Madras High Court
B.Douglas Marx vs State By The Deputy Superintendent Of ... on 7 July, 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.07.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
CRIMINAL APPEAL (MD).No.208 of 2007
B.Douglas Marx ... Appellant
Vs
State by the Deputy Superintendent of Police,
Karur, Karur District,
in Crime No.11 of 2005,
on the file of the All Women Police Station,
Karur. ... Respondent
PRAYER
Appeal is filed under Section 374 of the Code of Criminal Procedure,
to call for the records of the learned Assistant Sessions Judge, Karur in
S.C.No.21 of 2006 and set aside the conviction and sentence order dated
11.04.2007 and acquit the appellant herein.
!For Appellant : Mr.AR.Jaya Rhuthran
For Mr.Isaac Mohanlal
^For Respondent : Mr.C.Mayil Vahana Rajendran
Additional Public Prosecutor
:JUDGMENT
The appellant is the first accused in S.C.No.21 of 2006, on the file of the learned Assistant Sessions Judge, Karur. Altogether, there were three accused. The accused Nos.2 and 3 were his parents. The appellant/the first accused stood charged for the offences under Sections 498(A) and 304(B) of the Indian Penal Code and the accused Nos.2 and 3 stood charged for the offences under Sections 498(A) and 304(B) r/w Section 109 of the Indian Penal Code. By Judgment dated 11.04.2007, the Trial Court acquitted the accused Nos.2 and 3, however convicted the first accused for the offences under Sections 498(A) and 304(B) of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- in default to undergo simple imprisonment for six months for the offence under Section 498(A) of the Indian Penal Code and to undergo rigorous imprisonment for ten years for the offence under Section 304(B) of the Indian Penal Code. As against 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 Angala Parameshwari. She was working as a Police Constable in Karur District. The accused is also a Police Constable and during the relevant period, he was working in Trichirappalli Railway Protection Force. It is admitted that they had fallen in love with each other and without the knowledge of their parents, they got married and registered the same also. After the said marriage, without the knowledge of her parents, she was staying in Trichirapplli along with the accused in his Police Quarters. After six months, their marriage came to light. Thereafter, the parents of the deceased arranged for a formal marriage in a local Church on 22.02.2004. After such formal marriage, they continued to live as husband and wife and a child was also born out of the said wedlock. It is further alleged that during their matrimonial life, the accused harassed her demanding dowry on many occasions. While so, on 21.04.2005, they together went to Chennai to the Office of the Director General of Police, where she made a request in writing for her transfer to Trichirappli so as to live in Trichirappalli along with her husband. After returning to Karur, the accused was with the deceased at her house. It is alleged that at that time, she poured kerosene on her body and set herself ablaze.
2.1. On sustaining injuries, the deceased ran out of the house unable to bear the pain. The neighbours put out the fire. Then, she was taken to the Hospital. PW-13, Dr.N.Velusamy, was on duty on 23.04.2004 at 02.20 PM at Amaravathi Hospital at Ramanuja Nagar, which is a private hospital. The deceased was brought with burn injuries to the said hospital. PW-2, the sister of the deceased accompanied her. When PW-13 enquired the deceased, she told that while she was trying to light the kerosene stove, unexpectedly, it burst and in the process, flames engulfed her and as a result of the same, she sustained injuries. PW-13 treated her in the hospital between 23.04.2005 and 26.04.2005. According to him, she had sustained 80 to 85% of injuries. On 26.04.2005, at about 01.05 PM, she succumbed to the injuries.
2.2. While the deceased was undergoing treatment in Amaravathi Hospital at Ramanuja Nagar, on intimation from the hospital authorities, PW-12, the learned Judicial Magistrate No.II, Karur, rushed to the said hospital. She found that the deceased was conscious and she was in a position to make a dying declaration. The doctor, who was treating the deceased, certified that the deceased was in a fit state of mind to make statement. PW-12 was satisfied that she was in a fit state of mind to make statement. Therefore, she recorded the statement of the deceased. EX-P7 is the statement and EX-P6 is the intimation from the hospital authorities to her. In the said dying declaration, the deceased had stated that she was trying to light the kerosene stove. At that time, the Can containing the kerosene was by the side of the stove. She has further stated that suddenly, the Stove flamed up. In the said process, the flames engulfed her. She ran out of the house with flames. Her husband, viz., the appellant, attempted to put out the fire, in which he also sustained burn injuries. In the said dying declaration, she has further stated that her husband, viz., the appellant, told her that his parents had earlier instructed him to get divorce from her so that he could marry some other woman with dowry of 50 sovereigns and Rs.50,000/- cash.
2.3. Shortly, thereafter, PW-16, the Inspector of Police, on intimation from the hospital authorities, proceeded to the hospital and recorded her statement. On returning to the Police Station, on the basis of the said statement, she registered a case in Crime No.11 of 2005, under Section 498(A) of the Indian Penal Code, at 06.00 PM. This statement is also a dying declaration, where she has stated that since she was harassed by the accused demanding dowry, out of frustration, she poured kerosene on herself and with the use of a matchstick, she set fire to herself. She has further stated that frequently, there used to be quarrel between the appellant and the deceased;
on 23.04.2005, there was a quarrel between them; a week before the date of occurrence, the accused had taken away four sovereigns of gold chain belonging to her and the accused told her that her father-in-law and mother- in-law had instructed him to divorce her so that he could marry another girl with dowry of 50 sovereigns of gold jewels and Rs.50,000/- cash.
2.4. After the death of the deceased, due intimation was given to the Revenue Divisional Officer, [PW-11, who conducted inquest on the body of the deceased]. Then, the body was sent for postmortem. PW-15, Dr.Pushparani, conducted autopsy on the body of the deceased and opined that the death was due to extensive burn injuries.
2.5. The accused had also sustained injuries in the said occurrence. He went to the Amaravathi Hospital at Ramanuja Nagar, along with PW-2 and the deceased. PW-13 treated him. He found that there was 20% of burn injuries on him. After the report of the Revenue Divisional Officer, the investigation was taken by PW-17, the then Deputy Superintendent of Police. On completing the investigation, he laid charge sheet against the accused. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment.
2.6.When the accused were questioned in respect of the charges, they pleaded innocence. In order to prove the charges, the prosecution examined as many as 17 witnesses and exhibited 16 documents, besides three Material Objects. PW-1 to PW-3 are the mother, sister and father respectively of the deceased. All these three witnesses have stated that it was a love marriage between the first accused and the deceased. PW-1 has stated that frequently the accused used to quarrel with the deceased demanding dowry. PW-2 and PW-3 have also stated so. PW-4 is the neighbour, who has stated that there was some quarrel between the accused and the deceased. PW-5 is the one, who arranged for an auto for shifting the deceased to the hospital. PW-6 is her yet another neighbour, who has not stated anything incriminating against the accused. PW-7 is the witness, who has spoken about the preparation of the Observation Mahazer and the Rough Sketch. PW-8 has spoken about the photographs of the dead body taken by him. PW-11, the Revenue Divisional Officer, who has spoken about the inquest held by him. PW-12, the learned Judicial Magistrate, No.II, Karur, who has spoken about the dying declaration recorded by her. PW-13 to PW-15 are the doctors. PW-13 has spoken about the injuries and the treatment given to the deceased as well as to the accused. PW-14 is the doctor, who certified that the deceased was in a fit state of mind to make the statement. PW-15, who conducted autopsy on the body of the deceased, opined that the death was due to extensive burn injuries. PW-16 has spoken about the recording the statement of the deceased and the registration of the case. PW-17 has spoken about the investigation done.
2.7. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against them, they denied the same as false. They did not choose to examine any witness. However, the Accident Register in respect of the treatment given to the first accused was marked as EX-D1. Having considered all the above materials, the Trial Court acquitted the accused Nos.2 and 3, however, convicted the first accused 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. I have heard the learned counsel for the appellant, the learned Additional Public Prosecutor for the respondent and also perused the records carefully.
4. The learned counsel for the appellant would submit that there are three dying declarations available in this case. The first dying declaration is the one given to the doctor, the second dying declaration is the one given to the learned Judicial Magistrate No.II, Karur and the third dying declaration is the one given to the Inspector of Police. All the three dying declarations are contradicting each other. The learned counsel would further submit that the earliest dying declaration, which was the one given to the doctor, should be given weightage of, wherein the deceased has stated that she was entrapped by fire, accidentally, when she was trying to light the kerosene stove. Thus, according to the learned counsel, the death was purely accidental and therefore, the conviction imposed by the Trial Court on the appellant under Section 304(B) of the Indian Penal Code is not sustainable.
5. So far as the conviction under Section 498(A) of the Indian Penal Code is concerned, the learned counsel for the appellant would submit that absolutely, there is no evidence for the same. The learned counsel has taken me through the cross-examination of PW-1 to PW-3, wherein they have tacitly admitted that the deceased and the accused were living happily. They have further stated that one day prior to the occurrence, the deceased and the accused together went to Chennai to the Office of the Director General of Police, where she made a request in writing seeking transfer to Trichirappli so as to live in Trichirappalli along with her husband. Thus, according to the learned counsel, the demand for dowry and the harassment made by the witnesses are very vague. So far as the second dying declaration of the deceased is concerned, wherein she stated about the dowry demand, the learned counsel would submit that it is admitted by PW-2 and PW-3 that they were together with the deceased for a quite some time, until the learned Judicial Magistrate came and the police came. From this, according to the learned counsel, the deceased would have been tutored by these relatives. Therefore, according to the learned counsel, regarding this part of the dying declaration, no reliance could be made. Thus, the learned counsel would submit that absolutely, there is evidence to sustain the conviction under Section 498(A) of the Indian Penal Code also.
6. But, the learned Additional Public Prosecutor would vehemently oppose this Criminal Appeal. According to him, the first dying declaration cannot be given weightage of, because, the deceased would have omitted to say about the occurrence, as her husband was with her. The learned Additional Public Prosecutor would further submit that the dying declaration given to the learned Judicial Magistrate No.II, Karur and the dying declaration given to the Inspector of Police should be given weightage of. According to him, there are no contradictions between these two dying declarations. The learned Additional Public Prosecutor would further submit that based on these two dying declarations and the evidences of PW-1 to PW-3, the conviction of the appellant under Section 304(B) of the Indian Penal Code is sustainable. Similarly, the offence under Section 498(A) of the Indian Penal Code has also been proved by the evidences of PW-1 to PW-3 and the said dying declarations, the learned Additional Public Prosecutor contended.
7. I have considered the above submissions. As rightly pointed out by the learned counsel for the appellant, the earliest dying declaration was the one given to the doctor, viz., PW-13. At that time, she was very much in the company of PW-2. Nowhere, it is in evidence that her husband was with her. This being the earliest dying declaration, the same should carry weightage of. When she was asked by the doctor, she has stated that when she was trying to light the kerosene stove, it suddenly burst and in the process, the flames engulfed her. After sometime, the learned Judicial Magistrate had gone to the hospital and recorded the dying declaration, in which she has stated that she was attempting to light the kerosene stove. She has further stated that at that time, a Can with kerosene was by the side of the stove. This is in tune with the earlier dying declaration given to the doctor. She has further gone to say that when she was trying to light the kerosene stove, suddenly, there was fire, in which she sustained injuries. Here, she has not stated that she set fire to herself by pouring kerosene. But, quite strangely, in the statement made to PW-16, the Inspector of Police, she has told that out of frustration in life on account of the dowry demand and the harassment, she poured kerosene on her body and set fire to herself with the use of a matchstick. Thus, according to the statement made to, PW-16, the Inspector of Police, which is also a dying declaration, she set fire to herself, whereas, according to the first and second dying declarations, it was accidental. Thus, absolutely, there is no clear evidence that the deceased committed suicide. Thus, the offence under Section 304(B) of the Indian Penal Code has not been proved at all.
8. Now, turning to the conviction under Section 498(A) of the Indian Penal Code, of course, PW-1 to PW-3 have stated, in chief examination, in a very vague manner, that on few occasions, there were quarrels between the accused and the deceased. But, in the dying declaration, she has stated that her father-in-law and mother-in-law had instructed the accused to get divorce from her so that he could marry another girl with dowry of fifty sovereigns of gold jewels and Rs.50,000/- cash. As rightly pointed out by the learned counsel for the appellant, since the accused 2 and 3 have been acquitted, disbelieving this version, the appellant should also be acquitted giving similar treatment. Apart from the above, a reading of the cross-examination of PW-2 shows that the accused and the deceased were living happily and even one day prior to the date of occurrence, they together went to Chennai to the Office of the Director General of Police, where she made a request in writing for her transfer to Trichirappli so as to live in Trichirappalli along with her husband. These facts would go to show that the very vague statements made by PW-1 to PW-3 that the accused demanded dowry and harassed her are baseless, which cannot be given weightage of.
9. So far as the cause of death is concerned, there is no consistency between these three witnesses. PW-1 has stated that when she enquired the deceased for the injuries sustained by her, the deceased told her that her husband was responsible for the same. But, during cross-examination, PW-1 has stated that the deceased told that she did not know as to how she got fired. PW-1, in chief examination, has stated that the deceased told her that she poured kerosene on her body, but she did not set fire to herself. She has further stated that the deceased told that she did not know as to how she got fired. Thus, the evidences of these witnesses are all full of contradictions. Above all, it is seen from the records that the accused was very much present at the time of occurrence and he made an attempt to put out the fire and in the process, he also sustained burn injuries. This would go to probabilise the innocence of the accused. Thus, even to prove the charge under Section 498(A) of the Indian Penal Code, there is no clear evidence on the side of the prosecution.
10. In view of the foregoing discussions, I conclude that the prosecution has failed to prove the case beyond reasonable doubts and therefore, the appellant is entitled for acquittal.
11. In the result, this Criminal Appeal is allowed, the conviction and sentence imposed on the appellant by Judgment dated 11.04.2007, made in S.C.No.21 of 2006, on the file of the learned Assistant Sessions Judge, Karur, is set aside and the appellant is acquitted. Fine amount, if any, paid by the appellant shall be refunded to him. Bail bond executed by the appellant shall stand terminated.
To
1.The Deputy Superintendent of Police, Karur, Karur District, Karur.
2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
3.The Assistant Sessions Judge, Karur..