Madras High Court
Arumugam vs State Rep. By on 26 September, 2019
Equivalent citations: AIRONLINE 2019 MAD 798, (2019) 4 MAD LJ(CRI) 257
Bench: M.Sathyanarayanan, B.Pugalendhi
Crl.A(MD)No.391/16
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 27.06.2019
PRONOUNCED ON : 26.09.2019
CORAM:
THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN
and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl.A.(MD)No.391 of 2016
Arumugam ... Appellant
Vs.
State rep. by
The Inspector of Police,
Palani Taluk Police Station,
Dindigul District. ... Respondent
PRAYER: Appeal filed under Section 374(2) of the Code of
Criminal Procedure, to call for the entire records
connected to the judgment in S.C.No.33 of 2013 on the file
of the Magalir Neethimandram (Fast Track Court), Dindigul,
dated 29.02.2016 and set aside the conviction and sentence
imposed against the appellant.
For Appellant : Mr.K.Prabhu (Legal aid Counsel)
For Respondent : Mr.S.Chandrasekar,
Additional Public Prosecutor
*****
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Crl.A(MD)No.391/16
JUDGMENT
B.PUGALENDHI, J., The appellant is the sole accused in Crime No.282 of 2012 on the file of the Palani Taluk Police Station, Dindigul District and he was tried before the Magalir Neethimandram (Fast Track Court), Dindigul, in S.C.No.33 of 2013, for the commission of offence under Section 302 IPC. The learned Sessions Judge, after full fledged trial, by order dated 29.02.2016, found him guilty of the offence punishable under Section 302 IPC, convicted and sentenced him to undergo simple imprisonment for life, with a fine of Rs.1,000/-, in default to undergo simple imprisonment for one year. As against the order of conviction and sentence, this Criminal Appeal has been filed.
2. The background facts, as projected by the prosecution, in a nutshell, are as follows:
2.1. The deceased, namely, Vanitha and the appellant / accused, namely, Arumugam have got married and they are having two children. The father of the deceased, namely, Kalaivanan [PW1], on 15.07.2012, went to 2/29 http://www.judis.nic.in Crl.A(MD)No.391/16 Bethanaickenpatty to see his daughter and there he saw his daughter lying down with burn injuries. On enquiry, he was informed that it was an accidental fire and after arranging an Ambulance through '108' Services, his daughter was sent to Government Hospital, Palani, for treatment. The Doctor, namely, Sridharan [DW1] admitted the deceased on 15.07.2012 at about 04.45 pm and according to him, the deceased told that it was an accidental injury and the Doctor issued the Accident Register [Ex.D1] that the deceased sustained 25% burn injuries.
2.2. According to PW1, on 20.07.2012, when he and his daughter / the deceased were alone, his daughter informed him that it is her husband / the appellant, who had poured kerosene on her and set her ablaze, with an intention to kill her. Her husband has threatened her that he would kill the children, if she tells anybody and therefore, she did not reveal the fact to anyone.
Immediately, PW1 went to the Palani Taluk Police Station and lodged the complaint [Ex.P1] on 20.07.2012 at about 11.00 am.
3/29 http://www.judis.nic.in Crl.A(MD)No.391/16 2.3. The Sub-Inspector of Police [PW16], on receipt of the complaint [Ex.P1] has registered the case in Crime No.282 of 2012 for the commission of offence under Section 307 IPC. The printed First Information Report is marked as Ex.P9. On coming to know that his father-in-law [PW1] has lodged a complaint before the respondent police, the appellant / accused surrendered before the Village Administrative Officer [PW8].
2.4. After registering the case, PW16 proceeded to the place of occurrence at 12.00 noon on the same day, prepared the observation mahazar [Ex.P7] and rough sketch [Ex.P10] in the presence of PW13 and another. She has also recorded the statements of PWs 1 to 7, 13 and one Vijay. On the same day, at about 02.45 pm, the accused was brought to the Police Station by the Village Administrative Officer, namely, Karthika [PW8] and the Village Assistant, namely, Alagarsamy [PW11]. Thereafter, PW16 arrested the accused and recorded his confession statement and in furtherance to the same, a 5Lr kerosene can with 1/2Lr kerosene [MO1] and a burnt log [MO2] were recovered.
4/29 http://www.judis.nic.in Crl.A(MD)No.391/16 2.5. According to the prosecution, the appellant had taken the money kept by his wife / deceased and spent the same, by consuming liquor. Therefore, a quarrel emanated and triggered by the same, the appellant has poured kerosene on her and set her ablaze. He further threatened the deceased that if she reveals it to anyone, he will kill the children also. Therefore, the deceased has told everyone that it was an accidental fire. On 20.07.2012, when she and her father was alone, she told her father about the fact.
2.6. On 20.07.2012, since the health condition of the deceased was deteriorating and the burn injuries increased to 70%, the Doctor, namely, Elangovan [PW9], who was on duty, gave a requisition letter [Ex.P2] to the Judicial Magistrate, Palani, to record the dying declaration of the deceased. The learned Judicial Magistrate, Palani, received the said letter at about 05.00 pm, went to the hospital and recorded the dying declaration from 05.15 pm to 05.50 pm. Before recording the dying declaration, the Doctor has certified that the 5/29 http://www.judis.nic.in Crl.A(MD)No.391/16 deceased was fully conscious and her mental condition was very good. The learned Magistrate, after ascertaining and satisfying with the deceased's physical and mental condition, has recorded the dying declaration [Ex.P3 & 8].
2.7. The Inspector of Police, Palani Taluk Police Station [PW17] conducted the further investigation from 21.07.2012 and has recorded the statements of the victim and other witnesses. On 04.08.2012, the deceased died and on receiving the said information, PW17 altered the First Information Report to Section 302 IPC at about 07.30 pm. The alteration report is marked as Ex.P12 and the same was submitted before the learned Judicial Magistrate, Palani, at about 09.10 pm by the Constable [PW14]. PW17, thereafter, conducted the inquest on the body of the deceased on 05.08.2012 from 08.00 am to 10.00 am and the inquest report was marked as Ex.P13. Thereafter, he sent a requisition through the Constable [PW12], for postmortem.
2.8. PW10 conducted the postmortem on 05.08.2012 at about 11.00 am and he noted that Rigor Mortis was present in all four limbs and gave his final opinion that 6/29 http://www.judis.nic.in Crl.A(MD)No.391/16 the deceased appears to have died of Septicemia due to extensive burnt injuries.
2.9. After examination of the remaining witnesses, PW17 filed the final report. On the side of the prosecution, 17 witnesses were examined and 13 exhibits were marked and 2 materials objects were produced.
3. The available evidences from the prosecution side are as follows:
i) PW1 is the father of the deceased and according to him, on 15.07.2012, he went to Bethanaickenpatty to see his daughter, where, she was found lying with burn injuries. He has shouted at the appellant for not admitting her in the Hospital. The appellant's relative, one Muruganantham [PW7] called 108 Ambulance Services and thereafter, she was admitted in the Government Hospital, Palani. Though, PW1 was initially informed by the deceased that it was an accidental fire, on 20.07.2012, when he and the deceased were alone in the Hospital, she told that her husband poured kerosene and set her ablaze. Immediately, PW1 has lodged the complaint [Ex.P1].
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ii) PW2 is the elder daughter of the deceased, aged about 9 years at the relevant point of time and she has not stated anything in the Court. The trial Court has held that she is not mature enough to depose.
iii) PW3 is the brother of the deceased and he is a hearsay witness. He went to the police station along with his father [PW1] and lodged the complaint. His evidence corroborates with that of the dying declaration of the deceased as well as the evidence of PW1.
iv) PW4 is the mother of the deceased and her evidence corroborates with that of the dying declaration of the deceased as well as the evidence of PW1 & PW3.
v) PW5 is the neighbour of the appellant / accused and he speaks about the fire accident.
vi) PW6 is also a neighbour of the appellant / accused and he was treated as a hostile witness.
vii) PW7 is a relative of the appellant and also a neighbour. He has called the 108 Ambulance.
viii) PW8 is the Village Administrative Officer. On 20.07.2012, at about 12.00 pm, the appellant appeared before her and told that he had taken the money kept by his wife and spent it. Therefore, a quarrel emanated and 8/29 http://www.judis.nic.in Crl.A(MD)No.391/16 he poured kerosene on her and set her ablaze. PW8 produced the appellant / accused before the Palani Police Station and recorded his statement. She is also a witness to the confession statement given by the appellant / accused before the investigation officer.
ix) PW9 is the Doctor, who was on duty on
20.07.2012. Since the deceased's health condition was
deteriorating, ie., 70% burn injuries, he requested the Judicial Magistrate, Palani, to record the dying declaration of the deceased.
x) PW10 is the Doctor, who conducted the postmortem on the body of the deceased. The postmortem certificate is marked as Ex.P4.
xi) PW11 is the Village Assistant and he was present along with the Village Administrative Officer on 20.07.2012, when the appellant / accused came to the Office of the VAO and gave the extra judicial confession statement. He is also an witness to the said confession statement.
xii) PW12 is the Constable, who accompanied the body of the deceased for postmortem.
xiii) PW13 is the witness for observation mahazar 9/29 http://www.judis.nic.in Crl.A(MD)No.391/16 [Ex.P7].
xiv) PW14 is the Constable, who received the alteration report / express report on 04.08.2012 at about 08.00 pm and handed over the same to the Judicial Magistrate, Palani at about 09.10 pm on the same day.
xv) PW15 is the Judicial Magistrate who recorded the dying declaration of the victim [Ex.P8].
xvi) PW16 is the Sub-Inspector of Police, who received the complaint [Ex.P1] on 20.07.2012 at about 11.00 am and registered the First Information Report [Ex.P9]. She also speaks about the preparation of mahazar, rough sketch, arrest of the accused and the recovery of material objects.
xvii) PW17 is the Inspector of Police, who conducted the further investigation right from 21.07.2012. Since the deceased died on 04.08.2012, he altered the FIR to Section 302 IPC. After completing the investigation, he filed the final report.
4. After the prosecution evidence was closed, the incriminating materials were put to the accused under Section 313 Cr.P.C. and the accused denied the same. 10/29 http://www.judis.nic.in Crl.A(MD)No.391/16
5. On behalf of the appellant / accused, the Doctor who admitted the deceased at Palani Government Hospital on 15.07.2012 at 04.45 pm as inpatient, was examined as DW1. He deposed that the deceased sustained 25% burn injuries at the time of admission and the deceased informed that it was an accidental fire. The Accident Register issued by the Doctor is marked as Ex.D1 and the entire case sheet is marked as Ex.D2.
6. In conclusion of the trial, the learned trial Judge has convicted the appellant as stated above. As against the conviction and sentence, the appellant has filed this appeal.
7. When the main appeal was taken up for final hearing, on 12.02.2018, Mr.D.Venkatesh and Mr.P.Chellapandian, Advocates on record for the appellant withdrew their memo of appearance and also filed a memo to that effect. Therefore, this Court issued notice to the appellant asking him to show cause as to why the bail should not be cancelled. The notice was returned with the certificate of the Village Administrative Officer that the 11/29 http://www.judis.nic.in Crl.A(MD)No.391/16 appellant was not available in the given address and his whereabouts were not known. In such view of the matter the suspension of sentence granted to the appellant in Crl.MP(MD)No.10165 of 2016 was set aside by order dated 25.04.2019 and this Court appointed Mr.K.Prabhu [Enrollment No.1968 of 2001], an Advocate, who has about 18 years of standing in the Criminal Bar to represent the appellant and present the case.
8. Mr.K.Prabhu, learned Counsel for the appellant has raised the following points for the consideration of this Court:
8.1. Though the occurrence has taken place on 15.07.2012, the complaint was lodged after five days only ie., on 20.07.2012 and this delay has not been properly explained by the prosecution.
8.2. The victim / deceased, while admitted in the Government Hospital, Palani, on 15.07.2012, has stated before Dr.Sridharan [DW1] that she sustained burn injuries due to an accident, while preparing food. 12/29
http://www.judis.nic.in Crl.A(MD)No.391/16 8.3. The occurrence has taken place in the house of the appellant and the deceased and apart from them, their children, namely, PW2 and another child, namely, Somasundaram, were also present at the time of occurrence. The prosecution had examined PW2, namely, the daughter alone and she did not support the case of the prosecution. But her evidence was discarded by the trial Court as she was immature to give the evidence, despite the fact that PW2 was in the custody of PWs 1 & 4 and that the appellant had no access to his children.
8.4. The extra judicial confession statement relied on by the prosecution is a weak piece of evidence and it does not corroborate by any other evidence and the evidence of the Village Administrative Officer [PW8], who recorded the extra judicial confession statement [Ex.P11], has stated that the statement was recorded on the direction of the investigating officer.
8.5. While recording the dying declaration [Ex.P8], the Doctor [PW9] has given a certificate [Ex.P3] that the patient was fully conscious and her mental 13/29 http://www.judis.nic.in Crl.A(MD)No.391/16 condition was very good. But, the Doctor has not stated whether the deceased was in a fit mental condition to make a voluntary disclosure of the incident. Moreover, there is no chemical analysis report to establish that the injuries sustained by the deceased at the time of occurrence were on account of kerosene.
8.6. The learned Counsel for the appellant has also relied upon the following judgments in support of his arguments:
i) In Paparambaka Rosamma & Ors. v. State of Andhra Pradesh, reported in 1999 SAR (Criminal) 646, the Hon'ble Supreme Court has held as follows:
“8. The main question is as to whether she was conscious and was in a fit mental condition to make a voluntary disclosure of the incident. Dr.K.Vishnupriya Devi (PW10) who was attached to Tenali Government Hospital examined Smt.Venkata Ramana on 4th March, 1994 at 01.30 pm. She then sent a requisition (Ex.P9) to the Magistrate Shri K.Lakshamana Rao (PW13) to record the dying declaration of the injured. All that Dr.K.Vishnupriya Devi has stated is that injured was conscious but she has not deposed that the injured was in a fit state of mind to make a 14/29 http://www.judis.nic.in Crl.A(MD)No.391/16 statement. It has come on record that Smt.Venkata Ramana had sustained 90% burn injuries. K.Lakshamana Rao (PW13) who recorded the dying declaration has made a note in Ex.P14 – the dying declaration after putting some preliminary questions to the injured and it reads as under:-
“On the basis of answers elicited from the declarant to the above questions I am satisfied that she is in a fit deposing state of mind to make a declaration”. Thereafter, the learned Magistrate proceeded to record the dying declaration. At the end, Dr.K.V.Vishnupriya Devi (PW10) has appended a certificate saying “patient is conscious while recording the statement”. The question that needs to be considered is as to whether the Magistrate could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the doctor certifying the state of mind that existed before recording the dying declaration? In our opinion, in the absence of 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. It is a case of circumstantial 15/29 http://www.judis.nic.in Crl.A(MD)No.391/16 evidence and only circumstance relied upon by the prosecution is dying declaration.
9. It is true that the medical officer Dr.K.Vishnupriya Devi (PW10) at the end of the dying declaration had certified “patient is conscious while recording the statement”. It has come on record that the injured Smt.Venkata Ramana had sustained extensive burn injuries on her person. Dr.P.Koteswara Rao (PW9) who performed the postmortem stated that injured had sustained 90% burn injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr.Smt.K.Vishnupriya Devi (PW10) did not comply with the requirement inasmuch as she failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that “patient is conscious while recording the statement”. In view of these material omissions, it would not be safe to accept the dying declaration (Ex.P14) as true and genuine 16/29 http://www.judis.nic.in Crl.A(MD)No.391/16 and was made when the injured was in a fit state of mind. From the judgments of the courts below, it appears that this aspect was not kept in mind and resultantly erred in accepting the said dying declaration (Ex.P14) as a true, genuine and was when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below.”
ii) In Dhanam vs. State rep. by the Deputy Superintendent of Police, Kottakuppam Sub Division, Vaanur, Villupuram District, (in Criminal Appeal No.532 of 2011, decided on 21.01.2016), a Division Bench of this Court has held as follows:
“17. Admittedly, there is no eye witness to the occurrence. The prosecution relies mainly on Ex.P7, the statement said to have been given by the deceased to PW8. We find it difficult to accept Ex.P8 containing the true version of the occurrence, as it is projected by the prosecution, for more than one reason. First of all, at the earliest point of time, when the deceased was in the company of her parents, viz., PWs 1 and 2, she 17/29 http://www.judis.nic.in Crl.A(MD)No.391/16 told the Doctor that she sustained burn injuries while cooking in the kitchen due to accidental bursting of the kerosene stove. It is not as though the deceased was under the clutches of either the accused or any third party right from her village to Puducherry where she was admitted in the hospital. For such a long time, the deceased was only under the influence of PWs 1 and
2. Therefore, the deceased would have no reason to give a wrong information to the Doctor. Had it been true that the accused had set her on fire, absolutely, there is no explanation as to why the deceased, that too in the presence of PWs 1 and 2, had told the Doctor that she sustained injuries while she was cooking in the kitchen due to bursting of kerosene stove.”
9. Per contra, the learned Additional Public Prosecutor would submit that the occurrence has taken place in the house of the appellant and the appellant has spent the money irresponsibly for liquor, which was questioned by the wife of the deceased and she also refused to cook. Furiated over the same, the appellant / accused kicked her, poured the kerosene found nearby and set the deceased on fire. The accused has also intimidated 18/29 http://www.judis.nic.in Crl.A(MD)No.391/16 his wife that if she disclose the same to anybody, he would kill the children in the same manner. Afraid of the same, the victim has not disclosed the fact for five days and thereafter, disclosed the same to PWs 1 & 4 as well as before the learned Judicial Magistrate [PW15]. The learned Judicial Magistrate has also recorded the dying declaration of the deceased after obtaining certificate as to her condition from the Doctor [PW9]. Apart from the same, the appellant has also disclosed the commission of offence before the Village Administrative Officer and the extra judicial confession recorded by the Village Administrative Officer is also marked as Ex.P11.
Therefore, the learned Government Advocate (Crl. Side), prays for dismissal of this criminal appeal.
10. This Court has paid it's anxious consideration to the rival submissions made by the learned Counsel on either side and also the records produced by them.
11. The deceased in this case has fallen prey to liquor. She and her husband / the appellant were working as Mason and got their weekly salary of Rs.1500/- on 19/29 http://www.judis.nic.in Crl.A(MD)No.391/16 Saturdays. On the fateful day, from that money, the deceased purchased fish and vegetables for Rs.500/- and gave the remaining amount of Rs.1000/- to her husband for purchasing Rice. At that time, the appellant consumed alcohol and bought two bottles also. The deceased, who was under financial stress as to the settlement of milk and other dues, quarreled with her husband / the appellant. The appellant, under the influence of liquor, kicked her and also poured kerosene and set her ablaze.
12. The deceased was taken to the Government Hospital, Palani, on 15.07.2012 at about 04.45 pm, by the brother-in-law of the appellant, who was also a neighbour. While admitting in the Hospital, the deceased has informed the duty Doctor, namely, Dr.Sridharan [DW1] that she sustained injuries on account of an accident while cooking. According to the Doctor [DW1], the deceased had sustained 25% burn injuries at the time of admission and he has issued the Accident Register.
13. But the prosecution has failed to examine the said Doctor, Sridharan, who admitted the deceased on 20/29 http://www.judis.nic.in Crl.A(MD)No.391/16 15.07.2012 and also failed to produce the Accident Register recorded during the admission. However, the Doctor Sridharan [DW1] was examined as the defence witness and he also produced the case sheet of the deceased [Ex.D2], which includes the Accident Register copy, showing that the deceased had sustained 25% burn injuries.
14. According to the Doctor [DW1], the admission of the deceased in the Hospital was duly intimated to the concerned Police Station. The evidence of the Doctor [DW1] corroborates with that of PW1 that on the next day of admission of his daughter in the Hospital, police came to the Hospital and have recorded the statement from the deceased. The brother of the deceased [PW3] and the mother of the deceased [PW4] have also stated in the similar line. However, no such statement has been placed before the Court and there is no explanation for the same.
15. The complaint in this case was lodged only on 20.07.2012, ie., after five days and the explanation given by the prosecution for such delay is that the appellant / accused has intimidated the victim that if she disclosed 21/29 http://www.judis.nic.in Crl.A(MD)No.391/16 the truth to anybody, then he would kill their children in the same manner and therefore, apprehending danger to her children, the victim did not disclose the commission of offence to anyone immediately.
16. According to PW1, when he was alone with his daughter on 20.07.2012, his daughter / the deceased informed him that this appellant / accused has poured kerosene and set fire to her. Thereafter, he went to the Palani Taluk Police Station and lodged the complaint [Ex.P1] before the Sub-Inspector of Police [PW16]. But, according to his wife [PW4], her daughter / the deceased informed about the incident to her three days after the admission in the Hospital, ie., on 18.07.2012. While so, there is no explanation as to why PW4 did not inform the same to her husband on 18.07.2012 itself. Moreover, the entire prosecution case begins only from 20.07.2012.
17. The Doctor, Elangovan, [PW9] who was on duty at Government Hospital, Palani, on 20.07.2012, made a requisition to the learned Judicial Magistrate, Palani, to record the dying declaration of the deceased, vide Ex.P2, 22/29 http://www.judis.nic.in Crl.A(MD)No.391/16 as the health condition of the deceased was deteriorating and that it is a case of 70% burn injuries. The learned Magistrate received the said letter at about 05.00 pm, went to the Hospital and recorded the dying declaration of the deceased on 20.07.2012 from 05.15 pm to 05.50 pm.
18. It is curious to note that all these events, namely, the registration of the complaint as well as recording of the dying declaration took place on the same day, ie., on 20.07.2012, after the deceased disclosed about the commission of offence to her father [PW1]. There is a contradiction in the evidence of the Doctor who admitted the deceased on 15.07.2012 [DW1] and the Doctor who was on duty on 20.07.2012 [PW9], as to the extent of burn injuries, ie., whether 25% or 70%. But, the fact remains, according to the Doctor [PW10] who conducted the postmortem, the death was due to Septicemia.
19. The evidences available in support of the prosecution are the dying declaration and the extra judicial confession statement, apart from the evidence of PWs 1 & 4.
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20. The dying declaration, which is found to be voluntary and truthful and free from any doubts, can be a sole basis for convicting the accused. It is also to be borne in mind that in the case of dying declaration, the accused does not have a right to cross examine the maker, so as to elicit the truth, as happens in the case of other witnesses. In this case, we have analysed the dying declaration, scrupulously, to find out whether the dying declaration is voluntary, truthful and made in a conscious and fit state of mind and uninfluenced by any other persons, including the relatives and the investigation agency.
21. According to the Doctor [DW1], who admitted the deceased in the Government Hospital, Palani, the deceased has told him that she sustained injury due to an accident. It is also the stand of PWs 1, 3 & 4 that they were informed that it was only an accident. But, the prosecution case took a sudden turn on 20.07.2012 that it is the accused, who poured kerosene and set the deceased ablaze.
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22. In the Accident Register filed along with the case sheet [Ex.D2], the Doctor, who admitted the deceased at the Hospital on 15.07.2012 at 04.45 pm, has stated that it is an accidental one and it was intimated to the Police. The Doctor has also recorded that the deceased sustained 25% burn injuries. Whereas, the Doctor [PW9] in Ex.P2 issued on 20.07.2012, has recorded that it is a case of 70% burn injuries. But, admittedly, the deceased died only due to Septicemia.
23. In view of the contradictory evidence available, the dying declaration, which was recorded after five days, contravening the earlier stand, does not repose confidence in the mind of this Court that it is voluntary and truthful. Moreover, the learned Judicial Magistrate, Palani [PW15], who recorded the dying declaration, has not read out the dying declaration to the deceased and has obtained her signature.
24. Insofar as the extra judicial confession statement recorded by the Village Administrative Officer 25/29 http://www.judis.nic.in Crl.A(MD)No.391/16 [PW8] is concerned, PW8 has stated in her evidence that she recorded the same at the Police Station on the directions of the investigation officer. Therefore, no reliance can be placed upon the extra judicial confession statement.
25. The other available evidence in this case, namely, the evidence of PWs 1 & 4 are also not trustworthy. Because, according to PW4, she was informed about the incident by her daughter within three days from the occurrence, ie., on 18.07.2012, whereas, it is the case of PW1 that his daughter informed him when he was alone with her on 20.07.2012.
26. The only eye witness in this case is the daughter of the deceased, namely, PW2. Though PW2 answered for all other questions raised by the trial Court, she did not speak anything about the occurrence. The fact remains PW2 was in the custody of PWs 1 & 4, after the occurrence. Even then, she did not speak anything against the appellant that he was present and he poured kerosene on the deceased.
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27. Moreover, according to PW7, who is a neighbour cum relative of the accused and admitted the deceased in the Hospital on the date of occurrence, the accused was not present at the time of occurrence.
28. In view of the aforesaid contradictions pointed out by this Court in the prosecution case, we are of the view that the prosecution has not established its case beyond any reasonable doubt and the accused is entitled for benefit of doubt.
29. In fine, ● the conviction and sentence imposed by the learned Sessions Judge, Malaglir Neethimandram, Fast Track Court, Dindigul, in S.C.No.33 of 2013, dated 29.02.2016, are set aside and the appellant is acquitted of the charge.
● since this Court, by order dated 25.04.2019, has set aside the suspension of sentence granted in favour of the appellant, the appellant is directed to be set at 27/29 http://www.judis.nic.in Crl.A(MD)No.391/16 liberty forthwith, unless his detention is required in connection with any other case.
[ M.S.N.J.,] [ B.P.J.,]
26.09.2019
Index : Yes / No
Internet : Yes / No
gk
To
1)The Sessions Judge,
Magalir Neethimandram (Fast Track Court), Dindigul.
2)The Inspector of Police, Palani Taluk Police Station, Dindigul District.
3)The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4)The Section Officer, E.R. / V.R. Section, Madurai Bench of Madras High Court, Madurai.
28/29 http://www.judis.nic.in Crl.A(MD)No.391/16 M.SATHYANARAYANAN, J., and B.PUGALENDHI, J., gk Pre-Delivery Judgment made in Crl.A.(MD)No.391 of 2016 26.09.2019 29/29 http://www.judis.nic.in