Madras High Court
Baskaran vs State on 11 July, 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 11.07.2016 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR. JUSTICE V.BHARATHIDASAN Crl.A.No.426 of 2015 Baskaran .. Appellant Vs State, by the Inspector of Police Banavaram Police Station Vellore District. .. Respondent Appeal filed u/s.374 Cr.P.C., against the Judgment of conviction and sentence passed by the learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Vellore, in S.C.No.93 of 2013 on 29.06.2015. For Appellant : Mr.S.V.Karthikeyan, Legal Aid Counsel For Respondent : Mr.M.Maharaja, Additional Public Prosecutor JUDGMENT
[Judgment of the court was delivered by V.BHARATHIDASAN, J.,] The sole accused in S.C.No.93 of 2013 on the file of the learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Vellore, is the appellant herein. He stood charged for offence under Sections 450, 376 and 302 IPC. The trial Court convicted the appellant under Section 302 IPC and sentenced him to undergo life imprisonment and also to pay a fine of Rs.2,000/-, in default to undergo two months simple imprisonment; convicted him under Section 376 IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- in default to undergo two months simple imprisonment and also convicted him under Section 450 IPC and sentenced him to undergo two years rigorous imprisonment and to pay a fine of Rs.500/- in default to undergo one month simple imprisonment. The trial Court, however, ordered all the sentences to run concurrently. Challenging the above said convictions and sentences, the present Appeal has been filed.
2. The case of the prosecution, in brief, is as follows:-
(i) The deceased in this case, one Santhiya, is the youngest daughter of PW.4 and PW.9. They are residing at Soorai Village in Arakonam Taluk. The accused also belongs to the same village. There is previous enmity between the accused family and the deceased family. While so, on 09.08.2011, at about 2 p.m, the deceased was in her house. PW.4, father, left for rations and PW.9, mother went out for coolie work. At that time, the accused went inside the house of the deceased, sexually assaulted her and thereafter, poured kerosene and set fire on her.
(ii) PW.1, a neighbour to the deceased's house, after seeing the deceased with fire, doused the fire with the help of others. At that time, PW.4 father also came there and the deceased told him that the accused ruined her life. Thereafter, the deceased was taken to Government Hospital, Sholinghur.
(iii) PW.11 Assistant Civil Surgeon, working in Government Hospital, Sholinghur, received the deceased and found 80% burn injuries on her and referred her to Kilpauk Government Hospital, Chennai, and issued Accident Register (Ex.P6). At that time, the deceased told PW.11 that a known person poured kerosene and set fire on her.
(iv) PW.15, Sub-Inspector of Police, on receipt of a memo from Sholinghur Government Hospital rushed there and recorded the statement of the deceased (Ex.P11) and based on the same, he registered a case in Crime No.203 of 2011 for the offence under Sections 376 and 307 IPC. Ex.P12 is the First Information Report.
(v) PW.16 Judicial Magistrate, Sholingur, after receipt of a memo from the respondent police, proceeded to the hospital and after being satisfied that the deceased was conscious and in a fit state of mind to give statement and also obtaining a certificate from the Doctor to that effect, recorded the statement of the deceased, wherein the deceased said that due to previous enmity, the accused raped her and after that, he poured kerosene and set fire on her.
(vi) PW.18 Inspector of Police of the respondent police, on receipt of the First Information Report, commenced investigation, proceeded to the scene of occurrence and prepared an Observation Mahazar (Ex.P15) and also a rough sketch (Ex.P16). On 09.08.2011 at about 08.30 p.m, PW.18 arrested the accused and on such arrest, the accused voluntarily gave a confession and thereafter, PW.18 sent the accused to the judicial custody. On 10.08.2011, the deceased succumbed to injury. Hence, PW.18 altered the offence under Sections 376 and 302 IPC and the altered First Information Report is Ex.P17. Then PW.18 proceeded to the hospital and conducted inquest on the dead body, between 10 p.m and 12 p.m. Ex.P18 is the inquest report. Then he sent a request for conducting postmortem on the dead body.
(vii) PW.14, Doctor working in Medico- Legal Department, Vellore Government Hospital, conducted postmortem (autopsy) on the dead body on 10.08.2011, between 12.55 and 01.55 p.m and found the following injuries:-
Injuries noted:
1.Multiple scratch abrasions (finger-nail) noted over both cheeks, both wrists and forearms, over both the breasts & areola and lower part of abdomen, upper and inner part of both thighs. Grazed abrasions on the back of chest and gluteal region.
2.Contusions on the cheeks and on the inner aspect of both lips with tearing of gingival margins of upper and lower teeth of both jaws in front. (Both incisors)
3.Contusions over both the breasts and lower part of both chest
4.Local examination of the external genitalia : Hymen torn in 3, 6 and 9 o' clock positions The labia minora shows a laceration 1 x 1 x 1 cm on both sides. The vault of the vagina is congested with dried blood stains. The external os shows a laceration 2 x 1 x 1 cm. There is a perineal tear on (L) side 4 cm long x 1 cm x 1 cm
5.Superficial burns seen over the face, neck front and back, chest and abdomen, both upper limbs back of chest and abdomen, both lower limbs front and back.
Peritoneal and pleural cavities : Empty. Heart : Normal. Coronaries : Patent. Lungs : Congested and edematous. Hyoid bone : Intact. Stomach : contains 200 gms of partially digested cooked rice food material with nil specific smell. Mucosa : Congested. Small Intestine : contains 30 ml of bile stained fluid with nil specific smell. Mucosa : Congested. Liver, spleen and kidneys : Congested. Bladder : Empty. Uterus : Normal. Cut Section : Empty. Brain : Congested and edematous. Ex.P9 is the postmortem report. PW.14 - Doctor was of the opinion that the deceased appeared to have died of complications of burn injuries. Injuries pointing to sexual assaults were also noted in the body by the postmortem Doctor. Thereafter, PW.18 continued the investigation and after examining the postmortem Doctor and other witnesses, he completed the investigation and filed charge sheet.
3. Considering the above materials, the trial Court framed charges as mentioned in paragraph-1 of the judgment. The accused denied the same. In order to prove the same, the prosecution examined 18 witnesses and exhibited 22 documents. No material objects were marked on the side of prosecution.
4. Out of the witnesses examined, PW.1 is a neighbour of the deceased and according to him, he saw the deceased running out of her house with fire and he doused the fire, with the help of others and sent her to the hospital. PW.2 is a witness to Observation Mahazar. PW.3 is a witness to the arrest of the accused and the confession statement, Ex.P2 given by him. PW.4 is the father of the deceased. He has spoken about the motive and assault. According to him, the deceased told him that the accused did everything. PW.5 is the uncle of the deceased, who accompanied the deceased to Sholinghur Government Hospital. PW.6 is the Scientific Officer, now working in the Forensic Science Department, Chennai. He has stated that he examined the visceral materials and filed his report. PW.7 is the Assistant Director, now working in Salem Regional Forensic Office, and he has stated that he examined the bloodstained material objects and filed his report. PW.8 is only a hearsay witness. PW.9 is the mother of the deceased. PW.10 is also a hearsay witness. PW.11 is the Doctor working in the Government Hospital, Sholinghur, who admitted the deceased in the hospital and issued Accident Register Ex.P6. PW.12 has turned hostile. PW.13 has also turned hostile. PW.14 - Doctor has spoken the conduct of postmortem on the dead body and issuance of postmortem certificate (Ex.P9). He also stated that he examined the accused regarding his potency and gave a certificate (Ex.P7). PW.15 is the Sub-Inspector of Police, who recorded the statement of the deceased and registered the First Information Report (Ex.P12). PW.16 is the Judicial Magistrate, who recorded the dying declaration (Ex.P14), of the deceased. PW.17 is the Head Constable, who identified the body for postmortem. PW.18 is the Investigating Officer who has stated that he recorded the statement of witnesses, arrested the accused and after completing investigation, filed charge sheet.
5. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., the accused denied the same. However, the accused did not examine any witness nor mark any documents.
6. Considering the above materials, the trial Court convicted and sentenced the accused as stated in paragraph-1 of the judgment. Challenging the above said conviction and sentence, the present appeal has been filed.
7. Heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor and perused the records carefully.
8. It is a case based on circumstantial evidence. The prosecution mainly relies on the dying declarations of the deceased. There are three dying declarations. PW.11 is the Doctor, working in Sholinghur Government Hospital, who admitted the deceased in the hospital. In his evidence, he has stated that at the time of admission, the deceased told him that a known person poured kerosene and set fire on her. Subsequently, the deceased has given judicial dying declaration before PW.16, the learned Judicial Magistrate, Sholingur. The learned Judicial Magistrate has stated in his evidence that after receipt of the memo from the hospital, she proceeded to the hospital at about 4.30 p.m on 09.08.2011 and after being fully satisfied that the deceased was conscious and in a fit state of mind to give statement, he recorded the statement of the deceased. It is his further evidence that before recording the statement, she also obtained a certificate from the Doctor, who has certified that the deceased was conscious and in a fit state of mind to give statement. In the judicial dying declaration, the deceased categorically narrated the facts and told that the accused trespassed into their house, when her father and mother went out for work and due to previous enmity, the accused came to their house and raped her and thereafter, poured kerosene and set fire on her and ran away. Subsequently, the deceased also given a statement before PW.15 Sub Inspector of Police (Ex.P11), in which also she has categorically stated that it was this accused, who raped her and also poured kerosene and set fire on her.
9. In all the above three dying declarations, the deceased had consistently stated that it was only this accused, who raped her and subsequently, set fire on her. Judicial dying declaration has been recorded by the learned Judicial Magistrate, after being satisfied that the deceased was in good conscious and in a fit state of mind to give statement. To strengthen her satisfaction, she has also obtained a certificate from the Doctor to that effect and properly recorded the dying declaration. Hence, there is no reason to disbelieve the same. It is settled principle of law that dying declaration alone can be the basis for convicting an accused, provided it is voluntary, genuine, consistent and untutored. In the case on hand, We are fully satisfied that the dying declarations given by the deceased are voluntary, genuine and also consistent and they do not leave even a slightest doubt in the mind of the Court to disbelieve them. Therefore, We are of the considered view that the prosecution has proved its case beyond any reasonable doubt. The trial Court is right in convicting the appellant and sentencing him as detailed above, and We do not see any reason at all to overturn the well considered Judgment of the trial Court. Hence, the appeal fails and the same is liable to be dismissed.
10. In the result, Criminal Appeal is dismissed. The conviction and sentence imposed on the accused on 29.06.2015 in S.C.No.93 of 2013 on the file of learned Sessions Judge, Magalir Neethi Mandram (Fast Track Mahila Court), Vellore are confirmed. The period of sentence already undergone by the accused shall be given set off under Section 428 Cr.P.C. for the purpose of Section 433-A Cr.P.C.
11. While parting with the case, we appreciate the services rendered by Mr.S.V.Karthikeyan, learned Counsel, who appeared on behalf of the appellant, as Legal Aid Counsel. The Legal Services Authority is directed to pay his remuneration.
[S.N.J.,] [V.B.D.J.,]
11.07.2016
Index : Yes/no
To
1. The Sessions Judge,
Magalir Neethi Mandram
(Fast Track Mahila Court),
Vellore.
2. The Inspector of Police
Banavaram Police Station
Vellore District.
3.The Public Prosecutor,
High Court, Chennai.
S.NAGAMUTHU,J.
and
V.BHARATHIDASAN, J.
mra
Judgment in
Crl.A.No.426 of 2015
04.07.2016
http://www.judis.nic.in