Saturday, June 1, 2013

wife dead, still dying declation can be rejected if tutored by relatives. Another Madras HC Gem


Notes
  • Unfortunate wife suffers 80% burn injuries
  • She is rushed to one hospital
  • then asked to go to another hospital and so on
  • at the earliest point of time when rushed to the first hospital she says (as per PW ) that her sari fell on the stove while cooking
  • later she changes her declarations
  • she says her husband poured kerosine on her and set her ablaze
  • she expires due to burn injuries
  • husband and family survive because the court rejects the woman's dying declaration



Other thoughts
  • the dead woman's mother accepts that her daughter was tutored by relatives !!
  • long live justice





BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED:19/11/2012

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

Crl.A(MD).No.599 of 2005

Kangani                ... Appellant

Vs

The State
rep.by the Sub-Inspector of Police,
Thathiyangarpettai Police Station,
Trichy District.            ... Respondent


    This Criminal Appeal has been filed under Section 374(2) of the Criminal Procedure Code against the judgment of conviction and sentence imposed by the Additional Sessions Judge, Mahila Court, Trichy, dated 22.09.2005, in S.C.No.117 of 2004.


!For appellant ... Mr.N.Anandakumar
^For Respondent... Mr.A.Ramar
           Addl.Public Prosecutor
                    *******
:JUDGMENT

(Judgment of the Court was delivered by M.JAICHANDREN,J)

This Criminal Appeal has been preferred against the judgment, dated 22.09.2005, made in S.C.No.117 of 2004, on the file of Additional sessions Judge, Mahila Court, Tiruchirapalli, convicting the appellant, under Section 302 I.P.C., and sentencing him to undergo life imprisonment and to pay a fine of Rupees 1000/-, in default to undergo rigorous imprisonment for three months.

    2.    The brief facts of the case are as follows:-

    2.1.    The appellant, who is the first accused, in S.C.No.117 of 2004, had married the deceased, Vanaja, on 24.02.2002, at Uthandampatti Perumal Temple. At the time of the marriage, certain items like cot, bed and jewels, along with a sum of rupees 3,000/-, had been given to the appellant.  After the said marriage, the appellant had been torturing the deceased, Vanaja, asking her to bring the money, which was lying in her bank account. However, the deceased had not brought the money. Therefore, at about 6.00 a.m, on 22.02.2003, when the deceased was sprinkling cowdung water in the cattle shed, the appellant had shouted at the deceased stating that she had not changed her ways, inspite of the advice given to her and that she was not fit to be his wife. While making the said statement, the first accused, the appellant in the present criminal appeal, had poured a bottle of kerosene on the deceased, Vanaja, and had set her on fire, with the intention of killing her. The second accused, namely, Navamani, the mother of the first accused, had also been charged, under Section 302 I.P.C., read with Section 34 I.P.C, for having been watching the acts of the first accused, without preventing him from acting in such a manner.

2.2. In order to prove the charges, seventeen witnesses had been examined on the side of the prosecution and nineteen documents had been marked, as exhibits. Eight material objects had also been marked.  However, no witness had been examined and no document had been marked on behalf of the accused.

    2.3. P.W.1, namely, Krishnaveni, the mother of the deceased, Vanaja, had stated, during her chief examination, that the deceased was her elder daughter. The marriage between her daughter, Vanaja, and Kangani had taken place, on 24.02.2002.  At the time of the said marriage, a gold chain made of two sovereigns, a gold ring made of one sovereign, a ear stud and a nose stud had been given to the family of the bridegroom, along with certain other items of daily use, as dowry. The value of the said items would be about rupees 30,000/-. For about six months after the marriage, the family members of the first accused, namely, Kangani, had taken good care of her daughter, Vanaja. Thereafter, the members of the family of the first accused had been compelling Vanaja to bring more money, as dowry and therefore, there were misunderstandings between the two families.    While so, on 22.02.2003, she had been informed, through telephone, that her daughter, Vanaja, had immolated herself.  However, she did not know as to who had given her the said information. Thereafter, she had proceeded to the Thuraiyur Government Hospital, to see her daughter, along with the other family members.

    2.4. P.W.1 had further stated that on reaching the hospital, she had noticed that her daughter had suffered burn injuries.  Thereafter, her daughter, Vanaja, had been shifted to the Tiruchirapalli Government Hospital, where she was enquired by the police and a statement had been obtained from her. The statement made by Vanaja, to the police, had been reduced into writing, and it had been signed by her. The said Vanaja had also affixed her thumb impression, acknowledging the statement made by her, and it had been marked as Ex.P.1. Thereafter, the police had also made certain enquires with her.  However, during the cross-examination, she had stated that she had visited the Thraiyur Government Hospital, to see her daughter, at about 9.00 a.m. She had gone to the hospital, along with her husband and her relatives. Her son-in-law, the appellant, and the other accused persons were also present in the hospital. When she had asked her daughter, as to how she had suffered the burn injuries, she could not reply. P.W.1 had further stated that she had made the statements to the police, as she had been told to do so, by her relatives. She had also stated that her daughter, Vanaja, had told her that she had made her statements, as instructed by her relatives. The relatives had also told her daughter that if she makes a statement saying that she had suffered the burn injuries due to an accidental fire, she would not be taken care of by her husband, properly. Therefore, she had made a statement to the police, as instructed by her relatives. P.W.1 had further stated that when her daughter, Vanaja, was enquired by the police, the duty Doctor was also present. She had further stated that the statements made by Vanaja, before the police, had also been signed by the duty doctor. She had further stated that she had made similar statements before the police, who had come to the Tiruchirapalli Government Hospital, after 1.00 p.m, on 22.02.2003. However, the police had not visited the Thuraiyur Government Hospital.

    2.5. P.W.2, Sathya, had stated in her deposition that  the deceased, Vanaja, was her brother's daughter. She had stated that the marriage between the deceased and the appellant had taken place, on 24.02.2002. she had stated that she had been informed that the deceased, Vanaja, had set herself on fire. Therefore, she, along with her family members, had gone to the Thuraiyur Police Station.  She had further stated that the deceased, Vanaja, had given statements before the police, as well as the Magistrate concerned.  However, during her cross- examination, she had stated that she was not present at the time when Vanaja had given her statements to the police and the magistrate. She had further stated that, when an enquiry was being made with the deceased, she was standing outside the room and therefore, she did not know the statements made by the deceased.

    2.6. P.W.3, Sambamoorthy, who is the Village Administrative Officer of Vadamalaipatti Village, at the time of the occurrence, had stated in his evidence that he had come to know that one Vanaja, wife of Kangani, had been admitted in the Thuraiyur government hospital, due to a fire accident. He had further stated that, when he was at the place of occurrence, on 22.02.2003, the Inspector of Police of Thathaiyangar Petai Police Station had visited the place, at night, at about 12.15 a.m., and had prepared the observation mahazar, which had been marked as Ex.P.2. He had signed the said mahazar, along with his assistant, Jaganathan. On 23.02.2003, at 9.15 a.m., he had signed the mahazar containing the recovery of the material objects, along with his village assistant Jaganathan.

    2.7. Venkatesh, who had been examined as P.W.4, had stated, in his deposition, that he was on duty, on 22.02.2003, at 8.30 a.m., and at that time, one Vanaja had been brought to the hospital, for treatment, with burn injuries. She had stated that she had suffered the burn injuries, at 6.00 a.m., as her saree had caught fire, as it has fallen on the stove.  He had also stated that she was in a conscious state of mind, even though she had suffered about 80% burn injures. He had also stated that the said Vanja had been referred to the Tiruchirapalli Government Hospital. The copy of the accident register had been marked as Ex.P.4. The information given to the Thuraiyur Police Station, by way of a letter, had been marked as Ex.P.5.

    2.8. P.W.5, Dr.Renuka Devi, had submitted the autopsy report, marked as Ex.P-7, wherein, it had been stated that the deceased, Vanaja, had died due to the burn wounds and its complications. P.Ws.6 to 10 are official witnesses. P.W.12, was the Judicial Magistrate No.2, Tiruchirapalli, who had recorded the dying declaration of the deceased, marked as Ex.P-14. Dr.P.Prabaharan, who had been examined as P.W.13, had certified that the deceased, Vanaja, was in conscious and fit state of mind to make her statements, when she had made the statements to the Judicial Magistrate concerned. P.W.14, is the Sub Inspector of Police, Thathiengarpet Police Station, who had received the complaint from the deceased, Vanaja, and had registered the case in CrimeNo.76 of 2003, marked as Ex.P-1. He had also prepared the first information report, marked as Ex.P-17. Based on the first information report registered by P.W.14, the Inspector of Police, Chinnathambi, examined as P.W.15, had taken up the case for further investigation. The case registered by P.W.14 had been altered and a case had been registered under Section 498A, 304B and 302 I.P.C., on the death of the deceased at Tiruchirapalli government hospital. Thereafter, P.W.16 had taken up the matter for investigation. P.W.17, is the police officer who had continued the investigation after the transfer of P.W.16.

    2.9. When the incriminating evidence available on record had been put to the accused under Section 313 Cr.P.C, the accused had denied their involvement in the commission of the crime and they had pleaded that they were innocent. Based on the evidence available, the trial Court had convicted the accused, Kangani, the appellant in the present criminal appeal for the offence under Section 302 I.P.C., for causing the death of his wife, Vanaja.

    3. The main contention of the learned counsel appearing on behalf of the appellant is that the deceased, Vanaja, had given her statements to the police, when she had been admitted in the Tiruchirapalli government hospital, as tutored by her relatives. This is clear from the statements made by P.W.1, the mother of the deceased, Vanaja, during her cross examination. Therefore, the conviction of the appellant, by the trial Court, under Section 302 I.P.C, cannot be sustained, especially, when the dying declaration made by the deceased cannot be held to be valid in the eye of law, as it had not been corroborated by the other evidence available on record.


    4. The learned counsel had further contended that the deceased, Vanaja, had stated in her statement made before P.W.4, who is a Doctor, while she was in a conscious state of mind, that she had suffered the burn injuries as her saree had caught fire, accidentally, as it had fallen on the stove. The learned counsel had further submitted that the appellant had taken the deceased to the hospital, immediately, after the fire accident had occurred. Further, the prosecution had not examined the neighbours of the deceased, who had come to her rescue, on hearing her cries. As such, it is clear that the case of the prosecution had not been proved beyond reasonable doubt. Therefore, the conviction of the appellant, by the trial Court, by its judgment, dated 22.9.2005, made in S.C.No.117 of 2004, cannot be held to be valid in the eye of law and therefore, it is liable to be set aside.

    5. Per contra, the learned Additional Public Prosecutor, appearing on behalf of the respondent, had stated that it is clear from the dying declaration of the deceased, Vanaja, that her husband, namely, Kangani, the accused, had poured kerosene on the deceased and had set her on fire, at about 6.00 a.m, on 22.2.2003, causing the death of the deceased. He had further stated that, from Exhibits P-14 to P-16 it could be seen that the deceased, Vanaja, was in a fit, conscious and capable state of mind, while making a statement that her husband, Kangani, had set her on fire, by pouring a bottle of kerosene on her, when her mother-in-law was sweeping in front of the house. She had further stated that her husband had left the scene of occurrence after setting her on fire. She had also stated that she had raised an alarm on being set on fire by her husband, the appellant in the present criminal appeal. On hearing the alarm raised by the deceased, Nagarajan, the elder brother of Kangani and certain others, who were present near the scene of occurrence, had come to the place of occurrence and had doused the fire by pouring water on the deceased. Thereafter, her husband, Kangani, his sister and sister-in-law, had taken the deceased to the hospital. It is clear from Ex.P-7, the post mortem report, that the deceased had died of the burn wounds and its complications. It is also clear from the dying declaration made by the deceased, marked as Ex.P-14, that it is her husband, namely, Kangani, the accused in the criminal case, who had set her on fire, by pouring a bottle of kerosene on her. As such, the contentions raised on behalf of the appellant that the deceased had not died due to the burn injuries caused by the appellant cannot be countenanced. In such circumstances, the accused, Kangani, the appellant/accused herein, had poured a bottle of kerosene on the deceased, on 22.02.2003 and set her on fire, with a clear intention of committing murder. As such, the judgment of the trial Court, dated 22.09.2005, convicting and sentencing the accused, under Section 302 I.P.C., is valid and sustainable in the eye of law.  Therefore, the present criminal appeal is liable to be dismissed.

    6. In view of the rival contentions raised on behalf of the appellant, as well as the respondent, and on a perusal of the records available, it could be noted that the deceased, Vanaja, had died, on 24.02.2003, due to  burn injuries. In this case, there is no eye witness to the occurrence. The prosecution relies only on the dying declarations made by the deceased, on three different occasions. The alleged occurrence, in the present case, is said to have taken place at 6.00 a.m., on 22.2.2003. Immediately, after the occurrence, the accused had taken the deceased to the hospital for treatment. P.W.4, Dr.Venkatesh, had attended to the deceased, at 8.30 a.m. At that time, the deceased was conscious. She had told P.W.4 that, while she was cooking, her saree had come into contact with the flame in the stove and thus, she had sustained the burn injuries. This is the first dying declaration made by the deceased. It is the case of the prosecution that this dying declaration cannot be believed as the deceased had made the statement when the accused was by the side of the deceased.

    7. It is further noted that, on intimation from the hospital, P.W.14, the then Sub Inspector of Police, attached to Thathiengarpet Police Station, went to the Thuraiyur government hospital and on receipt of the information that she had been shifted to Tiruchy government hospital, he had  gone  there and recorded the statement of the deceased, under Ex.P-1. The statement of the deceased had been recorded, at 6.00 p.m., on 22.2.2003. At that time, the mother of the deceased was by her side.  In the said dying declaration she has stated that the accused had set fire to her, out of anger. It is the contention of the learned counsel for the accused that this dying declaration cannot be given any weightage for the reason that the P.W.1, the mother of the deceased, had stated that the deceased had told her that she had given the statement implicating the accused, as tutored by her relatives.

    8. The next dying declaration is the one recorded by P.W.12, the then Judicial Magistrate No.II, Tiruchirapalli. He had recorded the dying declaration, at 1.45 p.m, on 22.2.2003, under Ex.P-14. Even  under  Ex.P-14 she has stated that it was the accused who had poured the kerosene and had set her on fire. It is the contention of the learned counsel for the appellant that even this dying declaration cannot be believed for the reason that the deceased had been tutored by her relatives to implicate the accused.

    9. It is well settled in law that when there are multiple dying declarations from the deceased, in general, the dying declaration which is found to be free from tutoring should be given weightage. If any of the dying declarations made by the deceased is surrounded by suspicion of tutoring, then the same needs to be rejected. In this case, when the deceased had been rushed to the hospital, at the earliest point time, she had stated that her saree had caught fire, accidentally, while cooking. This dying declaration, in our considered view, deserves acceptance. The contention of the learned Additional Public Prosecutor that the deceased had made such a dying declaration as  the accused was by the side of the deceased deserves to be rejected because of the reason that even in the other two subsequent dying declarations the deceased had not stated that she had made such a statement  in the earlier dying declaration that her saree had  fire, accidentally, while cooking, either because of the presence of  her husband or because she had been tutored by him. Further, P.W.1 has clearly stated, during the cross examination, that when she had gone to the hospital, she had found the accused by the side of the deceased and that he was grieving. She has further stated that when she had enquired with the deceased as to how she had sustained the injuries, she was not in a position to say anything. Later, she had told her that she had given the statement to the police, as instructed by her relatives. Thus, it could be noted that the subsequent dying declarations are not free from tutoring. Therefore, much weightage cannot be given to the subsequent dying declarations made to the police, as well as the Judicial Magistrate, as it cannot be safely held that they are free from tutoring. When these two dying declarations cannot believed, necessarily, weightage has to be given to the earliest dying declaration made to the Doctor, in which the deceased had stated that she had sustained the injuries, accidentally, while she was cooking. Thus, in our considered view, the prosecution has failed to prove that the accused had poured kerosene and had set fire to the deceased. Accordingly, we hold that the prosecution has failed to prove the charge against the accused beyond reasonable doubts.

    10. In the result, this criminal appeal is allowed. The conviction and sentence imposed on the appellant is set aside and he is acquitted of all the charges. The bail bond, if any, executed by him, shall stand cancelled and the fine amount, if any, paid by him, shall be repaid to him.

ssm/csh

To

(i) The Additional Sessions Judge, Trichy,

(ii)The Public Prosecutor,
    Madurai Bench of Madras High Court,
    Madurai.