Madras High Court
Suresh vs State Represented By on 2 September, 2021
Author: P.N.Prakash
Bench: P.N.Prakash, R.Pongiappan
Crl.A.No.32 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 28.07.2021
PRONOUNCED ON : 02.09.2021
Coram
The Honourable Mr. Justice P.N.PRAKASH
and
The Honourable Mr. Justice R.PONGIAPPAN
Crl.A.No.32 of 2018
Suresh
S/o.Arumugham .. Appellant/Accused
Vs.
State represented by
The Inspector of Police,
Namagiripet Police Station,
Namakkal District. .. Respondent/Complainant
Criminal Appeal filed under Section 374(2) Cr.P.C. against the
judgment and order dated 25.10.2016 passed in S.C.No.19 of 2013 on the
file of the Principal Sessions Court, Namakkal and set aside the same.
For Appellant : Mr.A.M.Rahmath Ali
for Mr.T.Muruganantham
For Respondent : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
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Crl.A.No.32 of 2018
JUDGMENT
P.N.PRAKASH, J.
This criminal appeal has been filed against the judgment and order dated 25.10.2016 passed in S.C.No.19 of 2013 on the file of the Principal Sessions Court, Namakkal and set aside the same.
2. The prosecution story runs thus:
2.1 The deceased Sarasu was married to Palanivel (PW1) and they were living in a rented house in Gopalapuram in Rasipuram Taluk. Marayee (PW2), mother-in-law of Sarasu, also lived with them. All the three were daily wage earners and Sarasu was working as a domestic help in the house of one Nagamanickam Chettiyar.
2.2 It appears that the appellant, who was also from the same village, was stalking Sarasu for courtship, but, she firmly spurned his vibes and the same was irritating the appellant.
Page 2 of 16 http://www.judis.nic.in Crl.A.No.32 of 2018 2.3 On 08.06.2012, around 3.00 p.m., when Sarasu returned to her house after work, the appellant also slyly entered into her house, locked the door from inside, fell upon her with the idea of ravishing her and when she resisted, he is said to have poured kerosene on her and set fire to her. Unfortunately for the appellant, he also suffered some burn injuries, but, nevertheless, he scaled the compound wall of the house and fled. Hearing the hue and cry of Sarasu, her mother-in-law Marayee (PW2) and a neighbour Chinnaponnu (PW3) rushed to the place of occurrence and they were soon accompanied by Palanivel (PW1).
2.4 Palanivel (PW1) took Sarasu by a 108 ambulance to the Government Hospital, Rasipuram, where, she was examined by Dr.Sangeetha (PW12) at 4.15 p.m. and thereafter, Sarasu was referred to the Government Mohan Kumaramangalam Medical College Hospital (for brevity “GMKMC”), Salem, for admission in the Burns Ward. Unfortunately, Sarasu succumbed to the burn injuries on the same day at 7.15 p.m. in GMKMC.
Page 3 of 16 http://www.judis.nic.in Crl.A.No.32 of 2018 2.5 On a complaint given by Palanivel (PW1), Ponnusamy (PW14), Special Sub-Inspector of Police, registered a case in Namagiripet Police Station Crime No.446 of 2012 at 9.00 p.m. on 08.06.2012 for the offence under Section 302 IPC against the appellant and prepared the printed FIR (Ex-P12), which reached the jurisdictional Magistrate at 8.00 a.m. on the next day, as could be seen from the endorsement thereon.
2.6 Investigation of the case was taken over by Selvam (PW15), Inspector of Police, who went to the place of occurrence and prepared the Observation Mahazar (Ex-P6) and Rough Sketch (Ex-P14) in the presence of witnesses Jothilingam (not examined) and Manickam (PW8).
2.7 From the place of occurrence, the Investigating Officer seized the following items under the cover of a Seizure Mahazar (Ex-P7):
(1) Kerosene can ... M.O.1
(2) Cigarette packet ... M.O.2
(3) One pair of Chappal ... M.O.3
(4) Match Box ... M.O.4
(5) Half burnt woollen bedsheet ... M.O.5
(6) Burned inskirt ... M.O.6
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Crl.A.No.32 of 2018
2.8 The appellant got himself admitted in the Government Hospital,
Rasipuram, at 7.10 p.m. on 08.06.2012, for the burn injuries suffered by him, where, he was examined by Dr.R.Sangeetha (PW12).
2.9 The Investigating Officer conducted inquest over the body of Sarasu and the inquest report was marked as Ex-P16. Thereafter, the body of Sarasu was sent for postmortem.
2.10 Dr.Panneerselvam (PW7) performed autopsy on the body of Sarasu and issued the Postmortem Certificate (Ex-P3). He sent samples of the visceral organs to the Regional Forensic Science Laboratory for examination and the viscera report (Ex-P4) disclosed that poison was not detected in any of the visceral organs. Thereafter, Dr.Panneerselvam (PW7) gave his Final Opinion (Ex-P5), wherein, he has stated as follows:
“I am furnishing my final opinion as to the cause of death of the deceased referred to above based on the chemical examiner's report.
Final Opinion: The deceased would appear to have died of Effects of Burns.” Page 5 of 16 http://www.judis.nic.in Crl.A.No.32 of 2018 2.11 The Investigating Officer arrested the appellant on 11.06.2012 at 12.30 noon and based on the disclosure of the appellant, he recovered the following items under a Seizure Mahazar (Ex-P9) in the presence of witnesses Jothilingam (not examined) and Manickam (PW8):
1. Half burnt money purse with an identity card... M.O.7
2. Grey colour pant with burnt marks in right side waist and thigh portions ... M.O.8
3. White striped shirt with burnt marks ... M.O.9 2.12 After examining witnesses and collecting the various reports, the Investigating Officer completed the investigation and filed a final report in P.R.C.No.37 of 2012 before the Judicial Magistrate, Rasipuram, for the offences under Sections 448 and 302 IPC, against the appellant.
2.13 On appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session, Namakkal, in S.C. No.19 of 2013 for trial.Page 6 of 16
http://www.judis.nic.in Crl.A.No.32 of 2018 2.14 The trial Court framed the aforesaid charges against the appellant and when questioned, he pleaded “not guilty”.
2.15 To prove the prosecution case, the police examined fifteen witnesses and marked eighteen exhibits and ten materials objects.
2.16 When the appellant was questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him, he denied the same, but, gave a written statement to explain certain circumstances, which will be dealt with at the appropriate stage. From the side of the appellant, no witness was examined nor any document marked.
2.17 After considering the evidence on record and hearing either side, the trial Court, by judgment and order dated 25.10.2016 in S.C.No.19 of 2013, has convicted and sentenced the appellant as follows:
Provision under Sentence which convicted One year simple imprisonment and fine of Section 448 IPC Rs.1,000/-, in default to undergo one simple imprisonment.Page 7 of 16
http://www.judis.nic.in Crl.A.No.32 of 2018 Provision under Sentence which convicted Rigorous imprisonment for life and fine of Section 302 IPC Rs.5,000/-, in default to undergo one year simple imprisonment.
The aforesaid sentences were ordered to run concurrently.
2.18 Challenging the above conviction and sentences, the appellant has preferred the present appeal.
3. Heard Mr.A.M.Rahmath Ali, learned representing counsel for Mr.T.Muruganantham, learned counsel on record for the appellant and Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor appearing for the respondent/State.
4. The case of the prosecution rests on the oral dying declaration that was given by Sarasu to her husband Palanivel (PW1) and Marayee (PW2), while she was being taken to the hospital and also on the evidence of Marayee (PW2) and Chinnaponnu (PW3), who saw the appellant scaling the compound wall of the house and fleeing, while Sarasu was in flames.Page 8 of 16
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5. Palanivel (PW1), in his evidence, has stated that his wife Sarasu was complaining to him that the appellant was stalking her for sexual favours and was frequently bothering her; on the day of occurrence, he was working on a machine near a bus stand; in the afternoon, some people told him that smoke was emanating from his house and so, when he rushed to his house, he saw his wife in flames and burns; by then, ambulance also had come; his mother Marayee (PW2) and neighbour Chinnaponnu (PW3) were also present in the house; at that time, his wife told him that the appellant poured kerosene on her and set fire to her; they rushed her to the Government Hospital, Rasipuram, and since her condition was serious, she was referred to GMKMC, Salem, where, she died around 7.15 p.m; thereafter, he went to the police station and lodged the complaint (Ex-P1).
6. In the cross-examination, Palanivel (PW1) further elaborated that his wife Sarasu told him that the appellant pushed himself on her and when she resisted, he poured kerosene on her and set fire to her. However, he admitted that he is an unlettered person and he was not the scribe of the complaint (Ex-P1).
7. Marayee (PW2) and Chinnaponnu (PW3), in their evidence, Page 9 of 16 http://www.judis.nic.in Crl.A.No.32 of 2018 have stated that on the day of occurrence, they heard Sarasu hollering and when they went near the house, they saw the appellant jumping over the wall and running away.
8. Marayee (PW2), in her evidence, has clearly stated that in the place of occurrence, she saw a can of kerosene (M.O.1), a cigarette packet (M.O.2), a pair of slippers (M.O.3) and a burnt bedsheet (M.O.5).
9. Chinnaponnu (PW3), in her cross-examination, has further stated that she saw flames in the hand of the appellant, while he was fleeing.
10. The evidences of these witnesses clearly show that the appellant had also suffered burn injuries.
11. The learned counsel for the appellant submitted that Sarasu would not have been in a position to even speak as she was found to be with 96% burn injuries as per Accident Register (Ex-P10) and therefore, the statement of Palanivel (PW1) and Marayee (PW2) that Sarasu told them Page 10 of 16 http://www.judis.nic.in Crl.A.No.32 of 2018 that the appellant had set fire to her is unbelievable.
12. We are not able to appreciate the above submission made by the learned counsel for the appellant, because, it is clear from the evidence of Dr.Sangeetha (PW12) that Sarasu was brought with burn injuries by Palanivel (PW1) and when enquired, Sarasu told her that a known person had set fire to her in her house around 3.00 p.m. and that Sarasu was conscious and oriented. This has been entered in the Accident Register (Ex- P10).
13. The learned counsel for the appellant further submitted that had the condition of Sarasu been very serious, steps would have been taken by the hospital to have her dying declaration recorded.
14. This argument also deserves to be rejected, because, Dr.Sangeetha (PW12), who first examined Sarasu in the Government Hospital, Rasipuram, at 4.15 p.m. on 08.06.2012, made necessary entries in the Accident Register (Ex-P10) and immediately referred her to GMKMC, Page 11 of 16 http://www.judis.nic.in Crl.A.No.32 of 2018 Salem, for further treatment. It is common knowledge that GMKMC, Salem, has the state-of-the-art facilities for managing such burn injury cases unlike the Government Hospital, Rasipuram. Therefore, Dr.Sangeetha (PW12) would have been more keen to save the life of Sarasu than take steps for recording her dying declaration. After Sarasu was taken to GMKMC, Salem, she died by 7.15 p.m.
15. The most incriminating circumstance against the appellant is the fact that he himself got admitted for the burn injuries suffered by him in the Government Hospital, Rasipuram at 7.10 p.m. on 08.06.2012. He was examined by Dr.Sangeetha (PW12), who, in her evidence, has stated that the appellant was brought by his wife Vijayalakshmi and when enquired, the appellant said that he suffered burn injuries, “while saving a burning female”. The appellant was found with the following injuries:
External Injuries:
1. Burnt injury on right arm, right forearm and right hand ..6 %
2. Burnt injury on the right thigh
3. Burnt injury on the front and back side of the right side of the abdomen ..1%
4. Blisters all over the right limb present
16. In his written statement given under Section 313 Cr.P.C., the Page 12 of 16 http://www.judis.nic.in Crl.A.No.32 of 2018 appellant has stated that while he was returning from work, he saw smoke coming out from a house; he went inside the house and saw Sarasu in flames; he tried to douse the flames and in that process, he also suffered burn injuries; thereafter, he went to the police station to give a complaint, but, the police detained him, had him admitted in the Government Hospital, Rasipuram, and thereafter foisted a case on him.
17. This is evidently a false explanation. Had the appellant gone to rescue Sarasu, he would have taken steps to have her admitted in the hospital. It is not known as to why he went to the police station to lodge a complaint.
18. That apart, we have no reason to disbelieve Dr.Sangeetha (PW12), who has stated that one Suresh (appellant) was brought for treatment by his wife Vijayalakshmi. It was not suggested to Dr.Sangeetha (PW12) that it was the police, who had brought the appellant for treatment and not his wife Vijayalakshmi.
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19. The appellant has given a false explanation to Dr.Sangeetha (PW12) that he sustained burn injuries when he went to rescue a lady. We are saying so, because, the appellant would not have scaled the compound wall and fled, had he really gone into the house of Sarasu to save her.
20. Marayee (PW2) and Chinnaponnu (PW3) have clearly stated that they saw flames in the hand of the appellant, while he was fleeing. Had the appellant got himself admitted along with Sarasu in the Government Hospital, Rasipuram, then, to some extent we can believe his story. On the contrary, Sarasu was examined by Dr.Sangeetha (PW12) at 4.15 p.m. on 08.06.2012, whereas, the appellant was examined by Dr.Sangeetha (PW12) at 7.10 p.m. on 08.06.2012.
21. The burn injuries that were found on the body of the appellant vide Ex-P11 tally with the burnt marks found in the apparel of the appellant viz., his pant (M.O.8) and shirt (M.O.9).
22. In Mani Kumar Thapa Vs. State of Sikkim1 and Anthony 1 (2002) 7 SCC 157 Page 14 of 16 http://www.judis.nic.in Crl.A.No.32 of 2018 D'Souza and Others Vs. State of Karnataka2, the Supreme Court has clearly stated that a false explanation given by an accused when he was examined under Section 313 Cr.P.C., is a powerful circumstance against him and will provide the missing link.
23. To cap it all, the appellant has not suggested any motive to Palanivel (PW1) for falsely implicating him in the case.
In view of the foregoing discussion, we find no merit in this criminal appeal warranting interference and consequently, this criminal appeal stands dismissed.
(P.N.P.,J.) (R.P.A.,J.) 02.09.2021 Index: Yes/No nsd P.N.PRAKASH,J.
2 (2003) 1 SCC 259 Page 15 of 16 http://www.judis.nic.in Crl.A.No.32 of 2018 and R.PONGIAPPAN,J.
nsd To
1.The Principal Sessions Court, Namakkal.
2.The Inspector of Police, Namagiripet Police Station, Namakkal District.
3.The Public Prosecutor, Madras High Court, Chennai – 600 104.
Crl.A.No.32 of 2018
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