Madras High Court
Raji vs State Represented By on 24 October, 2016
Bench: A. Selvam, P. Kalaiyarasan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 24-10-2016 CORAM: THE HONOURABLE MR. JUSTICE A. SELVAM AND THE HONOURABLE MR. JUSTICE P. KALAIYARASAN Criminal Appeal No.581 of 2016 and Crl.M.P.No.7969 of 2016 Raji ... Appellant Vs. State represented by Inspector of Police S-14, Peerkankaranai Police Station Chennai 600 063 Crime No.36 of 2007 ... Respondent Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 against the conviction and sentence dated 03-07-2014 in Sessions Case No.94 of 2010 on the file of the District and Sessions/ Mahila Court, Chengalpet and to set aside the same. For appellant :: Mr. J. Srinivasan For respondent :: Mr. E. Raja, Addl. PP. COMMON JUDGMENT
Challenge in this criminal appeal is to the convictions and sentences dated 03-07-2014 passed in Sessions Case No.94 of 2010 by the District and Sessions/ Mahila Court, Chengalpet.
2. The case of the prosecution is that the deceased Gowri is the wife of the accused and their marriage has taken place prior to 15 years and they have been blessed with four children. After sometime from the date of marriage, very often, the accused has used to trounce the deceased in sozzle mood. On 14-01-2008, the accused after taking liquor has made wranglings with neighbours viz., Venkatesan and his wife Ponni. The conduct of the accused has been questioned by the deceased and having enraged at the conduct of the deceased, inside the house of the accused and deceased, the accused has doused kerosene on the person of the deceased and set fire on her and further, the accused has deterred the deceased from coming out of the house. After the occurrence, the deceased herself has given a complaint and the same has been registered in Crime No.36 of 2008. The complaint alleged to have been given by the deceased has been marked as Ex-P1.
3. On receipt of Ex-P1, the Investigating Officer viz., P.W.14 has taken up the investigation. After knowing the factum of death of the deceased, he made arrangements to conduct autopsy on the person of the deceased and accordingly, the Doctor by name Selvakumar, P.W.9 has conducted necropsy and he found the following external and internal injuries:
"External Injuries: Deep infected burn over the right cheeck, chin, neck both sides of chest, abdomen to the hands in front, medical aspect of the right thigh anteriorly Posteriorly: Back ( 34% burns Septicaemia) Heart: All the chambers contain clotted blood.
Lungs-Larynx, Traches, Liver, Spleen, Kidneys: Normal Hyoid Bone Intact Stomach 100 ml yellow colour fluid present Bladder empty Pelvis, Skull, Brain & Spinal Column: Normal and intact Uterus: Normal and empty Viscera preserved."
4. The post-mortem Certificate has been marked as Ex-P11. The Investigating Officer has continued investigation and after completing the same, laid a final report on the file of the Judicial Magistrate Court, Tambaram and the same has been taken on file in P.R.C. No.36 of 2008.
5. The Judicial Magistrate, Tambaram after considering the fact that the offences alleged to have been committed by the accused are triable by Sessions Court committed the case to the Court of Sessions, Chengalpet Division and taken on file in Sessions Case No.94 of 2010 and subsequently, made over to the Trial Court.
6. The Trial Court after hearing arguments of both sides and upon perusing the relevant records has framed the first charge under Section 498(A), second charge under Section 302 and third charge under Section 342, IPC against the accused 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 14 have been examined and Exs-P1 to P17 and M.Os.1 to 5 have been marked.
8. When the accused has been questioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against him, he denied his complicity in the crime. No oral and documentary evidence have been adduced on the side of the accused.
9. The Trial Court after hearing arguments of both sides and after perpending both the oral and documentary evidence available on record has found the accused guilty under Section 498-A and sentenced him to undergo one year rigorous imprisonment and he has also been found guilty under Section 302 and sentenced to undergo imprisonment for life with a fine a of Rs.5000/- with usual default clause. The Trial Court has also found him guilty under Section 342 IPC and sentenced him to undero 1 year Rigorous Imprisonment. Against the convictions and sentences passed by the Trial Court, the present Criminal Appeal has been preferred by the accused .
10. The sum and substance of the case of the prosecution is that the accused is the husband of the deceased by name Gowri and their marriage has been performed prior to fifteen years and both of them have been blessed with four children. After sometime from the date of marriage, the accused has used to torture the deceased in sozzle mood. On 14-01-2008, the accused has made wranglings with the neighbours namely, Venkatesan and his wife viz., Ponni in sozzle mood and the accused has been questioned by the deceased. Having enraged against her conduct, inside the house of both the accused and deceased, the accused has doused kerosent on the person of the deceased set fire on her. After such occurrence, the deceased herself has given Ex-P1, complaint.
11. The learned counsel appearing for the appellant/accused has raised the following points, so as to supplant the convictions and sentences passed against the appellant/accused:
(i) The deceased herself has doused kerosene and set fire on her for the purpose of committing suicide and the accused has tried to save her life and in his attempt he suffered injuries and P.W.2 viz., Venkatesan has also given evidence to the effect that the accused has poured water on the body of the deceased and the Trial Court has failed to consider the same.
(ii) After occurrence, the accused himself has gone to the Police Station and given a complaint and the same has not been registered and even medical memo has not been marked on the side of the prosecution.
12. In order to resile the contentions put forth on the side of the appellant/accused, the learned Additional Public Prosecutor has contended that in the instant case, the prosecution has set the law in motion only on the basis of Ex-P1 complaint, alleged to have been given by the accused wherein it has been clearly mentioned about the overtacts alleged to have been committed by the accused and apart from the complaint given by the deceased, she has also given a dying declaration and the same has been marked as Ex-P9 and further, the concerned Doctor has given a Certificate to the effect that at the time of giving dying declaration, the deceased is conscious and the Trial Court after considering the overall evidence available on record has rightly found the accused guilty under Sections 498-A, 302 and 342, IPC and therefore, the convictions and sentences passed by the Trial Court do not require any interference.
13. The prosecution has set the law in motion only on the basis of Ex-P1, complaint alleged to have been given by the deceased wherein it has been clearly stated about the ordeals meted out by the deceased from the date of marriage and also the occurrence alleged to have taken place on 14-01-2008. To put it in short, in Ex-P1 it has been clinchingly stated to the effect that on the date of occurrence, the accused has doused kerosene on the deceased and set fire on her. Apart from Ex-P1 on the side of the prosecution, Ex-P9 dying declaration is also available, wherein it has been clearly stated to the effect that the occurrence has taken place on 14-01-2008 inside the house of the deceased. At the time of the occurrence, the accused has doused kerosene on the person of the deceased and set fire on her.
14. It is an admitted fact that on the side of the prosecution P.Ws.1 to 14 have been examined and all the vital witnesses have been treated as hostile. Under the said circumstances, the Court has to analyse as to whether the prosecution has established the guilt of the accused punishable under Sections 498-A, 302 and 342 of the Indian Penal Code even without a speck of doubt.
1.As adverted to earlier, the prosecution has set the law in motion only on the basis of Ex-P1 complaint, wherein it has been clearly stated to the effect that the deceased has met so many ordeals at the hands of the accused. Further, in Ex-P1, it has been clearly stated that on 14-01-2008, the accused has doused kerosene on the person of the deceased inside their house and set fire on her.
2.
16. It is seen from Ex-P11, Post Mortem Certificate that the death has occurred due to burn injuries. Therefore, it is quite clear that only due to the overtacts alleged to have been committed by the accused, the deceased has passed away. It has already been pointed that the prosecution has set the law in motion only on the basis of Ex-P1 wherein it has been clearly stated about the overtacts of the accused. Further, as per Ex-P11, the deceased has passed away only due to burn injuries. Considering the fact that the deceased has passed away only due to burn injuries and also considering that after giving Ex-P1 she has passed away, the Court can very well invoke Section 32(1) of the Indian Evidence Act, 1872.
17. It is an archaic principle of law that after giving a complaint/statement, the author of the same has passed away wherein also the cause of death has been mentioned, the same can be treated as dying declaration. Further, the same does not need any corroboration. Therefore, Ex-P1 is nothing but a dying declaration and the same is admissible in evidence. Apart from Ex-P1, in the instant case, Ex-P9 dying declaration is also available wherein it has been clearly stated to the effect that in the house of both the accused and deceased, the accused has doused kerosene on the person of the deceased and set fire on her. Therefore, Ex-P9 has also lent support to the case of the prosecution.
18. It is an admitted fact that the occurrence has taken place inside the house of both the accused and deceased. In Exs-P1 and P9, it has been clearly stated to the effect that the occurrence has taken place in the place mentioned supra. Considering the fact that the occurrence has taken place inside the house of both the accused and deceased and at the time of occurrence, the accused has also been present inside the house as per Section 106 of the Indian Evidence Act, 1872, the entire burden lies upon the accused. In fact, this Court has perused the entire answers given by the accused to the questions posed under Section 313 of the Code of Criminal Procedure, 1973 and he simply denied all questions put to him. Since there is no specific explanation on the part of the accused as to how the deceased has got burn injuries, it is needless to say that the burden which lies upon the accused, remains undischarged. On that score also, the Court can very well come to a conclusion that the accused has doused kerosene on the person of the deceased and set fire on her.
19. The first and foremost contention put forth on the side of the appellant/accused is that the deceased herself doused kerosene and set fire on her and in order to save her, the accused has made attempts and in that process, he suffered injuries.
20. If really such occurrence or such an attempt has taken place definitely in Exs-P1 and P9, it would have been stated that the accused has not doused kerosene on the person of the deceased and set fire on her. It is true that the neighbour by name, Venkatesan has been examined as P.W.2 and he simply stated in his evidence that the accused has poured water on the person of the accused and that itself would not be sufficient for coming to a conclusion that the deceased herself has made an attempt to commit suicide and the accused has tried to save her and therefore, the first and foremost contention put forth on the side of the appellant/accused is totally contra to the available evidence on record and therefore, the same cannot be accepted.
21. The second contention is that the complaint alleged to have been given by the deceased has been suppressed on the side of the prosecution. It is seen from the records that after occurrence, the deceased has given a complaint and registered in Crime No.36 of 2008 and the same has been marked as Ex-P1. Since the complaint alleged to have been given by the deceased has been properly registered in Crime No.36 of 2008, the second contention put forth on the side of the appellant/accused is nothing but a brain wave of the learned counsel appearing for the accused.
22. The Trial Court after considering the contents of Exs-P1 and P9 has rightly found the accused guilty under Sections 498-A, 302 and 342, IPC. In view of the discussions made earlier, this Court has not found any force in the contentions put forth on the side of the appellant/accused and therefore, the present Criminal Appeal deserves to be dismissed.
In fine, this Criminal Appeal is dismissed. The convictions and sentences passed in S.C.No.94 of 2010 are confirmed. The connected miscellaneous petition is also dismissed.
(A.S.,J.) (P.K.,J.)
24-10-2016
Index: yes/no
glp
A.SELVAM,J.
and
P. KALAIYARASAN,J.
glp
To
1. The District and Sessions/ Mahila Court, Chengalpet
2. The Additional Public Prosecutor
High Court, Madras
Criminal Appeal No.581 of 2016
and Crl.M.P.No.7969 of 2016
24-10-2016