaged in cooking. And at that time, due to the above motive, it is alleged that the accused removed the cap of a burning stove and poured kerosene from the stove on the deceased and set fire to her.  At that time, the accused also shouted at the deceased by saying "die with this".  On hearing the alarm raised by the deceased, P.W.1 rushed to the house of the accused.  She found the deceased nude, with injuries.  She was actually in flames.  The accused cried for help for water to douse the fire.  The accused as well as P.W.1 managed to extinguish the fire.   Then the accused took the deceased to the Government hospital at Karur and admitted her as inpatient at 11.30 a.m. on  21.05.2008.  (Neither the doctor, who admitted the deceased in the hospital, has been examined nor the accident register has been marked by the prosecution)  The Duty Medical Officer sent a message to the Judicial Magistrate, Karur, requesting her to record a dying declaration.  The injury found on the deceased as recorded by the Doctor was 100%.  Ex.P.21 is the intimation.

        3. On receiving the said intimation, P.W.11, the then Judicial Magistrate No.II, Karur, proceeded to the Government hospital, Karur and recorded her dying declaration at 1.00 p.m. on the same day.  One Doctor, V.Natesan, who was attending on the deceased, opined that the deceased was conscious and she was in a fit state of mind to make a voluntary statement.  The Judicial Magistrate also ascertained with the deceased by asking certain questions and based on the answers cogently given by the deceased and also on the opinion given by the Doctor, satisfied that the deceased was in a fit state of mind to make the dying declaration.  Accordingly, the Judicial Magistrate, recorded the dying declaration, Ex.P15.

        4. Thereafter, the father of the deceased viz., P.W.13, his wife, daughter and other relatives came down from Bangalore to Karur on 22.05.2008. Admittedly, they were by the side of the deceased.  Thereafter, the deceased told P.W.9, Dr.Geetha, who was attending on the deceased that she wanted to give yet another dying declaration to a Judicial Magistrate.  P.W.9 would state that initially, she did not take very seriously, the request made by the deceased. She would further state that because the deceased was repeatedly insisting her to send for a Judicial Magistrate for the purpose of recording dying declaration from her, she sent an intimation under Ex.P13 on 24.05.2008 at 2.15 p.m. to the Judicial Magistrate to record dying declaration again from the deceased.  On the basis of the said request under Ex.P13, P.W.2, the then Judicial Magistrate No.II, Kulithalai proceeded to the Government Hospital, Karur on 24.05.2008 at 6.05 p.m.  P.W.9 Dr.Geetha was still on duty in the hospital.  The Judicial Magistrate satisfied himself that the deceased was in a fit state of mind to make a dying declaration.  This satisfaction, according to P.W.2, was arrived at on the basis of his own enquiries with the deceased and on the basis of the opinion given by P.W.9.  Ex.P4 is the second dying declaration given by the deceased and recorded by P.W.2.

        5. Thereafter, P.W.8, the then Sub Inspector of Police went to the hospital on 27.05.2008 and recorded Ex.P8 statement from the deceased.  On returning to the police station, on the same day, she registered a case in Crime No.656 of 2008 under Section 498(A) IPC.   Ex.P.9 is the First Information Report.  Then she forwarded Ex.P8 and Ex.P9 to the Court.

        6. Taking up the case for investigation, P.W.8 proceeded to the place of occurrence, prepared observation mahazar and also prepared a rough sketch in the presence of P.W.1 and another witness.  Ex.P1 is the observation mahazar and Ex.P11 is the rough sketch.  She examined P.W.1 and few more witnesses and recorded their statements.  On 03.06.2008, the deceased succumbed to the injuries in the hospital.  Thereafter, P.W.8 handed over the case diary to P.W.12 for investigation.

        7. Taking up the case for investigation, P.W.12 altered the case into one under Section 174 Cr.P.C.  Ex.P16 is the alteration report.

        8. Since the death of the deceased was hardly within three months after her marriage, P.W.12 forwarded the relevant papers to the Sub Divisional Magistrate cum Revenue Divisional Officer, Karur for holding an inquest. Accordingly, P.W.10, the then Revenue Divisional Officer, Karur conducted inquest on the body of the deceased on 03.06.2008 in the Karur Government Hospital.  At that time, she examined the accused, P.W.1 and the parents of the deceased and recorded their statements.  Ex.P14 is the inquest report. On completing the inquest, the Revenue Divisional Officer forwarded the body for autopsy.   Then P.W.10 submitted her report to P.W.12 for further investigation.

        9. P.Ws.3 and 4 conducted autopsy on the body of the deceased. They found the following injuries:-Burnt wound with foul smelling seen on the scalp, neck, face, whole of upper and lower limbs, chest, abdomen, back of the body, except foot.  Hair-charred.  O/D skull-intact, Brain Pale, Hyoid Bone-intact, Trachea - No soot particles, Lungs - Pale, Heart - 50 ml. Of blood, Stomach - empty, Bladder -empty, Uterus - Bulky, alteration seem - 3ml.  All internal organs - Pale. Ex.P15 is the postmortem certificate.  According to the doctors, the deceased would appear to have died of septicemic shock due to the burn injuries.

        10. Continuing the investigation, P.W.12 arrested the accused on 04.06.2008 at 4.00 p.m., at his house in the presence of P.W.6 and another witness.  On such arrest, the accused made a voluntary confession.  Then, he was sent to Court for judicial remand.  In his confession, the accused disclosed that he would identify the place, where he had hidden the kerosene cane and an yellow bag.  Accordingly, he took P.W.12 and the witnesses to Amaravathi River bank, from where, he produced M.O.6 - plastic kerosene cane and M.O.7 - bag. These two articles were recovered by P.W.12 under Ex.P.7 mahazar.

        11. Then, P.W.12 forwarded the material objects to the Court.  He altered the case into one under Section  498A and 302 IPC on 06.06.2008. Ex.P17 is the alteration report.  The accused was also admitted in the hospital for the injuries sustained by him.  On 04.06.2008, P.W.12 examined Dr.Natesan and collected the accident register (Ex.P20) relating to the accused.  Thereafter, since P.W.12 was transferred, he handed over the case diary to the successor P.W.14.

        12. P.W.14 examined the Doctors, who conducted autopsy and recorded their statements. He also collected the medical records. On completing the investigation on 02.03.2009, he laid charge sheet against the accused under Sections 498(A) and 302 IPC.

        13. Based on the above materials, the trial Court framed a lone charge against the accused under Section 302 IPC.  Since the accused denied the charge, he was put on trial.  As many as 14 witnesses were examined, 22 documents were exhibited on the side of the prosecution besides 7 material objects.

        14. Of the 14 witnesses, P.W.1 is the vital witness.  As we have narrated above, he is the neighbour of the deceased and the landlord of the house, where the deceased was residing.  He has stated that on hearing the alarm raised by the deceased, he rushed to the house of the deceased, where he found the deceased in flames.  She was nude.  The accused was near her and he was crying for help and he was searching for water.  P.W.1 and the accused extinguished the fire on the deceased and thereafter the accused took her to the hospital.  P.W.11 the then Judicial Magistrate, No.II, Karur has spoken to about the dying declaration recorded by her on 21.05.2008. (Ex.P15) P.W.2 the then Judicial Magistrate No.II, Kulithalai, has spoken to about the dying declaration recorded by her on 24.05.2008.  P.W.8, the Sub Inspector of Police has spoken to about the statement given by the deceased to her on 27.05.2008 under Ex.P8. P.Ws.3 and 4 have spoken to about the autopsy conducted by them on the deceased. P.W.9 has spoken to about the condition of the deceased at the time when Ex.P4 dying declaration was recorded.  P.W.6 has spoken to about the arrest of the accused, the confession and the consequential recoveries of the material objects.  P.W.10, the then Revenue Divisional Officer has spoken to about the inquest conducted by her.  The others are official witnesses.

        15. When the above incriminating evidence were put to the accused under Section 313 Cr.P.C., he denied the same as false.  In the written statement made by him under Section 313 Cr.P.C., the accused has stated that while the deceased was cooking, accidentally, she came into contact with fire in the stove and thus, she sustained burn injuries.  On hearing the hue and cry of the deceased, according to him, he rushed to the kitchen and he extinguished the fire.  He has also stated that he sustained  burn injuries in the very same occurrence, while attempting to put out the fire.  Thus, according to him, he was innocent and he did not set fire to the deceased.

        16. Having considered the above materials, the trial Court found the accused guilty under Section 302 IPC and accordingly punished him.  That is how, the appellant is before this Court with this appeal.

        17. We have heard the learned Senior counsel for the appellant and the learned Additional Public Prosecutor for the State and we have also perused the records carefully.

        18. The learned Senior counsel for the appellant would submit that in this case, there are as many as 3 dying declarations recorded by three different persons.  The earliest dying declaration was the one recorded on 21.05.2008 by P.W.11, the then Judicial Magistrate No.II, Karur.  The learned Senior counsel would further submit that in that earliest dying declaration, the deceased has told that while she was cooking, she accidentally came into contact with the fire in the stove and that is how she sustained burn injuries.  She has also stated that her husband, who was there, extinguished the fire and in the said process, he also sustained burn injuries.  The second dying declaration was the one recorded by P.W.2 on 24.05.2008.  In the second dying declaration, the deceased has stated that the accused, out of suspicion over her fidelity, set fire to her by pouring kerosene taken out from the stove. The third dying declaration (Ex.P8) is the one recorded by way of a statement by P.W.8., on 27.05.2008.  In that also, she has stated that the she accidentally came into contact with fire.

        19. After taking us through these three dying declarations, the learned Senior counsel would submit that the earliest dying declaration should be given weightage of.  In any event, the learned Senior counsel would submit that if there are contradictory dying declarations made by the deceased, the benefit of doubt arising out of the same should be given only in favour of the accused.  In other words, according to the learned Senior Counsel, the dying declaration in favour of the accused should be given due consideration.

        20. The learned Senior counsel would further point out that at the time when the first dying declaration was recorded by the Judicial Magistrate, the parents of the deceased were not there by her side.  They rushed to the hospital only on 22.05.2008.  Thereafter only, according to P.W.9 Doctor, the deceased started   to insist to send intimation to the Magistrate to record yet another dying declaration.  From this, the learned Senior counsel would submit that after the arrival of the parents and the other family members of the deceased and on their tutoring, the deceased had changed her version and that is how, in Ex.P4 had come into existence.  The learned Senior counsel would further submit that regarding the material objects recovered at the instance of the accused, no importance could be attached, because, the relevance between these two material objects with the alleged crime has not been spoken to by any witnesses. In any event, the learned Senior counsel would submit that the prosecution has not proved the case and therefore, the judgment of the trial court requires interference.

        21. The learned Additional Public Prosecutor, per contra, would vehemently oppose this appeal. According to  him, when the first dying declaration came into existence, the accused was by her side taking treatment in the hospital.  It was because of the presence of the accused, the deceased was not free to speak the truth.  The learned Additional Public Prosecutor would rely on the evidence of P.W.9, Doctor Geetha, wherein she has stated that the deceased told her that because her husband insisted her not to tell the truth, out of fear, in the dying declaration, she did not tell the truth.  In the second dying declaration (Ex.P4) the deceased had stated that in the first dying declaration, because of the request made by her husband and due to fear for him, she did not disclose the truth. Relying on this, the learned Additional Public Prosecutor would submit that the first dying declaration cannot be given any weightage of and the same should be rejected.

        22. The learned Additional Public Prosecutor would further submit that in the subsequent dying declarations, i.e. Ex.P4, the deceased has very clearly stated that it was this accused, who set fire on her.  The learned Additional Public Prosecutor would also add that the lower court discarded Ex.P15 and has relied on Exs.P4 rightly.  Thus, according to the learned Additional Public Prosecutor, the conviction of the accused based on Ex.P4, requires no interference at the hands of this Court.

        23. We have considered the above submissions and we have also perused the materials available on record carefully.

        24. At the outset, we have to state that as rightly pointed out by the learned Additional Public Prosecutor, there are three dying declarations contradictory to each other.  In the first dying declaration, dated 21.05.2008 (Ex.P15), the deceased has clearly stated that she sustained injuries accidentally, while she was cooking by using kerosene stove.  Admittedly, when the dying declaration was recorded, the parents of the deceased were not there. They reached the hospital only on 22.05.2008.  As pointed out by the learned senior counsel for the appellant, it was only after their arrival,  the deceased expressed her desire to give yet another dying declaration.  Therefore, P.W.9 sent intimation to the Judicial Magistrate to record the second dying declaration.  Therefore, it is crystal clear that before 24.05.2008, the deceased would have been tutored by her parents.  The parents had motive because the deceased was abducted by the accused for the purpose of marriage. Therefore, no weightage could be given to Ex.P4.  In Ex.P8 again the deceased has told that while cooking, she accidentally came into contact with fire in the stove.  This dying declaration was recorded by P.W.8.  The lower Court has rejected this dying declaration stating that the said statement would not have been made at all by the deceased.  But P.W.8 was not treated as hostile at all by the prosecution.  It is not as though, the prosecution does not rely on the evidence of P.W.8 and Ex.P8. They have relied on the third dying declaration Ex.P8 and the evidence of P.W.8.  Had it been the case that P.W.8 was treated as hostile by the prosecution and had it been the case that according to the prosecution, Ex.P8 was not at all given by the deceased to P.W.8, then, we would have appreciated the trial Court for the finding that Ex.P8 would not have been given by the deceased.  But as we have stated above, the evidence of P.W.8 has not been disbelieved by the prosecution and the prosecution still wants to rely on Ex.P8.  The prosecution has projected Ex.P8 also as a true dying declaration of the deceased.  If that be so, Ex.P8 is fully in favour of the accused and is quite contrary to Ex.P4.  Ex.P8 is in consonance with Ex.P15.  Thus, out of three dying declarations, two dying declarations favour the accused and one is against him.  As we have already stated no weightage could be given to the second dying declaration (Ex.P4) for the reasons stated above. In any event, when there are multiple dying declarations, out of which, some are in favour of the accused and some are against him, quite naturally, as per the settled law, the dying declaration in favour of the accused should be preferred.  In this case, applying the said principle, we have only to hold that the prosecution has failed to prove that the accused set fire to the deceased.

        25. In respect of recovery of the plastic cane and yellow bag, as rightly contended by the learned Senior counsel for the appellant, the relevance between these two material objects with the alleged crime has not been spoken to by any witnesses.  In the absence of the same, the disclosure statement becomes inadmissible, as it does not satisfy the requirement of Section 27 of the Evidence Act.  Therefore, the recovery of the material objects, namely, the plastic cane and the yellow bag cannot be considered for any purpose.

        25. Now, turning to the manner, in which the prosecution case has been conducted before the trial Court,  we would like to express our dissatisfaction.  The prosecution has not chosen to examine the Doctor, who admitted the deceased in the hospital.  Similarly, the accident register pertaining to the deceased has also not been marked. When the deceased was admitted in the hospital, certainly, she would have given a statement to the Doctor.  The said statement, being the earliest one, should be given weightage as the earliest dying declaration. We are not able find as to what was the earliest statement made by the deceased to the Doctor.  Nextly, on 21.05.2008, one Dr.Natesan certified that the deceased was in a fit state of mind to make the dying declaration as found in Ex.P15 dying declaration.  But it is unfortunate that even the said Dr.Natesan, who was a witness to the dying declaration recorded by P.W.11 and certified that the deceased was in a fit state of mind, has not been examined. Nextly, the deceased was admitted in the hospital on 21.05.2008.  Certainly intimation would have been sent to the police.  But still, complaint was recorded by the police from the deceased only on 27.05.2008.   Absolutely, there is no explanation offered by the prosecution as to why the Police did not choose to obtain a complaint either from the deceased or from some one to register the case as soon as the intimation from the hospital. P.W.8, simply told that on the directions of the Inspector on 27.05.2008, she went to the hospital and recorded Ex.P8.  Who was that Inspector who gave direction to P.W.8 and how he came to know that the deceased was undergoing treatment in the hospital are all matters, which have not been explained by the prosecution.  The said Inspector has also not been examined. The case sheet pertaining to the deceased also has not been produced in evidence.  P.W.9 - Dr. Geetha has stated that subsequent to the recording of the Ex.P15 dying declaration by the Magistrate,  the deceased started saying that she wanted to give yet another dying declaration.  Had it been true, the same would have been recorded in the case sheet.  The case sheet is a primary evidence.  The said case sheet of the deceased maintained in Karur Government Hospital also has not been marked in evidence.  Regarding the death of the deceased, we do not have any medical record relating to the time of death, as the death intimation sent to the police has not been marked.  Above all, P.W.8 has not deposed anything about the alteration of the First Information Report. Admittedly, the case was registered on 27.05.2008 by P.W.8 under Section 498(A) IPC.  As per Ex.P16, one Sub Inspector of Police, altered the case into one under Section 174 Cr.P.C.  P.W.8 has not stated that she was the one who altered the case.  If that be so, who was the Sub Inspector of Police, who altered the case and submitted Ex.P16 is not known.

        28. To repeat, P.W.8 has not stated anything about Ex.P16.  Ex.P17 is another alteration report, by which, the case was altered into one under Section 302 IPC.  This has been done by the Deputy Superintendent of Police on 04.06.2008.  The Revenue Divisional Officer, (P.W.10) has concluded in the inquest report (Ex.P14) that the deceased died of accident.  During inquest, the father, mother and other family members of the deceased were also examined by P.W.10.  If really, the deceased was conscious, quite naturally, she would have told her parents that she was set fire by her husband.  If that be so, during the inquest, they would have told P.W.8 about the statement made by the deceased, in which case, the conclusion in the inquest report would not have been to the effect that the deceased died due to accidental fire.  All these would go to show that the prosecution has not projected the case properly before the trial Court by letting in proper evidence.  At any rate, we have no doubt in our mind that the prosecution has not proved the case beyond reasonable doubts and thus the conviction cannot be sustained.

        29. In the result, the appeal is allowed;  the conviction and sentence imposed by the learned Sessions Judge, Karur Division made in S.C.No.94/2009, is set aside and the appellant is acquitted of the charge. Fine amount, if any, paid shall be refunded to the accused. The appellant is directed to be released forthwith, if his detention is not required in any other case.

RR

To

1. The District and Sessions Judge,
    Karur District,

2.The Public Prosecutor,
   Madurai Bench of Madras High Court,
   Madurai.