Madras High Court
S.Kannan @ Seeikvasan vs State on 29 September, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.09.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
AND
THE HONOURABLE MR.JUSTICE V.S.RAVI
CRL.A(MD).No.237 of 2011
S.Kannan @ Seeikvasan : Appellant
Vs.
State, Rep by
Deputy Superintendent of Police,
Sankarankovil,
Crime No.115 of 2007, on the file of the
Sub-Inspector of Police, Karivalamvanthanallur Police Station,
Tirunelveli District. : Respondent
PRAYER: Appeal is filed under Section 374 of the Code of Criminal Procedure
against the Judgment and conviction dated 07.07.2011 made in S.C.No.411 of
2008 on the file of the learned Additional Sessions Judge/Mahila Court,
Tirunelveli.
!For Appellant : Mr.V.Kathirvel
Senior Counsel
For Mr.K.Prabhu
^For Respondent : Mr.C.Mayil Vahana Rajendrarn
Additional Public Prosecutor
:JUDGMENT
[JUDGMENT of the Court was delivered by S.NAGAMUTHU, J] The appellant is the sole accused in S.C.No.411 of 2008, on the file of the learned Additional Sessions Judge/Mahila Court, Tirunelveli. He stood charged for the offences punishable under Sections 498(A) and 302 of the Indian Penal Code. By Judgment dated 07.07.2011, the Trial Court has convicted the accused, as detailed below:-
Accused No. Convicted under Sections Sentence imposed Fine amount 1 498(A)IPC To undergo rigorous imprisonment for two years Rs.2,000/- in default to undergo rigorous imprisonment for three months.2
302 IPC To undergo imprisonment for life Rs.10,000/- in default to undergo rigorous imprisonment for six months.
The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellant has come up with this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:-
The deceased, in this case, was one Mrs.Boomari. The accused is her husband. Prior to the marriage, they had fallen in love with each other and in culmination of the said love affair, they married one and half year prior to the date of occurrence. For about one year, they were residing together as husband and wife at Rajapalayam. The accused had developed drinking habit and in intoxicated condition, he used to harass the deceased. It is further alleged that the accused demanded ten sovereigns of gold jewels further from her parents and since the same was not given, he further harassed her. It is further alleged that after sometime, the accused and the deceased started residing in a thatched shed, situated just in front of the house of PW-1. On 25.07.2007, at 05.30 PM, it is alleged that the accused poured kerosene on her and set fire. She cried in flames. PW-1, the father of the deceased, who was residing in the opposite house, rushed to the place of occurrence and found her in flames. He extinguished the fire. In the said process, he also sustained injuries. Then, PW-1 took the deceased to the Government Hospital at Sankarankovil.
2.1. PW-11, Dr.Krishnaveni, examined the deceased, at 07.15 PM, on 25.07.2007. She estimated the age of the deceased as hardly 17 years. At that time, the deceased was conscious. The deceased told the doctor that, at 05.30 PM, on 25.07.2007, in the thatched shed, situated in front of the house of her father, the accused poured kerosene and set fire to her. She found extensive burn injuries all over the body of the deceased. She also found that there was odour of kerosene from the body of the deceased. Considering the serious condition of the deceased, PW-11, immediately, referred her to the Government Medical College Hospital at Tirunelveli. She also gave intimation to the police.
2.2. PW-18, the then Judicial Magistrate, Sankarankovil, on receiving intimation from the Hospital Authorities, rushed to the Government Medical College Hospital at Tirunelveli, for the purpose of recording dying declaration. At 07.35 PM, he started recording the dying declaration. PW-11, after examining the deceased, gave a declaration that the deceased was in a fit state of mind to make a statement. The learned Judicial Magistrate asked few questions to the deceased and on getting satisfied that the deceased was in a fit state of mind, he recorded the dying declaration of the deceased.
EX-P13 is the dying declaration recorded by the learned Judicial Magistrate. In EX-P13, the deceased told that the accused poured kerosene and set fire to her.
2.3. On receiving intimation from the Hospital at Sankarankovil, PW-19, the then Sub-Inspector of Police, Nallur Police Station, immediately, rushed to the Government Hospital, at Sankarankovil. At 08.30 PM, he reached the Government Hospital at Sankarankovil. He was informed that the deceased had already been forwarded to the Government Medical College Hospital, at Tirunelveli. He reached the Government Medical College Hospital, at 11.40 PM. At that time, the deceased was not in a position to speak, as she was unconscious. Therefore, he recorded the statement of PW-1, under EX-P14. On returning to the Police Station, he registered a case in Crime No.115 of 2007, under Sections 498(A) and 307 of the Indian Penal Code, at 06.30 AM, on 26.07.2007. EX-P15 is the First Information Report. Then, he forwarded both the documents to the Court and handed over the investigation to the Inspector of Police.
2.4. Taking up the case for investigation, at 07.30 AM, on 26.07.2007, PW-21 proceeded to the place of occurrence, prepared an Observation Mahazer and a Rough Sketch, showing the place of occurrence in the presence of PW-15 and PW-16. He recovered a Plastic Can from the place of occurrence. He also recovered few more materials, like reaper stick etc. He took photographs at the place of occurrence with the help of a photographer. While the investigation was in progress, at 10.15 PM, on 28.07.2007, the deceased succumbed to the injuries in the hospital. Therefore, he altered the case into one under Sections 304(B) of the Indian Penal Code. EX-P19 is the alteration report. Then, he forwarded the alteration report to the Court and handed over the case diary to the Deputy Superintendent of Police for further investigation.
2.5. PW-22, the then Deputy Superintendent of Police, Sankarankovil, took up the case for investigation. Between 07.00 AM and 09.00 AM, on 29.07.2007, he conducted inquest on the body of the deceased. EX-P20 is the inquest report. Then, he forwarded the dead body for postmortem.
2.6. PW-9 - Dr.V.Paramasivam, conducted autopsy on the body of the deceased, at 02.00 PM, on 29.07.2007. He found extensive burn injuries all over the body of the deceased. He gave opinion that the deceased would appear to have died of complications of infected burns.
2.7. PW-22 forwarded the material objects to the Court with a request to forward the same for chemical examination. At 05.00 AM, on 03.08.2007, he arrested the accused and forwarded him to the Court for judicial remand. On completing the investigation, he laid charge sheet against the accused, on 20.01.2008.
2.8. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused was questioned in respect of the charges, he pleaded innocence. In order to prove the charges, on the side of the prosecution, 22 witnesses were examined, 21 documents and 4 material objects were marked. Out of the said 22 witnesses, PW-1 is the father of the deceased, who has stated that on hearing the cry of the deceased, he rushed to the thatched shed, where the deceased was residing and found her in flames. He has further stated that he extinguished the fire and in the process, he also sustained injuries. He has also stated about the demand of dowry made by the accused. Since he did not support case in respect of the complaint, he was treated as hostile and cross-examined by the Public Prosecutor. PW-2 is the brother of the deceased, who has spoken about the fact that he found the deceased in the hospital in flames and she was unconscious. PW-3 is the mother of the deceased. She has stated that the deceased was taken to the hospital, where she found the deceased in flames. PW-4 to PW-8 have turned hostile and they have not supported the case of the prosecution in any manner. PW-9 has spoken about the autopsy conducted by him and his final opinion regarding the cause of death. PW-10 is the chemical analyst, who has spoken about the chemical examination conducted on the material objects. PW-10 has spoken about the fact that he carried the First Information Report to the Court.
2.9. PW-11 is the doctor, who treated the deceased in the Government Hospital at Sankarankovil. PW-12 is the Head Clerk of the Court, who has spoken about the forwarding of the material objects for chemical examination. PW-13 is the Head Constable, who carried the First Information Report to the Court. PW-14 has stated that he carried the dead body to the hospital for postmortem. PW-15 to PW-17 have turned hostile and they have not supported the case of the prosecution in any manner. PW-18, the then learned Judicial Magistrate, has spoken about the recording of the dying declaration of the deceased. PW-19 has spoken about the registration of the case, on the complaint of PW-1. PW-20 has stated that he gave death intimation to the police concerned. PW-21 and PW-22 have spoken about the investigation conducted by them and the filing of the final report.
2.10. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against him, he denied the same as false. However, he did not choose to examine any witness nor to exhibit any document. Having considered all the above materials, the Trial Court convicted the appellant, as detailed in the first paragraph of this Judgment and punished him accordingly. That is how, the appellant is now before this Court with this Criminal Appeal.
3. We have heard the learned Senior Counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.
4. The learned Senior Counsel for the appellant would submit that the evidence of PW-1 cannot be relied on by the prosecution, as he had turned hostile. He would further submit that apart from the evidence of PW-1, the prosecution has relied on the dying declaration recorded by the learned Judicial Magistrate under EX-P13. The learned Senior Counsel would further submit that the said dying declaration cannot be given any weightage of, since the learned Judicial Magistrate had not satisfied himself about the mental fitness of the deceased, while she gave the dying declaration. The learned Senior Counsel would further submit that so far as the statement made to PW-11, the doctor, is concerned, the learned Senior Counsel would submit that the said statement made by the deceased to the doctor that her husband poured kerosene and set fire to her was out of tutoring by PW-1, the father of the deceased. The learned Senior Counsel would further submit that since PW-1 did not like the marriage between the deceased and the accused, which was out of love affair, he had tutored the deceased to make such a false statement. The learned Senior Counsel would further submit that the death was due to septicemia and the same was not directly due to the injuries. For all these reasons, according to the learned Senior Counsel, the case of the prosecution should be disbelieved and the appellant should be acquitted.
5. The learned Additional Public Prosecutor would, however, oppose this Criminal Appeal. According to him, though PW-1 has turned hostile, on that score, his evidence cannot be rejected in toto. He would further submit that PW-1 has stated very clearly about the dowry demand made by the accused and the frequent quarrels between the accused and the deceased. He would further submit that PW-1 has categorically stated that the accused used to demand dowry from the deceased and harass her in drunken state. To that extent, according to the learned Additional Public Prosecutor, the evidence of PW-1 could be believed. He would further submit that the evidence of PW-1 is duly corroborated by the evidence of PW-2. It was only PW-1, who took the deceased to the hospital. At the earliest point of time, the deceased had told PW-11, the doctor, that her husband poured kerosene and set fire to her. This statement being the earliest statement of the deceased should be given weightage of, the learned Additional Public Prosecutor contended. He would further submit that the dying declaration recorded by the learned Judicial Magistrate also deserves acceptance, as there are no reasons to reject the same. So far as the cause of death is concerned, the learned Additional Public Prosecutor would submit that since the deceased sustained 100% burn injuries, it cannot be stated that the injuries were not the cause for the death of the deceased. Thus, according to the learned Additional Public Prosecutor, the prosecution has clearly proved the case beyond reasonable doubts, which does not warrant any interference at the hands of this Court.
6. We have considered the above submissions.
7. Admittedly, there is no eye-witness to the occurrence. The prosecution has made reliance on two dying declarations given by the deceased. There is no dispute that the accused and the deceased were living together in the thatched shed belonging to PW-1 and situated opposite to the house of PW-1. PW-1 heard the cry of the deceased. When he rushed to the thatched shed, the accused was not found anywhere, but, the deceased was found in flames. PW-1 extinguished the fire and in the process, he also sustained injuries. At that time, since the deceased had fainted due to burn injuries, she could not give any information about the happenings. The very fact that PW-1 had sustained injury while extinguishing the fire would go to prove his presence.
8. The occurrence was at 05.30 PM, on 25.07.2007. PW-1 rushed the deceased to the Government Hospital, at Sankarankovil, from where the deceased was referred to the Government Medical College Hospital, at Tirunelveli. PW-11 had seen the deceased in the hospital at 07.15 PM. Absolutely, there is no evidence to show that during such interregnum period, the deceased would have been tutored by anybody. Simply because PW-1 had taken the deceased to the hospital, one cannot rush to the conclusion that the deceased would have been tutored by PW-1. Thus, at the earliest point of time, viz., at 07.15 PM, on 25.07.2007, when PW-11 examined the deceased, she found the deceased conscious and fully oriented. At that time, the deceased had told PW-11 that at 05.30 PM, on 25.07.2007, her husband poured kerosene and set fire to her. This being the earliest statement falling within the scope of Section 32 of the Indian Evidence Act, 1872, as a dying declaration deserves acceptance. We find no reason to reject the same.
9. But, the learned Senior Counsel would submit that according to the prosecution, PW-19, the then Sub-Inspector of Police, when he went to the hospital, he found the deceased in unconscious state and therefore, he could not record any statement. From this evidence, the learned Senior Counsel would submit that when the statement was made to the doctor, the deceased would have been semiconscious and not in a fit state of mind to make such a statement. The fallacy of this argument advanced by the learned Senior Counsel is very obvious from the fact that according to PW-19, when he went to the Government Medical College Hospital, at Tirunelveli, at 11.40 PM, on 25.07.2007, the deceased was unconscious. But, PW-11 has stated that when she examined the deceased at 07.15 PM, the deceased was fully conscious and oriented. There would have been no motive for the doctor to record such a false statement out of her imagination. Therefore, we reject the argument of the learned Senior Counsel that the earliest dying declaration made by the deceased to the doctor and entered in EX-P7 is not the true version.
10. Then, comes the dying declaration recorded by PW-18, the then learned Judicial Magistrate at Sankarankovil. He went to the Government Hospital at Sankarankovil, at 07.30 PM. PW-11 - Dr.Krishnaveni was attending on the deceased. On examination, PW-11 gave opinion that the deceased was fully conscious and she was in a fit state of mind to make a dying declaration. PW-18 also asked few questions in order to ascertain the mental fitness of the deceased. It was only then he recorded the dying declaration of the deceased at 07.45 PM, under EX-P13. In the said dying declaration, the deceased had told that her husband poured kerosene and set fire to her. The learned Senior Counsel would assail this dying declaration stating that the mental fitness of the deceased was not assessed by the learned Judicial Magistrate before recording the dying declaration. In this regard, he would further submit that the statement that the deceased was fully conscious and that she was in a fit state of mind to make a statement had already been typed out by the learned Judicial Magistrate. Thus, this statement was not recorded by the learned Judicial Magistrate, after arriving at a satisfaction about the mental fitness of the deceased, the learned Senior Counsel contended.
11. Though we find it difficult to fully accept the said contention of the learned Senior Counsel, we find some force in the said argument. It is needless to point out that the learned Judicial Magistrate, who recorded the dying declaration, is required to satisfy himself that the injured is in a fit state of mind to make a dying declaration. This satisfaction, which is subjective in nature, should be arrived at only on the spot, after examining the injured. Such subjective satisfaction need not necessarily be arrived at based on the medical opinion alone. Even in the absence of a doctor to give opinion regarding the mental fitness of the injured, the learned Judicial Magistrate is free to record the dying declaration, after having satisfied himself that the injured is in a fit state of mind to make a dying declaration. In other words, it is only the satisfaction of the learned Judicial Magistrate about the mental fitness of the injured and not anything more.
12. Recording dying declaration is a very serious judicial function of the learned Judicial Magistrate, because, it is the settled law that dying declaration is a vital document, which itself can be the sole foundation for conviction. In the instant case, unfortunately, the learned Judicial Magistrate had followed a strange procedure in taking a computer generated format with certain blanks. On the spot, while recording the dying declaration, the learned Judicial Magistrate has only filled up the blanks. The certificate of the doctor, except the name of the doctor and the certificate of the learned Judicial Magistrate are in computer generated format. This would indicate that even before examining the deceased, in the instant case, the learned Judicial Magistrate had prepared this statement through a computer. This procedure adopted by the learned Judicial Magistrate deserves to be deprecated with all vehemence. For any reason, from these infirmities, if the Court comes to the conclusion that the dying declaration recorded by the learned Judicial Magistrate is not beyond doubt, then, the same may be liable to be rejected.
13. In the instant case, we have to necessarily hold that the learned Judicial Magistrate had not bestowed his attention. For this reason, we are of the considered view that the dying declaration recorded by the learned Judicial Magistrate is not beyond doubt. On that score, the accused cannot be acquitted, because the dying declaration made by the deceased to the doctor remains unassailed. Though, in general, a dying declaration recorded by the learned Judicial Magistrate is a substantive piece of evidence and though the Court need not look for corroboration from independent sources to the said judicial dying declaration, in the instant case, because of the infirmities, which we have pointed out hereinabove, we are not in a position to use the said dying declaration as a substantive piece of evidence to be the sole foundation for conviction and instead, we hold that it could be used to corroborate the dying declaration recorded by the doctor. Thus, from these two dying declarations, the prosecution has clearly established that it was this accused, who poured kerosene on the deceased and set fire to her. The argument of the learned Senior Counsel that the deceased would have been tutored by PW-1 has no basis and therefore, the same is rejected.
14. Lastly, the learned Senior Counsel would submit that the death was due to septicemia and therefore, the cause of death was not directly due to the burn injuries. Thus, according to the learned Senior Counsel, the act of the accused would squarely fall within the ambit of Section 304(i) of the Indian Penal Code.
15. In our considered view, the said argument deserves a summary rejection, for more than one reason. First of all, it cannot be stated that the accused had no intention to cause the death of the deceased. The very fact that the accused poured kerosene on the head of the deceased and set fire to her would go to show that he had a definite intention to cause the death of the deceased. Thus, the act of the accused would squarely fall within the ambit of the first limb of Section 300 of the Indian Penal Code. Assuming for a moment that the accused had no intention to cause the death, undoubtedly, he had intention to cause bodily injury, which is sufficient in the ordinary course of nature to cause the death. In the instant case, the burn injuries, measuring 100% on the body of the deceased, were intended injuries by the accused. These injuries by itself would be sufficient in the ordinary course of nature to cause the death. Though septicemia supervened later, it is only due to the effect of the injuries. It cannot be stated that the septicemia had nothing to do with the burn injuries. Therefore, we have no hesitation to hold that the act of the accused would squarely fall within the ambit of at least third limb of Section 300 of the Indian Penal Code. Thus, the act of the accused is an offence, amounting to murder punishable under Section 302 of the Indian Penal Code.
16. So far as the offence under Section 498(A) of the Indian Penal Code is concerned, the evidence of PW-1 clearly establishes the same. At the time of occurrence, the deceased was hardly 17 years old. The marriage was just one and half years before the date of occurrence. It is in evidence that PW-1 has stated that the accused had demanded dowry and harassed her in drunken state. From the evidence of PW-1, which draws corroboration from the evidence of PW-2, the prosecution has clearly proved the dowry demand made by the accused. Thus, the accused is liable to be punished under Section 498(A) of the Indian Penal Code also.
17. Now, turning to the quantum of punishment, the Trial Court has imposed a minimum punishment, after having taken note of the mitigating as well as the aggravating circumstances and therefore, the quantum of punishment also does not deserve any interference at the hands of this Court.
18. In the result, this Criminal Appeal is dismissed and the conviction and sentence imposed on the appellant, by Judgment dated 07.07.2011, made in S.C.No.411 of 2008, on the file of the learned Additional Sessions Judge/Mahila Court, Tirunelveli, is confirmed. Bail bond executed by the appellant and the sureties shall stand cancelled. The Trial Court shall take steps to secure the accused to commit him in prison to serve out the remaining period of sentence. The period of sentence already undergone by the accused shall be set off under Section 428 of the Code of Criminal Procedure.
To
1.The Additional Sessions Judge/Mahila Court, Tirunelveli.
2.The Deputy Superintendent of Police, Sankarankovil.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..