Madras High Court
Saravanan vs State By Inspector Of Police on 17 August, 2015
Author: A.Selvam
Bench: A.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.08.2015 CORAM: THE HONOURABLE MR.JUSTICE A.SELVAM Criminal Appeal No.80 of 2007 --- Saravanan ... Appellant/Accused vs. State by Inspector of Police Pudupettai Police Station Crime No.11 of 2005 ...Respondent Criminal Appeal filed under Section 374 of Criminal Procedure Code, 1973 against the judgment dated 29.11.2006 on the file of Additional Sessions Judge (Fast Track Court No.II) Cuddalore passed in S.C.No.344 of 2006. For appellant : Mr.S.Kalyanaraman For respondent : Mr.P.Govindarajan Additional Public Prosecutor JUDGMENT
Challenge in this Criminal Appeal is to the conviction and sentence dated 29.11.2006 passed in Sessions Case No.344 of 2006 by the Additional District and Sessions Court (Fast Track Court No.2), Cuddalore.
2. The contraction of the case of the prosecution is that the accused by name Saravanan is a paramour of the deceased Jothi. The accused has had suspicion over the deceased to the effect that she is having illicit intimacy with others. On 06.01.2005, with intention to murder her, at about 11 p.m., has entered into the house of the deceased and suddenly doused kerosene on her person and set her ablaze. After occurrence, the then injured (deceased) has been taken to Government Hospital, wherein, she has given a statement and the same has been registered in Crime No.11/2005 under Section 307 of the Indian Penal Code.
3. The statement alleged to have been given by the then injured (deceased) has been marked as Ex.P.2.
4. On receipt of Ex.P.2, the Investigating Officer viz., P.W.22 has taken up investigation, examined connected witnesses and on 19.01.2005, the then injured has passed away and subsequently, he altered sections of law and continued investigation and also made arrangements to conduct autopsy on the body of the deceased and P.W.6 has conducted autopsy on the body of the deceased and he found the following external and internal injuries:-
External Injuries:-
1. 2 suture mark left ankle ;
2. epidermo-dermal burns over
- Neck 70% burns chest and abdomen arm and forearm Back both thigh.
Internal Examination:- NAD.
5. The Post Mortem certificate has been marked as Ex.P.11. The Investigating Officer, after completing investigation has laid a final report on the file of the Judicial Magistrate Court, Panruti and the same has been taken on file in P.R.C.No.11/2005.
6. The Judicial Magistrate, Panruti, after considering the fact that the offence alleged to have been committed by the accused is triable in Sessions case, has committed the case to the trial court and the same has been taken on file in Sessions Case No.344/2006.
7. The trial court, after hearing both sides and upon perusing the relevant records has framed a charge against accused under Section 302 of the Indian Penal Code (hereinafter called as IPC) and the same has been read over and explained to him. The accused has denied the charge and claimed to be tried.
8. On the side of the prosecution, Prosecution Witnesses 1 to 22 have been examined and Exhibits P.1 to 18 and M.Os.1 to 3 have been marked.
9. 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 let in on the side of the accused.
10. The trial court, after hearing both sides and also upon perusing the relevant evidence on record has found the accused guilty under Section 304(I) of the IPC and sentenced him to undergo 10 years Rigorous Imprisonment and also imposed a fine of Rs.1000/- with usual default clause. Against the conviction and sentence passed by the trial court, the present Criminal Appeal has been preferred at the instance of the accused as appellant.
11. The learned counsel appearing for the appellant/accused has made an abortive attempt to the effect that the occurrence has taken place on 06.01.2005, whereas, the deceased has passed away on 19.01.2005 and if she has been given proper treatment, the result would be otherwise and the doctor who conducted autopsy has found pus in the dead body and the trial court has failed to look into the same.
12. In order to controvert the contention put forth on the side of the appellant/accused, the learned Additional Public Prosecutor has contended that in the instant case, enormous evidence is available on the side of the prosecution for coming to a conclusion that the death has occurred only due to overtacts of the appellant/accused and the trial court, after considering the plenitude of the evidence available on record has rightly found him guilty under Section 304(I) of the IPC and therefore, the argument put forth on the side of the appellant/accused cannot be accepted.
13. The specific case put forth on the side of the prosecution is that the appellant/accused is nothing but a paramour of the deceased; since he has had suspicion in his mind with regard to fidelity of the deceased, he entered into her house and suddenly doused kerosene on her person and set her ablaze.
14. As pointed out earlier, the entire case of the prosecution hinges upon Ex.P.2, the statement alleged to have been given by the then injured (deceased), wherein, it has been vividly stated to the effect that both the then injured (deceased) and accused have had illicit intimacy with each other and since he has had such kind of suspicion over her on the date of occurrence and also in the place of occurrence, he doused kerosene on her person and set fire on her.
15. The statement alleged to have been given by the then injured (deceased) has been registered in Crime No.11/2005. At this juncture, a nice legal question arises as to whether Ex.P.2, the statement of the deceased can be treated as dying declaration.
16. Section 32(1) of the Indian Evidence Act, 1872 clearly reads to the effect that if a person who has given statement, passed away subsequently, wherein, cause of death has been mentioned, the same can be treated as dying declaration.
17. It is an everlasting principle of law that if there is any dying declaration, the same need not be corroborated by way of adducing separate evidence. Therefore, Ex.P.2 itself is a clear dying declaration and the same can be a basis for coming to a conclusion that the occurrence has taken place as spoken by the prosecution.
18. Apart from Ex.P.2, the prosecution has marked another dying declaration alleged to have been given by the then injured (deceased) before the concerned Judicial Magistrate viz., Ex.P.6, wherein also, it has been clearly mentioned to the effect that in the place of occurrence, the accused has doused kerosene on the person of the then injured (kerosene) and set fire on her.
19. It is not an adulation to say that no inconsistency is in existence in between the two dying declarations. Since no inconsistency in between the two dying declarations, it is needless to state that the prosecution has clearly established its case.
20. As stated earlier, the attempt made on the side of the appellant/accused is that if proper treatment has been given to the then injured (deceased), the result would be otherwise. It is an admitted fact that the doctor who conducted autopsy on the body of the deceased has simply stated that he has found pus on the body of the deceased and that itself would not be sufficient for coming to a conclusion that proper treatment has not been given to the then injured (deceased). Therefore, viewing from any angle, the contention put forth on the appellant/accused is sans merit.
21. The learned counsel appearing for the appellant/accused, as a residual contention, contended to the effect that the appellant/accused has attained only an age of 28 years at the time of occurrence and therefore, certain leniency may be given in awarding sentence.
22. Considering the age of the appellant/accused and also considering that the entire occurrence has taken place on the spur of the moment, this Court is of the view that awarding 7 years Rigorous Imprisonment would meet the ends of justice and with the above modification, this Criminal Appeal is liable to be allowed in part.
In fine, this Criminal Appeal is allowed in part. The conviction passed by the trial court is confirmed. The sentence imposed against the appellant/accused by the trial court is modified as follows:-
The appellant/accused is sentenced to undergo 7 years Rigorous Imprisonment instead of 10 years Rigorous Imprisonment. No modification with regard to fine amount. If the appellant/accused is on bail, the trial court is directed to take appropriate steps so as to incarcerate him in prison to serve out the remaining period of sentence.
17.08.2015 Internet:no nvsri To
1. The Inspector of Police Pudupettai Police Station Crime No.11 of 2005
2.The Additional Sessions Judge (Fast Track Court No.II) Cuddalore.
A.SELVAM, J.
nvsri Crl.A.No.80 of 2007 17.08.2015