Madras High Court
Balu vs The State on 2 September, 2015
Author: A.Selvam
Bench: A.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.09.2015 CORAM: THE HONOURABLE MR.JUSTICE A.SELVAM Criminal Appeal No.20 of 2007 and M.P.No.1 of 2007 --- Balu ... Appellant vs. The State Rep. by the Inspector of Police, Vaduvoor Police Station, Tiruvarur District, (Crime No.270 of 2004) ... Respondent Criminal Appeal filed under Section 374(2) of Cr.P.C., against the judgment and conviction made in Sessions Case No.120 of 2005 dated 09.11.2006 on the file of the Assistant Sessions Judge, Mannargudi, Tiruvarur District. For appellant : Mr.D.Veerasekaran For Respondent : Mr.P.Govindarajan, Additional Public Prosecutor. JUDGMENT
The convictions and sentences dated 09.11.2006 passed, in Sessions Case No.120 of 2005, by the Assistant Sessions Judge, Mannargudi, are being challenged in the present Criminal Appeal.
2. The case of the prosecution is that the accused is the husband of the deceased, by name, Abirami. On 10.11.2004, at about 6.00 a.m., infront of the house of the deceased and accused, a tussle has arisen in between them with regard to pledging of jewels belonging to the deceased and due to that, the deceased has doused kerosene and set fire on her and immediately, after occurrence, she has been admitted in hospital and subsequently, on 16.11.2004, at about 1.00 a.m., she passed away in Medical College Hospital, Tanjavur. The deceased, after admitting her in the hospital, has given a statement and the same has been initially registered in C.S.R.No.288 of 2004 and after her demise, the statement alleged to have been given by the deceased has been registered in Crime No.270/04, under Section 174 of the Code of Criminal Procedure, 1973. The statement alleged to have been given by the deceased has been marked as Ex.P8.
3. On receipt of Ex.P8, the investigating officer, viz., P.W.18, has taken up investigation, examined connected witnesses and also made arrangement for conducting autopsy on the body of the deceased and accordingly Dr.Sugumar (P.W.16) has conducted autopsy and he found the following external and internal injuries:
@External Injuries:-
I.Infected dermo epidermal burn seen over:-
a.Whole of face and neck - 6% b.Whole of right upper limb - 9% c.Whole of left arm and forearm and patobea over left hand-8% d.Whole of front of chest - 9% e.Whole of upper 1/3rd of front of abdomen - 3% f.Whole of back of chest and abdomen - 18% g.Whole of right lower limb - 18% h.Whole of back of left leg and patches over dorsum of left foot and front of left knee - 5% Total burn amounting to - 76% Reddening infection in the form of yellowish green thin pus in patches and peripheral healing and few blebs noted all over the burnt area.
Singeing of scalp hair near the face margin and right axillary hair.
Extremities - cyanosed Heart : Normal in size. All Chambers contain fluid blood.
Valves : Normal. Coronary Vessels - patent great Vessels - Normal.
Lungs : both on cut section congested and edematous.
Larynx : Mucosa congested hyoid bone intact.
Stomach : contained 200 ml of light brown
coloured fluid mucosa congested.
Liver, spleen, kidneys : c/s congested
Small
intestine : empty, mucosa congested.
Uterus : 4X3X2 cm in size cavity empty. pelvis -
intact.
Bones and
membrane : intact.
Brain : Surface vessels congested
edema present. c/s normal.
4. The Post-mortem report has been marked as Ex.P10. After completing investigation, P.W.18 has laid a final report on the file of the Judicial Magistrate Court No.II, Mannargudi and the same has been taken on file in P.R.C.No.17 of 2005.
5. The Judicial Magistrate, Mannargudi, after considering the facts that the offences alleged to have been committed by the accused are triable by Sessions Court, has committed the case to the Court of Sessions, Thiruvarur Division and the same has been taken on file in Sessions Case No.120 of 2005 and subsequently, transferred to the file of the trial Court.
6. The trial Court, after hearing both sides and upon perusing the relevant records, has framed first charge against the accused under Section 306 of the Indian Penal Code; second charge against him under Section 406 of the Indian Penal Code and the same have been read over and explained to him. The accused has denied the charges and claimed to be tried.
7. On the side of the prosecution, P.Ws.1 to 18 have been examined and Exs.P1 to P15 have been marked.
8. When the accused has been questioned under Section 313 of the Criminal Procedure Code, as respects the incriminating materials available in evidence against him, he denied his complicity in the crime. On the side of the accused, D.Ws.1 to 3 have been examined and Ex.D1 has been marked.
9. The trial Court, after hearing arguments of both sides and also upon perusing the relevant evidence available on record, has found the accused guilty under Section 406 of the Indian Penal Code and sentenced him to undergo three years Rigorous Imprisonment and also imposed a fine of Rs.1000/- with usual default clause. He has also been found guilty under Section 306 of the Indian Penal Code and sentenced to undergo 10 years Rigorous Imprisonment and also imposed a fine of Rs.5000/- with usual default clause. Against the convictions and sentences passed by the trial Court, the present criminal appeal has been preferred, at the instance of the accused, as appellant.
10. The learned counsel appearing for the appellant/accused has contended that on the date of occurrence, a miff has arisen in between the accused and deceased with regard to pledging of jewels and all of a sudden, the deceased herself has doused kerosene on her person and subsequently, set fire on her and even though the present case has been initiated on the basis of the statement alleged to have been given by the deceased, no incriminating materials are available against the accused so as to attract the penal provisions of Sections 306 and 406 of the Indian Penal Code and the trial Court, without considering lack of ingredients of the said Sections, has erroneously invited convictions and sentences against the appellant/accused and therefore, the convictions and sentences passed by the trial Court are liable to be interfered with.
11. Per contra, the learned Additional Public Prosecutor has also equally contended that the prosecution has set the law in motion only on the basis of statement alleged to have been given by the deceased and apart from the statement given by her, two dying declarations are available, wherein it has been clearly stated about the alleged overt acts of the accused and since, the deceased herself has given a statement and also two dying declarations, as per Section 32(1) of the Indian Evidence Act, 1872, no corroboration is required and the trial Court, after considering the evidentiary value of the statement alleged to have been given by the deceased as well as dying declarations, has rightly invited convictions and sentences against the appellant/accused and the same do not warrant interference.
12. On the basis of divergent submissions made on either side, the Court has to analyse as to whether sufficient materials are available so as to attract the penal provisions of Sections 306 and 406 of the Indian Penal Code?
13. In fact, this Court has perused the statement alleged to have been given by the deceased and also dying declarations, wherein, it has been simply stated that on the date of occurrence, a miff has arisen in between the accused and the deceased with regard to pledging of jewels and immediately, the deceased herself has doused kerosene and set fire on her. Therefore, it is needless to say that necessary ingredients are not available so as to attract the penal provisions of Section 306 of the Indian Penal Code. In fact, the deceased herself has doused kerosene and set fire on her. Before the said act, a miff has arisen in between the accused and deceased and that itself would not pave the way for committing suicide.
14. The learned Additional Public Prosecutor has contended that the accused has pledged eight sovereigns of gold jewels belonging to the deceased and subsequently, he failed to return the same and therefore, the act of the accused would come within the purview of Section 406 of the Indian Penal Code.
15. A mere reading of Section 405 of the Indian Penal Code would clearly show that there must be a dishonest intention so as to commit misappropriation. In the instant case, both the accused and the deceased have been blessed with three children. Of course, it is true that the jewels pledged by the accused belonging to the deceased. Simply because, the accused has pledged the jewels belonging to the deceased, the Court cannot come to a conclusion that the accused, with mala fide intention, has pledged the same and therefore, the essential ingredients of Section 405 of the Indian Penal Code are lacking in the present case.
16. It has already been pointed out that a mere casual remarks alleged to have been made by the accused would not be sufficient so as to drive the deceased to douse kerosene on her person and subsequently, set fire on her. Under the said circumstances, this Court is of the considered view that essential ingredients of both the Sections are completely lacking on the side of the prosecution.
17. The trial Court, without considering the role alleged to have been played by the accused and also without considering that the accused has simply mortgaged the jewels so as to run family, has erroneously found him guilty under Sections 306 and 406 of the Indian Penal Code. In view of the discussion made earlier, this Court is of the view that the conclusions arrived at by the trial Court are totally erroneous and therefore, the present criminal appeal is liable to be allowed.
In fine, this Criminal Appeal is allowed. The convictions and sentences passed by the trial court in Sessions Case No.120 of 2005 are set aside and the appellant/accused is acquitted and bail bonds if any executed by him shall stand cancelled and the fine amounts paid by him are ordered to be refunded forthwith. Connected miscellaneous petition is closed.
02.09.2015 msk Internet:Yes/No Index:Yes/No To :
1.The the Inspector of Police, Vaduvoor Police Station, Tiruvarur District.
2.The Assistant Sessions Judge, Mannargudi, Tiruvarur District.
3.The Public Prosecutor, High Court, Madras A.SELVAM, J.
msk Crl.A.No.20 of 2007 02.09.2015