Madras High Court
D. Rajangam vs State Rep. By on 24 November, 2006
Author: Prabha Sridevan
Bench: Prabha Sridevan, K.N.Basha
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24/11/2006 CORAM: THE HONOURABLE MRS.JUSTICE PRABHA SRIDEVAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.1905 of 2003 D. Rajangam .. Appellant Accused No.2 Vs. State rep. by Inspector of Police, Valangaiman Circle, Harithuvaramangalam Police Station, Thiruvarur District. (Crime No.98 of 2001) .. Respondent Complainant Prayer Criminal Appeal filed against the judgment dated 02.12.2003 in S.C.No.128 of 2003 on the file of the learned Additional District and Sessions Judge, Fast Track Court No.I, Tanjore. !For Appellant .. Mr.S.Nagamuthu ^For Respondent .. Mr.M. Daniel Manoharan Additional Public Prosecutor :JUDGMENT
(Judgment of the court was delivered by PRABHA SRIDEVAN, J.) The appellant is A-2. Challenging the judgment of the Additional District and Sessions Judge, Fast Track Court No.I, Tanjore, in S.C.No.128 of 2003 by which he was found guilty under Section 302 and 323 of the Indian Penal Code (for short "I.P.C") and awarded life sentence under Section 302 I.P.C. A-1, the wife of A-2, was acquitted on the basis of the benefit of doubt.
2. The prosecution case is as follows :
(i) The deceased and A-2 are neighbours. There was a quarrel between the deceased and A-1 in the morning on 27.12.2001 at about 7.00 a.m. When the deceased went to fetch water A-1 abused her using indecent words and beat her and also pulled her hair. After she was beaten, the deceased went to her residence. On 29.12.2001 at about 7.00 a.m. when she again went to fetch water from the water pipe, A-1 said that the deceased should not draw water from the pipe and pushed her on the road and stamped her on the stomach. When she attempted to get up A-2 husband of A-1, beat her on her back. Unable to bear the blows, the deceased went back to her house and lay down there. Thereafter, A-2 entered the house of the deceased with a kerosene can, poured it on her and set fire to her. She shouted. A-2 ran away. On hearing her screams, her husband and the neighbours rushed inside, poured water on her and put out the flames. Thereafter, the husband of the deceased, P.W.2 Murugesan, P.W.3 and P.W.4 took the deceased to the Tanjore Government Hospital and admitted her.
(ii) P.W.13, the Doctor, was on duty in the emergency ward in the hospital and on enquiry, he was informed by the deceased that her neighbour one Rajangam had beaten her and poured kerosene on her and set fire to her. P.W.13 recorded the Accident Register, Ex.P.8.
(iii) P.W.11, the Head Constable, in Harithuvaramangalam Police Station received the information at about 2.00 p.m. on 29.12.2001 that the deceased has been admitted in the Tanjore Government Hospital with burn injuries.
Immediately, he rushed to the hospital. He recorded the complaint, Ex.P.5, from the deceased and registered the case under Crime No.98 of 2001 under Section 307 I.P.C. and forwarded the First Information Report, Ex.P.6, to the Inspector.
(iv) The Magistrate, P.W.14, on receipt of Ex.P.9 from the Government Hospital at 2.50 p.m. on 29.12.2001 went to the Tanjore Government Hospital. The Duty Doctor identified the deceased and after satisfying herself that the deceased was conscious, P.W.14 recorded the Dying Declaration Ex.P.10.
(v) P.W.16, the Inspector of Police, Harithuvaramangalam Police Station, on 30.12.2001 took up investigation in this case. He went to the scene of occurrence at 8.00 a.m. and prepared the observation mahazar and rough sketch, Exs.P.11 and P.12. He recovered the saree M.O.1, under skirt M.O.2, 5 litre capacity plastic can M.O.3 and match box M.O.4. Thereafter, he went to the Tanjore Government Hospital and recorded the statement from the deceased, P.W.1, her husband and P.Ws.2, 3 and 4 and he gathered from the statements that there were some quarrel between the deceased and the accused.
(vi) On 12.01.2002 at 11.15 p.m., P.W.9 received the information that the deceased had died and forwarded the information to the Valangaiman Inspector and on 13.01.2002 he sent the body of the deceased for postmortem.
(vii) P.W.10 the Head Constable at Harithuvaramangalam Police station altered the offence under Crime No.98 of 2001 to one under Sections 294 (b), 302, 323 and 307 I.P.C. and sent the Express First Information Report, Ex.P.14, to the Magistrate and to the higher authorities.
(viii) P.W.16, on 12.01.2002 on receipt of the information of the death of the injured, forwarded Ex.P.14 altered First Information Report to the Magistrate and conducted inquest on the body of the deceased. Inquest report is Ex.P.15. Thereafter, he sent the body for post-mortem.
(ix) P.W.12, the Post-mortem Doctor, conducted post-mortem on 13.01.2002 at 3.00 p.m. and she found the following injuries on the deceased :
I. Grossly infected Dermo-Epidermal Burns noted over :-
1.Lower half of left side face and the mandibular region - 2 %
2.Front of whole of Neck and athe upper half of sternal region of front of chest
- 4%
3.Whole of front of Abdomen except the waist line - 8%
4.Whole of both lower limbs - 36 %
5.Both upper limbs in patches - 10% Total amounting to 60 % of burns.
II. Peeling of the cuticles, reddening of the skin with evidence of carbonisation noted over the Burns affected areas.
III. Singeing of axillary hair, pubic hair and posterior part of scalp hair noted.
IV. Infected surgically made IV cut down wound noted over the front and medial aspect of both ankle regions.
Extremities : Cyanosed ; Heart - NOrmal in size, All the chambers contans dark coloured fluid blood ; Valves - Normal, Patent ; Coronary vessels - patent ; Great vessels - Normal ; Lungs - c/s both congested and oedematous ; Larynz and Hyoid bone - Intact ; Stomach - Contained about 200 ml bile stained brown colour fluid with no specific Mucosa showed congested in patches ; Liver, Spleen, Kidneys - c/s were congested ; Small Intestine - Empty ; Mucosa - normal ; No specific smell made out ; Bladder - Empty ; Uterus - Normal in size, c/s cavity empty ; Owaries - normal ; Pelvis - Intact ; Brain - surface vessels were congested, c/s brain was found to be oedematous.
P.W.12 gave the Post-mortem Certificate, Ex.P.7. The Doctor is of the opinion that the deceased would appear to have died due to the complications of burns (Viscera were not preserved for chemical analysis since the deceased was in the hospital under continuous treatment for about two weeks.)
(x) P.W.16, in continuation of his investigation, examined and recorded the statements of P.W.12 post-mortem Doctor and P.W.13, Doctor. On 17.01.2002, he arrested A-1 and A-2 and recorded the confessional statement before witnesses. On the same day, he remanded them to custody. He also recorded the statement of P.W.14 who recorded the Dying Declaration. After completing the investigation, he filed the charge sheet against the accused on 14.04.2002.
3. The prosecution has examined 16 witnesses, marked 15 exhibits and produced 4 material objects. Witnesses 1 to 8 turned hostile. The Trial Judge acquitted A-1 and found A-2 guilty of the offences under Sections 302 and 323 I.P.C.
4. The accused was questioned under Section 313 of Code of Criminal Procedure in respect of the incriminating materials made against him through the evidence adduced by the prosecution witnesses. The accused denied his complicity in the crime and stated that he has been falsely implicated in this case.
5. The learned counsel for the appellant submitted that it would be extremely unsafe to rely solely on the Dying Declaration. According to the learned counsel, the Dying Declaration had been recorded in a typewritten format which contains the words that the duty Medical Officer had certified that the patient is conscious-oriented and in a fit state of mind. When as per the admission of P.W.14 the Magistrate, this printed format was taken by the Magistrate even before she reached the hospital, no credence can be given to these words. The learned counsel submitted that the absence of examination of the Doctor who had allegedly certified the state of mind of the deceased in Ex.P.10, the certificate by the Doctor, is inadmissible. The learned counsel also submitted that if this certification of the Doctor is eschewed, there is nothing in Ex.P.10 to show that the Magistrate was satisfied with regard to the state of mind of the deceased ; whether she was conscious and whether she was in a fit state of mind to understand the contents of the Dying Declaration. When the prosecution rests solely on this Dying Declaration and when this is full of infirmities it would not be safe to fasten the guilt on the appellant.
6. The learned counsel also submitted that to the question "cdf;F Vw;gl;l jPf;fhaq;fSf;F ntW ahUk; fhuzkh ? the answer was "ntW ahUk; ,y;iy (ntjts;sp kw;Wk; uh$hq;fk; jtpu) with the words the names included in brackets. According to the learned counsel, this inclusion in the brackets is not convincing and when A-1 has been acquitted and when the Dying Declaration also mentions only A- 2's name as the person who poured kerosene on her, there is an inherent discrepancy even in the Dying Declaration. The learned counsel also submitted that considering the fact that there was a quarrel between two families, the appellant was entitled to the benefit of the Exception 1 and 4. The learned counsel also submitted that without prejudice to the above submission, the appellant is entitled to the reduced sentence under Section 304 (ii) I.P.C. since there is nothing to indicate that the offence was committed intentionally. The learned counsel also submitted that Ex.P.7, Post-mortem Certificate clearly shows that the deceased died due to complications of burns and therefore, A-2 was not directly responsible for the death. For all these reasons, the appeal should be allowed.
7. The learned counsel for the appellant placed reliance on the following decisions for Dying Declaration and for cause of death :
(i) BHARATBHAI VS. STATE OF GUJARAT in (2002) 8 SCC 447 ;
(ii) LAXMAN VS. STATE OF MAHARASHTRA in 2002 SCC (Cri.) 1491 ;
(iii) B.N.KAVATAKAR V. STATE OF KARNATAKA in 1994 SCC (Cri.) 579 ;
8. The learned Additional Public Prosecutor, on the other hand, submitted that Ex.P.10 clearly shows that the Magistrate was satisfied about the mental condition of the deceased. It is not necessary that the Dying Declaration recorded before a Magistrate should be in any particular format nor it is necessary that the Doctor should certify in it. As long as the Dying Declaration indicates that the Magistrate was satisfied regarding the mental condition of its author and the oral testimony corroborates it, the Dying Declaration can be relied on. The learned Additional Public Prosecutor also pointed out that the deceased, on admission by the Duty Doctor, P.W.10, had stated that A-1 had beaten her and also poured kerosene and set fire to her. It was also pointed out by the learned Additional Public Prosecutor that Ex.P.8 contains the name of P.W.2 as the person who admitted the deceased and in the oral evidence of P.W.1 and 2, who turned hostile, there is an admission at least to the extent they had admitted the deceased in the Tanjore Government Hospital. Both of them have also mentioned that P.Ws.3 and 4 had also accompanied them to the hospital. The learned Additional Public Prosecutor also pointed out that in Ex.P.5, there is a clear reference to A-1 pouring kerosene on the deceased and setting fire to her. The learned Additional Public Prosecutor submitted that there is nothing to indicate the wordy quarrel on the other hand Ex.P.5 shows that after A-1 and A-2 had beaten, the deceased had come to her house to lie down. Thereafter, A-2 had come to the house of the deceased with kerosene can to set fire to her. In the circumstances, no case has been made out for a lesser offence.
9. We have considered all the materials on record carefully. P.Ws.1 to 8 have turned hostile. The Dying Declaration is the crucial piece of evidence. Ex.P.10 shows that P.W.14 had asked the deceased several questions to satisfy herself that the deceased was conscious and aware what she is doing. To the question how the burns had been caused to her, she had answered that there was a fight between herself and A-1 and both A-1 and her husband-A-2 had beaten her and thereafter, A-2 poured kerosene on her and set fire to her. She has also said clearly, to the question where her husband was at that time, that her husband was not at home and he was in the fields. Thereafter, the Magistrate had recorded as follows :
"The above statement was recorded by me as the words of the injured readover to her and found by her correct. No Policeman or private individual was present during that time."
10. The decision relied by the learned counsel for the appellant in BHARATBHAI VS. STATE OF GUJARAT in (2002) 8 SCC 447 regarding the Dying Declaration, wherein the Hon'ble Supreme Court held that, "writing the certificate and making the memorandum are mandatory and these matters are not left to be proved by oral evidence".
This Judgment cannot be applied to the instant case since it was made in the context of a confessional statement. Here, we are dealing with Dying Declaration.
11. In LAXMAN VS. STATE OF MAHARASHTRA in 2002 SCC (Cri.) 1491 five Judges Bench resolved the conflict with regard to the requirement of a Doctor's certification for relying on a Dying Declaration and the Supreme Court held that, "3. .... There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is not specified statutory form for such recording. .... 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. ....
4..... 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. ...."
They overruled the decision in PAPARAMBAKA ROSAMMA V. STATE OF A.P. in (1999) 7 SCC 695 wherein it was held that the absence of medical certification that the injured was in a fit state of mind, it would be very much risky to accept the subject of satisfaction of a Magistrate. In the instant case there is enough evidence to show that the Magistrate had satisfied herself with regard to the state of mind of the deceased.
12. It is well settled that the Dying Declaration recorded by a Magistrate need not be in a particular format. The fact that the Magistrate read out what was recorded by her and the accused had acknowledged that what was recorded was correct would clearly indicate that the Magistrate was satisfied that the deceased had comprehended the contents of the Dying Declaration. In addition, in her oral evidence she has clearly stated that the deceased was conscious at the time of the Dying Declaration. In the cross-examination, though she has stated that she had not recorded the questions and answers, the fact remains that Ex.P.10 shows that the Magistrate has recorded the questions and answers. In addition, there is Ex.P.8, the Accident Register the earliest piece of evidence, in which the deceased has clearly told the Duty Doctor that it was A-1 who poured kerosene on her and set fire to her.
13. As regard to the cause of death the learned counsel for the appellant placed reliance on the decision in B.N.KAVATAKAR V. STATE OF KARNATAKA in 1994 SCC (Cri.) 579, wherein it was held that when the death was the consequence of septicaemia secondary injuries, the offence would come only punishable under Section 326 I.P.C. Perhaps, that was on the facts of the case. In this case, the Doctor has clearly stated that the death due to complications of the burns. Therefore, the above case will not apply.
14. It is relevant to note that in RAGHBIR SINGH VS. STATE OF HARYANA in 2000 CRL.L.J. 2463, the Supreme Court held that when the offence shows peritonitis, renal failure, speticemia were directly relatable to the bullet injury, then the conviction for murder was liable to be confirmed. This decision supports the case of the prosecution.
15. As rightly contended by the prosecution, Ex.P.5 shows that there was no immediate provocation on the side of the deceased that A-2 to react in this manner. On the other hand, the deceased was lying down in her house after having been beaten by A-1 and A-2 unable to bear the pain. When A-2 entered the house of the deceased with the kerosene can and poured it on her and set fire to her. In the circumstances, we are not inclined to accept the submissions of the learned counsel for the appellant that this would come under Exception or that the offence is a lesser one.
16. For the foregoing reasons, the appeal is dismissed. The conviction and sentence imposed on the appellant by the learned Additional District and Sessions Judge, Fast Track Court No.I, Tanjore, in S.C.No.128 of 2003, dated 02.12.2003, is hereby confirmed.
gg To
1. The Additional District and Sessions Judge, Fast Track Court No.I, Tanjore.
2. - do - thro" The Principal Sessions Judge, Tanjore.
3. The Inspector of Police, Manavalakurichi Police Station, Kanniyakumari.
4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.