Madras High Court
Balamurugan vs The State on 22 February, 2012
Bench: N.Paul Vasanthakumar, P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22/02/2012 CORAM THE HONOURABLE Mr.JUSTICE N.PAUL VASANTHAKUMAR and THE HONOURABLE Mr.JUSTICE P.DEVADASS Criminal Appeal (MD) No.302 of 2011 1. Balamurugan 2. Maruthayee ... Appellants Vs The State by Inspector of Police Koodakovil Police Station Madurai District. ... Respondent Prayer Appeal filed under Section 374 of Criminal Procedure Code to call for the records in S.C.No.353 of 2009 from Magalir Needhi Mandram, Madurai and set aside the judgment dated 19.9.2011. !For appellants ... M/s.V.K.Sathiamurthy K.Selvaraj ^For respondent ... Mr.K.S.Duraipandian Additional Public Prosecutor - - - - - - :JUDGMENT
(Judgment of the Court was delivered by P.DEVADASS ,J)
1. This is a bride-burning case, where Poomari, an innocent girl became a prey to fire.
2. In this connection, her husband Balamurugan (A.1) and her mother-in- law Maruthayee (A.2) were prosecuted for offences under Sections 498-A and 302 IPC before the learned Additional Sessions Judge, Magalir Needhi Mandram, Madurai, in S.C.No.353 of 2009, where, on 19.9.2011, both were convicted under Sections 498-A and 302 IPC and each were sentenced to 1 year rigorous imprisonment and fined Rs.1,000/-, in default 2 months rigorous imprisonment under Section 498-A; and each were sentenced to life and fined Rs.3,000/-, in default, six months rigorous imprisonment under Section 302 IPC., and their substantive sentences were directed to run concurrently.
3. Aggrieved, as against the said conviction and sentences, both have directed this appeal.
4. In the trial Court, the case of the prosecution told may be retold, in brief, as under:-
(i) Poomari, is daughter of P.W.1 Sundarammal. P.W.1's sister's husband is P.W.2 Mahadevan. They belongs to Chinna Ulagani, in Tirumangalam Taluk, in Madurai Disrict. Balamurugan (A.1) is son of Maruthayee (A.2). They belongs to Melauppiligundu in the same District. Both the families are closely related.
(ii) In 2008, A.1 married Poomari according to Hindu rites and customs.
They have no issues. But, have issues. More than one occasion, Poomari came back to her mother's house. Panchayat was also held. It is because of dowry demand by the accused. In the third time, on the request of accused and the elders, Poomari was sent to her matrimonial home. There was demand for setting up of separate residence. Poomari requested P.W.1 to provide her utensils and other necessary articles. P.W.1 promised her to bring them on the next day.
(iii) On the next day, namely, on 9.2.2009, at about 4 p.m., P.W.3 Mayandi, Salesman, Fair Price Shop, in Chinnaulagani, received phone message that Poomari is suffering with burn injuries. He passed the message to P.W.1. P.Ws.1 and 2 came to Melauppiligundu. Seen Poomari with burns. They took her in an Ambulance to the Government Rajaji Hospital, Madurai. P.Ws.1 and 2 asked her, how it had happened. She told them, "the accused have poured kerosene on her and lit fire". Till death, she said so.
(iv) P.W.12 Nagarajan, Judicial Magistrate No.VII, Madurai, on intimation, from the Hospital (Ex.P.13), at about 6.25 p.m., visited Ward No.301, in the said Hospital. Seen Poomari. Dr.Sathish certified her consciousness and her fit mental condition to give dying declaration. She told the Magistrate that on that day morning, when she demanded setting up of separate family, her mother- in-law and her husband got angry and at about 3 p.m., they have poured kerosene on her and lit fire to her.
(v) Since she had burn injury all over her body, he obtained her left big toe impression in the dying declaration (Ex.P.14).
(vi) At the said Hospital, on 10.2.2009, at about 8.30 a.m., Poomari passed away. At about 10 a.m., P.W.15 Kamarnisa, Sub-Inspector, Koodakovil Police Station, received the death intimation from the Hospital. At the hospital, at about 11.15 a.m., P.W.1 gave her Ex.P.1 statement. Based on that, at about 12 a.m., P.W.15 registered a case in crime No.28 of 2009 under Section 302 IPC (Ex.P.15). She sent the original F.I.R to P.W.9 Jayaraj, Revenue Divisional officer, Madurai.
(vii) At about 2 p.m., P.W.10 Suvidha, Grade - I Constable, received First Information Report and handed over the same to the Judicial Magistrate, Tirumangalam at about 7 p.m.
(viii) In the meanwhile, at about 2 p.m., on receipt of a copy of F.I.R, P.W.16 Balaji, Inspector, commenced his investigation. At the scene place, in the presence of P.W.5 Ramar and Mahalingam, P.W.16 prepared Ex.P.2 observation mahazar. Drew Ex.P.16 rough sketch. In the presence of said witnesses, he recovered partly burnt saree (M.O.1), match-box (M.O.2), match-stick (M.O.3) and plastic can with 8 litres of kerosene under Ex.P.17 mahazar in the presence of said witnesses. On his instruction, P.W.4 Marudhupandian, photographed the scene-house. P.W.16 examined P.Ws.1 to 3 and other material witnesses and recorded their statements.
(ix) At the mortuary, in the presence of Panchayatdhars, P.W.9 held inquest over the dead body and opined that she died of dowry torture (Exs.P.10 report).
(x) On 11.2.2009, at about 10.45 a.m., P.W.11 Dr.Raghavaganesan, conducted autopsy on the dead body of Poomari. All over her body, he noticed burn injuries (Ex.P.11 post-mortem certificate) and she appeared to have died of extensive superficial burns of about 100% (Ex.P.12 Final opinion).
(xi) A.2 was admitted in the hospital with burn injury. On 11/2/2009, at about 5 p.m., near the said Hospital, P.W.16 arrested A.1. Sent him to the Court for judicial custody. On the request of P.W.16, court sent the seized case- properties to the chemical lab for analysis and report.
(xii) On transfer of P.W.16, P.W.17 Sulaiman, Inspector, continued the investigation. He examined the case-records, altered the section of law to section 304-B IPC. Sent Ex.P.18 alteration memo to the Court. Concluding his investigation, he filed the Final Report for offences under Sections 498-A, and 302 IPC.
5. The trial Court framed charges under Sections 498-A and 302 IPC as against both the accused.
6. To substantiate the charges, prosecution examined P.Ws.1 to 17, marked Exs.P.1 to P.18 and exhibited M.Os. 1 to 4.
7. On the incriminating aspects in the prosecution evidence, each accused has been examined. They denied their complicity in this case.
8. The accused have examined P.W.16 Balajinathan as D.W.1, who was Casuality Doctor, on 9.2.2009, at about 5 p.m., when Poomari was brought to Government Rajaji Hospital, Madurai. He gave her first-aid and admitted her in Burn Ward No.301 and issued Ex.D.1 Accident Register.
9. Appreciating the evidence adduced, the trial Court relying on the oral evidence and the dying declaration of the deceased came to the conclusion that the charges framed against the accused were proved beyond all reasonable doubts and convicted and sentenced them as already stated.
10. According to Mr.V.K.Sathiamurthy, learned counsel for the appellants, Ex.P.14 Dying Declaration is surrounded with suspicion. It is not true and voluntary. Thus, it cannot be relied on. Elaborating his submission, learned counsel for the appellants submitted as under:
(i) The deceased was persistent in having separate residence. This was disliked by the accused. So, she had committed suicide.
(ii) That is why, when she was first brought to the hospital, she had stated to D.W.1, the casualty Doctor that it was accidental fire.
(iii) There were strained relationship between P.W.1, the mother of the deceased and the accused. So, subsequently, P.W.1 tutored her daughter. So, in her second dying declaration to the Magistrate (P.W.12), she had implicated the accused.
(iv) The deceased was having 100% burn injuries. In such a situation she could not have made the dying declaration out of her free will and mind.
(v) Dr.Sathish, who was present, at the time, when the dying declaration was recorded has not been examined in court. So, the dying declaration cannot be relied on.
(vi) There are two inconsistent dying declarations. One given to D.W.1 (Ex.D1) and another one given to P.W.12 (Ex.P.14). In such circumstances, the dying declaration, first in point of time, namely, Ex.D.1 is to be preferred.
(vii) A2 had tried to save her daughter-in-law. A-2 also sustained burn injury. She was also admitted in hospital. However, prosecution had burked this.
(viii) Without making the declarant at ease, straightaway P.W.12 had recorded the dying declaration. The procedure adopted by him could not enabled the declarant to make the declaration in a free and fair atmosphere.
(ix) F.I.R. is the result of concotion by P.W.15 Sub-Inspector of Police.
(x) there are lot of interpolations and insertions in the F.I.R.
(xi) There is long, unexplained delay both in lodging the F.I.R. and in handing over it to the court.
(xii) The allegations in the F.I.R. are result of afterthought.
(xiii) The allegation of dowry torture has not been established.
(xiv) When a charge under Section 498-A I.P.C. is framed, the other charge should be for an offence under Section 304-B I.P.C., only when the charge is under Section 304-B I.P.C., the presumption under Section 113-B Evidence Act can be raised. However, in this case, since the charge is under section 302 IPC., the presumption cannot be raised.
(xv) Since the prosecution has not established its case beyond all reasonable doubts, the accused are entitled to be acquitted.
10.(a) The learned counsel for the appellants cite the following decisions in support of his submissions:
(1) PAPARAMBAKA ROSAMMA Vs. STATE OF A.P. [1999 (7) SCC 695]. (2) MOHANLAL GANGARAM GEHANI Vs. STATE OF MAHARASHTRA [1982 (1) SCC 700]. (3) BALBIR SINGH Vs. STATE OF PUNJAB [2006 (12) SCC 283]. (4) THULIA KALI Vs. STATE OF TAMIL NADU [1972 (3) SCC 393]. (5) MURUGAN Vs. STATE BY INSPECTOR OF POLICE [1994(1) CRIMES 137]. (6) RAJEEVAN AND ANOTHER Vs. STATE OF KERALA [2003 (3) SCC 355].
(7) P. MANI Vs. STATE OF T.N. [2006 (3) SCC 161].
11. On the other hand, Mr.K.S.Duraipandian, learned Additional Public Prosecutor submitted that prior to her death the deceased had been subjected to harassment. It has been spoken to by P.Ws.1 and 2. There is oral dying declaration to P.W.1 and Judicial dying declaration to P.W.12. Through out recording of dying declaration the deceased was conscious and was in a fit state of mind. This has been certified by a doctor. P.W.12 had also stated that during his recording of her dying declaration, he did not allow anybody to be near her. Merely because the certifying doctor was not examined, the dying declaration cannot be brushed aside. The dying declaration is voluntary, genuine and truthful. It is enough to record the conviction. Thus, the accused were rightly convicted and sentenced accordingly.
12. We have given our anxious consideration to the submissions of the learned counsel on either side. We have perused the evidence on record, the findings of the trial Court and also gone through the decisions cited.
13. P.W.1 Sundarammal's daughter is Poomari. They belongs to Chinnaulagani in Madurai District. A.2 Maruthayi's son is A.1 Balamurugan. They belongs to Mela-Upiligundu in Madurai District. In 2008, A.1 married Poomari according to Hindu rites and customs.
14. On 09.02.2009, at about 5 p.m., Poomari was brought in an Ambulance by her mother (P.W.1) and her mother's sister's husband Mahadevan (P.W.2) to the Government Rajaji Hospital, Madurai with 100% burn injuries. When P.W.1 asked her daughter, how it had happened, she told her that A.1 and A.2 have poured kerosene on her and lit fire to her with a match stick.
15. On receipt of intimation from the Hospital, at about 6.25 p.m, P.W.12 Nagarajan, Judicial Magistrate No.VII. Madurai, came to the said hospital, seen Poomari. Then, Dr.M.Sathish also came. The doctor certified that she was conscious and in a fit state of mind to give dying declaration.
16. In order to satisfy himself as to her fit mental condition P.W.12 put the following questions and elicited answers from her:
"Bfs;tp : ehd; kJiu ePjpgjp te;Js;Bsd; vd;gij bjhpe;J bfhz;Ouh? gjpy; : Mk;
Bfs;tp : ehd; jA;fsplk; kuz thf;FKyk; vLf;f te;Js;Bsd; vd;gij bjhpe;J bfhz;Ouh?
gjpy; : Mk;
Bfs;tp : Raepidt[ld; jhd; nUf;fpwPh;fsh?
gjpy; : Mk; "
Bfs;tp : cA;fshy; Bgr Koa[kh?
gjpy; : Mk;
Bfs;tp : cA;fs; bgah; vd;d?
gjpy; : g{khhp kUj;Jth; mspj;j rhd;wpjHpypypUe;Jk; Behahsp vdf;F mspj;j gjpypypUe;Jk; mth; thf;FKyk; bfhLf;ff; Toatuhft[k;, KGtJk; Raepidt[ld; Bgrf;Toatuhft[k;, ey;y kd epiyapYk; nUf;fpwhh; vd;Wk; cWjpg;gLj;jpf; bfhz;Bld;."
17. P.W.12 having satisfied that she was conscious and in a fit state of mind to give dying declaration, recorded her dying declaration.
18. The Magistrate questioned her "ne;jf; fhaA;fs; vA;F itj;J vg;BghJ Vw;gl;lJ? BkYk; fhaj;jpd; fhuzk; vd;d? (How and when you have got these injuries? Further, what is the reason for the injury? She replied him "nd;W fhiy vd; fzthplk; jdpf;Foj;jdk; Bghf Btz;Lk; vd;Bwd;. mjdhy; vd; khkpahh; kUjha[k;, vd; fzth; ghyKUfDk; jdpf;Foj;jdk; Bghff;TlhJ vd;W Bfhgg;gl;L nUtUk; vd;kPJ nd;W khiy 3.00 kzpf;F kz;bzz;iza; Cw;wp jP itj;Jtpl;lhh;fs;."
19. Since she had burn injuries on her fingers, P.W.12 had obtained her left big toe impression. Dr.Sathish certified that she was conscious and in a fit state of mind through out the recording of dying declaration. Her dying declaration is to the effect that on that day morning, when she asked her husband to setup separate residence, A1 and A2 got angry and at about 3 p.m., both have poured kerosene on her and set fire to her.
20. On the next day, namely, 10.02.2009, at about 8.30 a.m., at the said Hospital, Poomari died of extensive superficial burn injuries of 100% (Ex.P.11 Postmortem Certificate and Ex.P.12 Final Opinion).
21. Dying declarations are statements of persons who cannot be called as witnesses. It is hearsay evidence permissible under Section 32(1) of the Indian Evidence Act,1872.
22. In SHARDA Vs. STATE OF RAJASTHAN [2010 (2) SCC 85], it is stated as under:
"23. The principle on which dying declarations are admitted in evidence is indicated in legal maxim:
"Nemo moriturus praesumitur mentire-a man will not meet his Maker with a lie in his mouth."
It is indicative of the fact that a man who is on a deathbed would not tell a lie to falsely implicate an innocent person. This is the reason in law to accept the veracity of her statement. It is for this reason, the requirements of oath and cross-examination are dispensed with. Besides, if the dying declaration is to be completely excluded in a given case, it may even amount to miscarriage of justice as the victim alone being the eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. Though a dying declaration is entitled and is still recognised by law to be given greater weightage but it has also to be kept in mind that the accused had no chance of cross-examination. Such a right of cross-examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of the deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration."
23. In MOHAN LAL Vs. STATE OF HARYANA [2007 (3) SCC (Cri) 94], the Hon'ble Apex court laid down the following guidelines for the appreciation of dying declaration:
"This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in PANIBEN V. STATE OF GUJARAT, [(1992) 2 SCC 474]: (SCC pp. 480-81, paras 18-19)
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See MUNNU RAJA V. STATE OF M.P. [(1976) 3 SCC 104])
(ii) If the court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See STATE OF U.P. V. RAM SAGAR YADAV, [(1985) 1 SCC 552] and RAMAWATI DEVI V. STATE OF BIHAR [(1983) 1 SCC 211])
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K.RAMACHANDRA REDDY V. PUBLIC PROSECUTOR, [(1976) 3 SCC 618)
(iv) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See RASHEED BEG V. STATE OF M.P., [(1974) 4 SCC 264])
(v) Where the deceased was unconscious and could never make any dying declaration, the evidence with regard to it is to be rejected. (See KAKE SINGH V. STATE OF M.P., 1981 SCC (Cri) 645)
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See RAM MANORATH V. STATE OF U.P., [(1981) 2 SCC 654)
(vii) Merely because a dying declaration does contain the details as to the occurrence, it is not to be rejected. (See STATE OF MAHARASHTRA V. KRISHNAMURTI LAXMIPATI, 1981 SCC (Cri) 364)
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See SURAJDEO OJHA V. STATE OF BIHAR, 1979 SCC (Cri) 519)
(ix) Normally the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion.
But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See NANHAU RAM V. STATE OF M.P. [1988 SCC (Cri) 342)
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See STATE OF U.P. V. MADAN MOHAN [(1989) 3 SCC 390])
(xi) Where there is more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declarations could be held to be trustworthy and reliable, it has to be accepted. (See MOHANLAL GANGARAM GEHANI V. STATE OF MAHARASHTRA, [(1982) 1 SCC 700])
24. As between the deceased and A.1, there was matrimonial discordance. It is stated that the deceased was not having happy married life and in her matrimonial home, she was subjected to harassment.
25. Matrimonial violence against married women take place mostly within the four walls of the matrimonial home. It is between the spouses. The presence of in-laws in such circumstances are not an uncommon event. No husband, no mother-in-law will keep witness for their matrimonial atrocities. Eye-witnesses are very rare in these type of offences. That does not mean that it may not be proved at all or allow them to go unabated and unpunished. They can be established by the circumstances and the sequence of events in their family life.
26. P.W.1's daughter lived in her husband's family in Melauppiligundu. She lived in the joint family. It is the evidence of P.W.1 that after marriage, her daughter was harassed by her husband, it is mainly because of their increased dowry demand. It is also her evidence that two times her daughter returned home, it is because of their harassment. It is also her evidence that a panchayat was held. One day prior to the occurrence, elders from Mela Uppiligundu came to P.W.1's house and on their assurance, the deceased was sent along with the accused.
27. P.W.2 Mahadevan has married the sister of P.W.1. He is also residing in Chinna Ulagani. He also stated about P.W.1's daughter having been so returned to her mother's house, the panchayat and sending her away to her matrimonial home.
28. In her dying declaration (Ex.P.14), the deceased had stated as under:
"nd;W fhiy vd; fzthplk; jdpf;Foj;jdk; Bghf Btz;Lk; vd;Bwd;. mjdhy; vd; khkpahh; kUjha[k;, vd; fzth; ghyKUfDk; jdpf;Foj;jdk; Bghff;TlhJ vd;W Bfhgg;gl;L", It means that on that day morning, when she demanded her husband to set up separate family, he and his mother got angry and objected to that.
29. P.W.1 had stated that his daughter demanded setting up of separate residence. In his statement (Ex.A.8) to P.W.9 Jeyaraj, Revenue Divisional Officer, Madurai, A.1 also stated about the joint family, marital strife between him and his wife, the panchayat and wish of the deceased to set up separate residence.
30. It is nobody's case that Poomari was found with burn injuries in a place other than her matrimonial home. A.2's husband is Arjunan. Arjunan's house is situate in a row of houses in Melauppligundu. There only the deceased lived in the joint family. Ex.P.6 is the rough sketch. It is a small house. It has a kitchen and also a small hall. Plastic can containing remaining Kerosene and the other items were seized from there. There is no doubt that the unsavory incident had taken place in the said house.
31. On 09.02.2009, at about 4 p.m., P.W.1's daughter was found with burn injuries in A.2's house. A.2 was there. A.1 was also available in the village (See Ex.P.8). At that time, A.1's wife was in her hour of crisis. She was battling for her life. In such circumstances, normally an husband will go to his wife's rescue. But, in this case, inspite of he being available, he did not gone to her rescue. He did not save her. He did not take her to the hospital. In such circumstances, it is an incriminating circumstance as against him.
32. From the beginning, during and completion of recording of the dying declaration, Dr.Sathish was present. He had certified that the patient was conscious and in a fit state of mind to give dying declaration. The Magistrate (P.W.12) also stated in his evidence that he had fully satisfied that the declarant was conscious and was also in a fit state of mind to give dying declaration and thereafter, only he had recorded her dying declaration. The Magistrate has no need or animus to implicate the accused in this case. He is totally a disinterested person.
33. Dr.Sathish has not been examined in the trial Court. In the circumstances, learned counsel for the appellants submitted that the dying declaration cannot be relied on. In this respect, the learned counsel for the appellants relied on PAPARAMBAKA ROSAMMA Vs. STATE OF A.P. [1999 (7) SCC 695].
34. In PAPARAMBAKA ROSAMMA Vs. STATE OF A.P. [1999 (7) SCC 695], on 13.09.1999 a three Judges Bench (Hon'ble Mr.Justice S.P. KURDUKAR, Hon'ble Mr. Justice K.T. THOMAS AND Hon'ble Mr.Justice N. SANTOSH HEGDE, JJ) of Hon'ble Apex Court held as under:
"In our opinion, in the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration."
35. In KOLI CHUNILAL SAVJI Vs. STATE OF GUJARAT [1999 (9) SCC 562], on 29.09.1999, another three Judges Bench (Hon'ble Mr. Justice G.B. PATTANAIK, Hon'ble Mr. Justice M. SRINIVASAN AND Hon'ble Mr. Justice N. SANTOSH HEGDE, JJ) of Hon'ble Apex Court held as under:
"It is no doubt true that before recording the declaration, the officer concerned must find that the declarant was in a fit condition to make the statement in question. In RAVI CHANDER V. STATE OF PUNJAB [(1998) 9 SCC 303] this Court has held that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted."
36. It is pertinent to note that PAPARAMBAKA ROSAMMA (supra) was not brought to the notice of the Hon'ble Judges in KOLI CHUNILAL SAVJI (supra).
37. The conflicting decisions in PAPARAMBAKA ROSAMMA (supra) and in KOLI CHUNILAL SAVJI (supra) were brought to the notice of the Hon'ble Apex Court in LAXMAN Vs. STATE OF MAHARASHTRA [JT 2002(6) SC 313]. In the circumstances, a Constitution Bench consisting of 5 Hon'ble Judges (Hon'ble Mr. Justice G.B. PATTANAIK, Hon'ble Mr. Justice M.B. SHAH, Hon'ble Mr. Justice DORAISWAMY RAJU, Hon'ble Mr. Justice S.N. VARIAVA & Hon'ble Mr. Justice D.M. DHARMADHIKARI, JJ) was constituted. The Constitution Bench held as under:
"What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. ...
In the latter decision of this Court in KOLI CHUNILLAL SAVJI V. STATE OF GUJARAT [(1999) 9 SCC 562] it was held that the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a fit condition to make the statement in question. The Court relied upon the earlier decision in RAVI CHANDER V. STATE OF PUNJAB [(1998 (9) SCC 303] wherein it had been observed that for not examining the doctor the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise."
After holding so, the Constitution Bench held that the judgment in PAPARAMBAKA ROSAMMA V. STATE OF A.P. [(1999) 7 SCC 695] must be held to be not correctly decided and their Lordships affirmed the law laid down by the Hon'ble Apex Court in KOLI CHUNILLAL SAVJI V. STATE OF GUJARAT [(1999) 9 SCC 562].
38. In SHANMUGAM Vs. STATE OF TAMIL NADU [AIR 2003 SC 209], it was argued that in the absence of examination of the doctor, who certified the mental condition of the patient, the dying declaration is to be discarded. The Hon'ble Apex Court referring to LAXMAN (Supra) answered as under:
"The mere fact that the doctor, in whose presence Ext. P-16 was recorded, was not examined does not affect the evidentiary value to be attached to the dying declaration."
39. In KAMALAVVA Vs. STATE OF KARNATAKA [2010 1 SCC (Cri) 1140], the Hon'ble Apex Court held as under:
"21. The question as to admissibility of a dying declaration came up before this Court in several cases. LAXMAN V. STATE OF MAHARASHTRA [JT 2002 (6) 313] wherein also a question regarding the admissibility of the dying declaration was raised, the Constitution Bench held that the Court must decide that the declarant was in a fit state of mind to make the declaration, but where the eyewitnesses' evidence including the evidence of a Magistrate who had recorded the dying declaration to that effect was available, mere absence of doctor's certification as to the fitness of the declarant's state of mind, would not ipso facto render the dying declaration unacceptable. It was further held that the evidentiary value of such dying declaration would depend upon the facts and circumstances of each particular case."
40. So, it is seen that now the law is well settled that even based on a sole dying declaration a conviction can be recorded, if it is voluntary, genuine and truthful. Merely on account of non-examination of the medical officer, who had certified the fit mental condition of the declarant at the time when the patient had made the dying declaration, the dying declaration cannot be rejected.
41. Poomari was brought to the hospital by her mother (P.W.1) and her paternal uncle (P.W.2). Then she was battling for her life. In the circumstances, it is quite natural that they would be in the hospital. The Magistrate had stated that before recording the dying declaration he had sent away every body. Thereafter, only he had recorded her dying declaration. Therefore, in the circumstances, it cannot be stated that Poomari's dying declaration is the result of tutoring of P.Ws.1 and 2.
42. We have already noted the questions the learned Magistrate put to the patient and her answers and the Magistrate satisfied with her consciousness and fit mental condition to give dying declaration. It is relevant here to note that in BALBIR SINGH AND ANOTHER VS. STATE OF PUNJAB [2006 (12) SCC 283], the Hon'ble Apex Court held that law does not provide that a dying declaration should be made in any prescribed manner.
43. On 09.02.2009, at about 5 p.m., the deceased was brought to the hospital. At that time, she was in a critical condition. Therefore, the doctor sent intimation to the Magistrate (P.W.12), who recorded dying declaration at about 6.25 p.m. On the next day, at about 8.30 a.m. she passed away. In the meanwhile, P.W.15 Kamar Niza, Sub Inspector of Police, at about 10 a.m., at the Koodakovil Police Station, received the wireless message of her death. She has to go to Thirumangalam. Thereafter, she has to go to Madurai Town. Even by two- wheeler it will take one hour and if by bus, it will be more than an hour. At about 11.15 a.m., she received Ex.P.1 statement from P.W.1. P.W.15 came to Kooda kovil Police Station and registered the F.I.R. at about 1 p.m. and despatched it to the Revenue Divisional Officer (P.W.9), Inspector of Police(P.W.16) and Judicial Magistrate, Thirumangam through P.W.10 Suvitha, Constable.
44. It is the evidence of P.W.10 that she had reached the Magistrate's Court at about 4 p.m, since the Magistrate had already left to attend a meeting, she waited there and at about 7 p.m., on the arrival of the Magistrate, she gave the F.I.R. to the Magistrate.
45. Koodakovil Police Station is away from Thirumangalam. Thirumangalam is away from Madurai Town, where the Government Rajaji Hospital is situate. Coming from Koodakovil Police Station to Hospital by bus roughly it will take one and a half hour and it also depends on the road traffic condition. The condition of part of the road from Koodakovil is also not good. Further, it also depends on the type of vehicle, whether by bus or by two-wheeler. At any rate, it will roughly take two hours. Considering the above aspects, we are of the view that there is no delay either in registering the F.I.R. or in handing over it to the Magistrate.
46. In Ex.P.1, at some places, there appears to be over writing. It is seen that P.W.1 gave Ex.P.1 statement to P.W.15 at the hospital. It was after the death of her daughter. At about that time, P.W.1 must have been with so much mental trauma and during that time she gave the oral statement. P.W.15 wrote it near the mortuary. Possibility of incoherent statement from P.W.1 and recording of the same by P.W.15 cannot be ruled out. Further, the oral dying declaration made by Poomari to P.W.1 mentioned in Ex.P.1, also has been stated by P.W.1 in her statement under Section 161 Cr.P.C. In the circumstances, it cannot be said that the F.I.R. is doubtful, concocted and created for the occasion.
47. On 09.02.2009, at about 5 p.m., Poomari was brought to Government Rajaji Hospital, Madurai. D.W.1 Dr.Balajinathan was the causality doctor. He had examined her and admitted as an in-patient in Ward No.301. He issued Ex.D.1 Accident Register. She was having 100% burn injuries. In Ex.D.1 it is mentioned that she is alleged to have accidental burns. D.W.1 had stated that this was stated by her. Thereafter, at about 6.25 p.m., she gave dying declaration to the Magistrate (P.W.12) implicating A.1 and A.2, why it had happened, how it had happened and the role played by A.1 and A.2. Acceptance of the dying declaration depends upon the facts and circumstances of each case. When there is plurality of dying declarations, the Court can go into the circumstances under which they were made, which one was voluntary, genuine and truthful and accept that, which may be either first in point of time or next in point of time.
48. In this case, in the Ambulance in which Poomari was brought, A.2 also came. Then, A-2 was having some minor burn injury. The room in which the occurrence had taken place is very small. As per the judicial dying declaration it was stated that then in that small place, near Poomari, A.2 as well as A-1 were present. Under such circumstances, the occurrence had taken place. In the circumstances, A.2 had got burn injury.
49. A.2 also came along with her daughter-in-law. She was also in the hospital. She is also closely related to her. Poomari's husband was not present. He disappeared. In the circumstances, initially to D.W.1 Poomari had stated so. On the other hand, the very many aspects, namely, event prior to the occurrence, her living in joint family, strained relationship between the spouses, sending away of Poomari to her mother's house several times, holding of panchayat, elders taking her to the matrimonial home, the quarrel between the husband and wife, in the presence of mother-in-law, as to her demand to set up separate residence and this was disliked by A.1 and A.2 and the occurrence stated by Poomari to the Judicial Magistrate have all to be noted. In the circumstances, based on Ex.D.1 we are not to say that the dying declaration to the Magistrate is not voluntary, genuine and truthful.
50. One of the charge is under Section 498-A I.P.C. It relates to causing cruelty and harassment to married women. It need not be dowry harassment alone. Any cruelty, any harassment will come under Section 498-A I.P.C. We have seen that the deceased has been subjected to dowry harassment. When the deceased demanded setting up of separate residence, they have subjected her to harassment. This will come under Section 498-A I.P.C.
51. Section 304-B I.P.C. relates to unnatural death of a married women within 7 years of her marriage and soon before her death it was shown that she was subjected to cruelty or harassment. Intentional killing or killing with requisite knowledge is murder under Section 300 I.P.C. Both under Section 300 I.P.C. and under Section 304-B I.P.C. one common aspect is, killing. But, they differ in other respect. They differ in their ingredients. Only when the charge is under Section 304-B I.P.C., raising of presumption under Section 113-B Evidence Act arises.
52. A.1 and A.2 have been proceeded with for intentional killing and the allegation is that they have poured kerosene on the deceased and ignite it with match-stick. Thus, the charge under Section 302 I.P.C. Under such circumstances, raising the presumption under Section 113-B of Evidence Act will not arise. No such presumption was attempted to be raised in this case. That is nobody's case also. It is not necessary that when a charge under Section 498-A I.P.C. is framed, a charge under Section 304-B I.P.C. also has to be framed. It depends upon the facts and circumstances of each case.
53. Thus, it is clear that the dying declaration given by Poomari, while alive, to her mother and to P.W.12, the Judicial Magistrate are voluntary, genuine and truthful. It is free from doubt. It can be acted upon. Based on that a conviction can be safely recorded.
54. From the foregoings, it is clear that A1 and A-2 have harassed Poomari and also killed her pouring kerosene upon her and lit fire to her. Thus, the prosecution has established the charges under Section 498-A and 302 I.P.C. as against both the accused beyond all reasonable doubts. Thus, the trial Court had rightly convicted them under Sections 498-A and 302 I.P.C. and punished them accordingly.
55. Poomari, when she was 20 years old had untimely death under tragic circumstances. She was made to cry in flame. It is a case of bride-burning. Nowhere in the world, as in our country, women are burnt alive or die due to bursting of stoves or breath their last due asphyxia or hanged for not bringing adequate dowry. What sin they have committed? The sin that they have committed is marrying such greedy persons. This is not a murder for gain or for any purpose. Bride-burning is due to men's greediness treating women as chattels. This is a most atrocious crime and most reprehensible conduct on the part of the husbands and in-laws. The offenders does not deserve any mercy or sympathy.
56. In the result, this Criminal Appeal is dismissed, confirming the conviction recorded and the sentences imposed upon the appellants in S.C.No.353 of 2009, on 19.09.2011, by the learned Additional Sessions Judge, Magalir Needhi Mandram, Madurai.
mvs/sj/rrg To (1) The Additional Sessions Judge, Magalir Neethimandram, Madurai.
(2) The District Collector, Madurai District, Madurai.
(3) The Superintendent of Police, Madurai Rural District, Madurai.
(4) The Superintendent of Prisons, Central Prison, Madurai.
(5) The Superintendent of Prisons, Central Prison, Trichy.
(6) The Superintendent, The Special Prison for Women, Trichirapallai.
(7) The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
(8) The Inspector of Police, Koodakovil Police Station Madurai District.