Madras High Court
Nachayi vs State on 5 July, 2016
Author: V.Bharathidasan
Bench: V.Bharathidasan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 05.07.2016 CORAM: THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Crl.A.No.507 of 2015 1.Nachayi 2.Periyasamy 3.Amsavalli 4.Chinnapillai 5.Tamizhmani 6.Paramasivam ... Appellants vs. State,by The Section House Officer, Keelkuppam Police Station, (Crime No.179 of 2009) ... Respondent Criminal appeal preferred under Section 374(2) Cr.P.C., against the judgement dated 29.07.2015 passed by the learned III Additional District and Sessions Judge, Kallakurichy, in S.C.No.372 of 2010. For Appellant : Mr.A.G.Rajan For Respondent : Mr.M.Maharaja,Addl.P.P. JUDGMENT
(Judgement of the Court was delivered by V.Bharathidasan, J.) The appellants in this appeal are the accused 1 to 6 in Sessions Case No.372 of 2010, on the file of the learned III Additional District and Sessions Judge, Kallakurichy. The accused 2 and 4 charged for an offence under Section 302 of IPC, and the accused 1,3,5 and 6 charged for an offence under Section 302 r/w 34 of IPC. The trial Court by judgement dated 29.07.2015, convicted the accused 2 and 4 for the offence under Section 302 IPC, and sentenced them to undergo life imprisonment and also to pay a fine of Rs.3000/- each, in default, to undergo rigorous imprisonment for six months and convicted the accused 1,3,5 and 6 for the offence under Section 323 of IPC, and sentenced them to undergo one year rigorous imprisonment and also imposed a fine of Rs.1000/- each, in default, to undergo simple imprisonment for two months. Challenging the above said conviction and sentence, the appellants/accused are before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
(i) The deceased in this case one Susheela is the daughter in law of A-1. A-2 is son of A-1. A-3 is the wife of A-2. A-4 and A-5 are daughters of A-1 and A-6 is the husband of A-5. One Velmurugan is the husband of the deceased, earlier there was a quarrel between the deceased and Velmurugan, with A-1 and A-2. Hence, on 08.12.2009, the said Velmurugan consumed poison and died. At about 2.30 pm., the body of the Velmurugan was placed in the house and the deceased was sitting near to the dead body and crying. At the time, all the accused blamed the deceased for the death of said Velmurugan and all the accused dragged her inside the house, A-4 poured kerosene on her and A-2 set fire on her and she was taken to the Government Mohan Kumaramangalam Medical College Hospital, Salem.
(ii) P.W.13, the Sub Inspector of Police, working in the Keelkuppam Police Station, on receipt of the memo from the hospital, proceeded to the Hospital and recorded the statement of the deceased, and based on the statement, registered the case in Crime No.179 of 2009 for the offence under Sections 147, 341 and 307 of IPC against the accused and prepared FIR (Ex.P5), sent the same to the higher officials and also to the Judicial Magistrate Court.
(iii) P.W.17, the Inspector of Police, working in the Keelkuppam Police Station, on receipt of the FIR, commenced the investigation, visited the scene of occurrence, prepared Observation Mahazar Ex.P.P1, drew a Rough Sketch Ex.P10, and recovered M.O.1 stove, M.O.2 stove with wick, M.O.3 stove burner and M.O.4 match box in the presence of witnesses and examined the witnesses and recorded their statements. In the meantime, P.W.15, the learned Judicial Magistrate No.I, Salem, on receipt of the memo from the Hospital, went to the Hospital and after obtained certificate from the duty doctor that the deceased was conscious and in a fit state of mind in giving dying declaration, recorded the dying declaration of the deceased, where, the deceased told him that the above accused poured kerosene and set fire on her. Subsequently, on 16.12.2009, the deceased succumbed to injury. P.W.17, conducted inquest over the dead body in the presence of panchayatars and prepared Inquest Report Ex.P13 and sent the dead body for postmortem and altered the FIR into Sections 147, 341 and 302 IPC, altered FIR Ex.P12.
(iv) P.W.14, the Doctor, working in the Government Mohan Kumaramangam Medical College Hospital, Salem, conducted postmortem autopsy on the dead body of the deceased and found the following injuries. He issued Postmortem Certificate Ex.P7.
Dermo-Epidermal burns seen over scalp, face, front, sides and back of neck, front and back of the chest and upper abdomen, whole of pack, both shoulders and both upper limbs including hands, both gluteal region, front and pack of right thigh, back of left thigh, pack of left leg. All other areas intact. Burnt area shows yellow colour foul smelling pus over it. Scalp hair, eyebrows, eye lashes and axillary hair singed (Antemortem) OTHER FINDINGS:
O/D Head: Scalp intact, dual membranes and cranial vault intact, brain C/S pale, base of skull-intact.
O/D Neck: All neck structures normal hyoid bone intact.
O/D Thorax: No rib fracture, lungs C/S pale, heart normal in size chambers contained minimal fluid blood. Myocardium normal coronaries patent O/D Abdomen: Stomach: 20 ml of brown coloured fluid with no specific smell mucosa C/S pale Liver, spleen and kidneys C/S pale. Bladder empty genitalia no injuries made out. Uterus normal in size, cavity empty. Pelvis and spinal column intact.
He opined that the deceased would appear to have died of Septicemic shock due to burns. He issued Posrtmortem Certificate Ex.P7.
(v) P.W.17, examined the postmortem Doctor and other witnesses and recorded their statements, arrested the accused and recovered the material objects and after completion of investigation, he laid the charge sheet.
3. Based on the above materials, the Trial Court framed charges as detailed above and the accused denied the same as false. In order to prove the case of prosecution, as many as 17 witnesses were examined, 13 documents and 4 material objects were marked.
4. Out of the above witnesses examined, P.W.1, a resident of Eriyur Village, know both the accused and deceased. According to him, on the date of occurrence, the husband of the deceased Velmurugan died and deceased was sitting near the dead body and after 10 minutes she went inside the house and poured kerosene and set fire on her and saying that after the death of her husband there is no purpose for her live in the world. Immediately, he along with others took her to the Government Hospital, Salem. P.W.2 is the resident of Eriyur Village. According to him, the deceased herself poured kerosene and set fire on her and he along with others poured water and douse the fire and took her to the Hospital. P.W.3 is also the resident of Eriyur. According to him, he saw the deceased after fire. P.W.4 is the resident of Eriyur Village. According to him, the deceased was placed in the house after she committed self immolation. P.W.5 is the witness, witness to the Observation Mahazar and recovery of material objects. P.W.6, the deceased mother's sister. According to her, the accused only poured kerosene and set fire on her. P.W.7 is the resident of Eriyur Village. According to him, the deceased poured kerosene and set fire on her, it is only self immolation, he poured water and douse the fire and he and others took her to the Government Hospital. P.W.8 is the mother of the deceased. According to her, the accused poured kerosene and set fire on her. P.W.9 is the relative of the deceased. He saw the deceased after the occurrence. P.W.10, the Head Constable, submitted the altered FIR to the Judicial Magistrate Court. P.W.11, the Head Constable, identified the dead body for postmortem. P.W.12 turned hostile. P.W.13, the Sub Inspector of Police, working in the respondent police, obtained statement from the deceased, and registered the case. P.W.14, the Doctor, working in the Government Mohan Kumaramangalam Hospital, Salem, conducted postmortem autopsy on the dead body of the deceased and issued Posrtmortem Certificate Ex.P7. P.W.15, the learned Judicial Magistrate No.I, Salem, recorded the dying declaration of the deceased. P.W.16 is the resident of Eriyur Village. According to him, only the deceased poured kerosene and set fire on her and crying. P.W.17, the Inspector of Police, working in the respondent police, conducted investigation, examined the witnesses and recorded their statements, arrested the accused and recovered the material objects and after completion of investigation he filed the charge sheet.
5. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. The accused examined the Doctor as D.W.1, who admitted the deceased in the Hospital and also marked the Accident Register as D.W.1.
6. Having considered all the above materials, the Trial Court convicted and sentenced the appellants/accused for the offences as stated in first paragraph of this judgement. Challenging the above conviction and sentence, the appellants/accused are before this Court.
7. We have heard Mr.A.G.Rajan, learned counsel for the appellants and Mr.M.Maharaja, learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
8. P.Ws.1,2,6,7,8 and 16 are the eye witnesses to the occurrence. According to P.Ws.1 and 2, after the death of her husband Velmurugan, the deceased(wife) was crying near the dead body of the husband and after 10 minutes she went in side the house and poured kerosene and set fire on her; they poured water on her and douse the fire and took the deceased to the hospital. P.W.4 also says that it is a self immolation. According to P.W.7, the deceased herself poured kerosene and set fire on her and when she came out of the house, he poured water and douse the fire and took her to the Hospital. P.W.6 is the deceased mother's sister. P.W.8 is the mother of the deceased. According to P.Ws.6 and 8, it is only the accused poured kerosene and set fire on her. P.W.16 is the resident of Eriyur Village. According to him, it is only the deceased herself poured kerosene and set fire on her. Hence, as per the prosecution witnesses P.W.s 6 and 8 the mother and the deceased mother's sister who are interested witnesses. Except the above two witnesses, other witnesses are independent witnesses. According to them, it is only a self immolation. According to D.W.1, the Doctor who admitted the deceased in the Hospital, at the time of admission the deceased told him that she only poured kerosene and set fire on her and he issued Accident Register (Ex.D1) to that effect. Subsequently, in the Judicial dying declaration, she changed her version and said that the accused poured kerosene and set fire on her. Even in the prosecution witnesses, there is no contradiction in the evidences of independent witnesses. The independent witnesses consistently stated that it is a case of self immolation and P.Ws.6 and 8 are the interested witnesses and their evidence cannot be believed in view of the consistent evidence of independent witnesses. Apart from that, in the earlier statement of the deceased before the doctor she told that it is a self immolation and only in the Judicial dying declaration, she changed her version and implicated the accused. Therefore, the dying declaration is highly unreliable and the conviction cannot be based on the above dying declaration. In view of the consistent evidence of P.Ws.1,2,4,7 and 16, it is very clear that it is a case of self immolation. In the above said circumstances, we are of the considered view that the prosecution has failed to prove the guilt of the accused beyond any reasonable doubt. Hence, the appellant is entitled for acquittal.
9. In the result, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellants by the learned III Additional District and Sessions Judge, Kallakurichy, in Sessions Case No.372 of 2010 dated 29.07.2015 are set aside and the appellants/accused are acquitted and the bail bond, if any, executed by them shall stand cancelled and the fine amounts paid by them are ordered to be refunded forthwith.
(S.N.J.,) (V.B.D.J.,)
05.07.2016
rrg
To
1.The III Additional District and Sessions Judge,
Kallakurichy.
2.The Inspector of Police,
Keelkuppam Police Station,
3.The Public Prosecutor,
High Court, Madras.
S.NAGAMUTHU.J.,
and
V.BHARATHIDASAN.J., rrg
Crl.A.No.507 of 2015
05.07.2016
http://www.judis.nic.in