Madras High Court
Packiam vs State Rep. By The Inspector Of Police on 24 July, 2003
JUDGMENT A.S. Venkatachalamoorthy, J.
1. The appellant herein along with another was charged under Section 302 read with 34 I.P.C. for causing the death of one Karthigaiselvi by pouring kerosene on her and set fire at about 11.00 a.m. on 17.10.1998 at the village called Thoppulampatti. The learned Principal Sessions Judge, Madurai by his judgment dated 10.1.2001 in S.C. No. 143 of 2000, found the appellant/A-1 guilty under Section 302 I.P.C. and sentenced him to undergo life imprisonment. However, the other accused was acquitted. The said judgment is under challenge in this appeal.
2. The case of the prosecution as borne out from the oral and documentary evidence can be narrated as under:
(a) PW-1 Vellaian and PW-2 Mookayee are father and mother of the deceased Karthigaiselvi. PW-3 Malaichami's aunt is PW-2 Mookayee. PW-4 Subramanian's uncle is PW-1 Vellaian. PW-5 Rasu is the sister of PW-2 Mookayee.
(b) The appellant/first accused Packiam is the brother of PW-1. Second accused Ramu is the wife of the first accused.
(c) There is a house at Thoppulampatti village with four portions. PW-1, accused and other two brothers each entitled for one portion. The portion in the eastern end is occupied by the accused, while on the southern end is by PW-1. There is a common electric meter installed in the said house and the appellant/first accused was in the habit of not contributing his share to pay the electricity charges. In fact, on an earlier occasion, for non-payment of electricity charges, the service was disconnected. Therefore, on 17.10.1998 at 7.00 a.m. PW-1 warned and in fact scolded the appellant that if he fails to pay the charges he would dismantle the door frame of the appellant. At that time, the deceased also scolded the appellant and then the accused retaliated by abusing the deceased by saying, "njtoah ePjhd; cd; mg;gidj; J}z;otpLfpwhah > cd;idf; bfhy;yhky; tplkhl;nlhk;"
(d) On the same day, i.e, on 17.10.1998 at about 11.00 a.m., Pws.1 and 2 leaving the deceased alone in the house, proceeded to Madurai and in fact, they were waiting for the bus at the bus stop of Thoppulampatti. At that time, both the accused, with the common intention to finish off the deceased, dragged her into their house from the house of the deceased and the appellant herein poured kerosene upon the body of the deceased and the second accused set fire on her body and due to the burn injuries, the deceased died on 19.10.1998 at 18.45 hours.
(e) PW-4 Subramanian was at the relevant time taking bath and hearing the noise of a girl "Inah", came to the spot and saw the deceased in flames and rolling on the floor. PW-4 then put off the fire and the appellant and the other accused ran from their house towards east. PW-4 then went and informed Pws.1 and 2, who were standing in the bus stop. On hearing the news, Pws.1 and 2 rushed to their house and took the deceased to Government Rajaji Hospital at Madurai.
(f) PW-8 is Dr. Meenakshisundaram, attached to Rajaji Government Hospital, Madras at the relevant time, who treated the deceased for the burn injuries. To the Doctor, the deceased told that at about 11.00 a.m., she poured kerosene on herself and set fire. Ex.P-4 is the copy of the accident register issued by PW-8. PW-9 Dr. Charles was in charge of Burn Injuries Treatment Ward and to whom the deceased told that her uncle poured kerosene on her and set fire. That was at about 12.25 p.m.
(g) Since the Doctor at Government Rajaji Hospital thought it necessary to record a dying declaration of the deceased, sent a requisition to the Judicial Magistrate. PW-11 Judicial Magistrate after revealing her identity and putting certain questions to verify whether she was in a position to understand the questions and answer, recorded the dying declaration between 12.55 and 13.10 hours. At the time of recording, PW-12 Dr. Panjavarnam was also present and she has certified that the patient was fully conscious while recording the said statement.
(h) PW-14 Udayakumar was the Sub Inspector of Police at Oomachikulam at the relevant time. He got information from the outpost police station at Government Rajaji Hospital and proceeded to the ward and saw the injured Karthigaiselvi and recorded a statement Ex.P-1 from her at 3.00 p.m. and obtained the thumb impression of the deceased. Pws.1 and 2 had also signed the said statement. Thereafter, PW-14 came back to the police station and registered crime No. 424 of 1998 under Section 307 I.P.C. and prepared printed F.I.R. Ex.P-16. Then he sent Ex.P-1 and P-16 to the Judicial Magistrate and copies to his superiors.
(i) PW-15 was the Inspector of Police, Oomachikulam at the relevant time and on 17.10.1998 he received copy of F.I.R. at 5.00 p.m. and proceeded to the scene of occurrence. In the presence of PW-6 and another he prepared Ex.P-2 observation mahazar and Ex.P-17 rough sketch at 6.00 p.m. He seized Mos.1 to 5 under mahazar Ex.P-3. Then he proceeded to the hospital and recorded Ex.P-18 statement from the deceased under section 161 Crl.P.C. and also enquired the witnesses. On 19.10.1998 PW-15 got information that the deceased died during the course of tratment. The death intimation received in this regard is Ex.P-5. Inspector of Police then altered the crime into one under Section 302 I.P.C. and prepared altered express report Ex.P-19 and sent the same to the Judicial Magistrate. Thereafter, PW-15 proceeded to the Government Rajaji Hospital and conducted inquest over the body of the deceased in the presence of Panchayatdars and prepared Ex.P-20 inquest report. A requisition Ex.P-7 was sent to the Doctor to conduct post mortem on the body of the deceased.
(j) PW-10 Dr. Thyagarajan, who received Ex.P-7 requisition from the Inspector of Police, conducted autopsy on the body of the deceased on 20.10.1998. Ex.P-8 is the post mortem certificate issued by the Doctor. In the said certificate, the Doctor has made the following notings, "Appearances found at the post mortem: Moderately nourished female aged about 14 years. Finger and toe nails blue. The following ante mortem injuries are seen on the body: Extensive superficial burns with peeling of epidermis seen in the following area above downwards -driplis pattern portions of face right cheek, chin, front of chest upto umblicus, portions of front of neck areas of both upper limbs, lower left thigh and upper left leg, right leg below the knee to ankle.
I.V.drip surgical wound right wrist seen.
Other findings:
Pleural and Peritoneal cavities - empty; Pericardium - 15 ml of straw colour fluid; Heart - right side - fluid blood, left side - empty. Coronary vessels - Patent; Lungs - congested and oedematous. Larynx and trechea - froath with short particles. Hyoid bone - Intact. Stomach - 120 ml of yellow colour fluid, nil specific smell, mucosa - normal. Liver, spleen and kidneys - cut section congested. Small intestine - 25 ml of bile stained fluid; nil specific smell. Bladder - empty; Uterus - empty; Brain - surface vessel congested; cut section - Petichial haemorrhage present."
The Doctor had opined that the deceased would appear to have died of extensive superficial burns sustained by her.
(k) PW-15 continued the investigation and examined witnesses on various dates. At about 10.00 a.m. On 21.10.1998 both the accused were arrested at the Kallanthiri bus stop and recorded their statements. They were sent to judicial custody on the same day. A requisition was sent to the Judicial Magistrate to send the material objects for chemical examination. Ex.P-14 is the chemical analysis report. After completing the investigation, PW-15 filed his final report on 19.12.1998.
3. When questioned under Section 313 of Code of Criminal Procedure, the appellant as well as the other accused denied having any complicity in the commission of the offence. They pleaded that they have been falsely implicated in this case.
4. That the deceased died of extensive superficial burns sustained by her, is not in dispute. The question is, whether it was the appellant/accused, who poured kerosene on the deceased and set fire, or that the deceased self-immolated.
5. In this case, the only eye witness PW-3 has turned hostile. So also Pws.1 and 2, who are the father and mother of the deceased, who according to the prosecution were informed by PW-4 and who rushed to the scene of occurrence and took the deceased to the hospital. Now, the evidence that are available for consideration before the Court are,
(a) Ex.P-10 Dying Declaration of the deceased recorded by PW-11 Judicial Magistrate in the presence of PW-12 Doctor at 12.55 p.m. On 17.10.1998.
(b) The testimony of PW-8 Doctor, who was at the relevant time in the Casuality (Emergency ward) and who treated the deceased at 12.05 hours on 17.10.1998 and issued Ex.P-4 accident register.
(c) The evidence of PW-9 Doctor in charge of the ward where the deceased was admitted and to whom the deceased told that her uncle poured kerosene on her and set fire, which has been noted down in Ex.P-6 case sheet.
(d) The statement of the deceased Ex.P-1 recorded by PW-14 Sub Inspector of Police at the hospital, wherein the deceased had affixed her LTI and also signed by Pws.1 and 2.
6. Before we take up the exercise of analysing the above evidence and coming to a conclusion, let us refer to certain rulings of the Supreme Court and which this Court has to keep in mind.
(i) In 2002 SCC (Crl) 175 (Munshi Prasad and Others v. State of Bihar) while considering an appeal filed by an accused, who was convicted by the High Court under Section 302 I.P.C., in the opening paragraph of the Judgment, the Supreme Court observed as under, "... Before adverting to the contentions in support of the appeal, in the matter in issue, a note of caution shall have to be kept in mind, as has been administered by this Court from time to time, that scrutiny of evidence in a murder trial should be effected with more than ordinary care so as not to affect "dispassionate judicial scrutiny"."
(ii) In 1995 Supp (4) SCC 118 (Kanchy Komuramma v. State of A.P.), the Supreme Court poited out that even a dying declaration recorded by the Judicial Magistrate has to pass the test of scrutiny of the Court. To quote the exact words, "... That the dying declaration has been recorded by a Judicial Magistrate, by itself is not a proof of truthfulness of the dying declaration, which in order to earn acceptability has still to pass the test of scrutiny of the Court. ..."
(iii) In a subsequent ruling reported in 1999 SCC (Crl) 1176 (Dandu Lakshmi Reddy v. State of A.P.), Justice K.T.Thomas pointed out that there can be no initial presumption that the dying declaration contains only truth. We deem it necessary to quote the exact wordings, which reads thus, "There can be a presumption that the testimony of a competent witness given on oath is true, as the opposite party can use the weapon of cross-examination, inter alia, for rebutting the presumption. But a dying declaration is not a deposition in court. It is neither made on oath nor in the presence of an accused. Its credence cannot be tested by cross-examination. Those inherent weaknesses attached to a dying declaration would not justify any initial presumption to be drawn that the dying declaration contains only the truth."
(iv) The next ruling that can be usefully referred to is the one (Uka Ram v. State of Rajasthan), wherein the Supreme Court pointed out that unless the dying declaration is such that it inspires full confidence of the Court in its correctness, a conviction cannot be based on that. The Supreme Court observed thus, "... The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath - nemo moriturus praesumitur mentire. Such statements are admitted, upon consideration that their declarations are made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. The principle on which the dying declarations are admitted in evidence, is based upon the legal maxim nemo moriturus praesumitur mentire i.e. a man will not meet his Maker with a lie in his mouth. It has always to be kept in mind that though a dying declaration is entitled great weight, yet it is worthwhile to note that as the maker of the statement is not subjected to cross-examination, it is essential for the court to insist that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The Court is obliged to rule out the possibility of the statement being the result of either tutoring, prompting or vindictive or a product of imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a rule of prudence."
(v) In (Arvind Singh v. State of Bihar), the Supreme Court pointed out that dying declarations shall have to be delt with care and caution in the matter of acceptance of such a statement as trustworthy evidence.
(vi) In the case of Panchdeo Singh v. State of Bihar , the Supreme Court emphasised on the point that the confidence of the Court is summum bonum and in the event of there being any affirmation in the judicial mind, question of any disbelieve or distrust would not arise and that the Court should be satisfied fully and there should not be any infirmity at all howsoever negligible it be. The Supreme Court observed as under, "... The confidence of the Court is the summum bonum and in the event of there being any affirmation thereto in the judicial mind, question of any disbelieve or distrust would not arise. In the event, however, of there being some infirmity, howsoever, negligible it be, the Court unless otherwise satisfied about the credibility thereof, ought to look for some corroboration, if however it is otherwise, question of requirement of a corroboration would not arise; dying declaration alluring confidence of the Court would be a sufficient piece of evidence to sustain conviction. ..."
(vii) In 2002 SCC (Crl) 1575 (Ramilaben Hasmukhbhai Khristi v. State of Gujarat), the Supreme Court pointed out that the dying declaration can form the sole basis for conviction if it is free from any kind of doubt. This Court considers this better to quote the exact words to convey the real effect of the said judgment, which reads as under, "Under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration."
7. From the above rulings, the legal position can be summed up as under,
(a) In a murder trial, scrutiny of evidence should be effected with more than ordinary care, so as not to affect "dispassionate judicial scrutiny".
(b) Dying declaration recorded by Judicial Magistrate by itself is not a proof of truthfulness of the dying declaration and the same to earn acceptability has still to pass the test of scrutiny of the Court.
(c) There is no initial presumption that the dying declaration contains only the truth.
(d) For dying declaration can form the sole basis of conviction, it must be free from any kind of doubt. Or in other words, dying declaration must inspire full confidence and should be free from any infirmity, howsoever, negligible it be.
8. Coming to the present case, the dying declaration was recorded by PW-11 Judicial Magistrate No. 5, Madurai on 17.10.1998 between 12.55 p.m. and 1.10 p.m. and the statement has been marked as Ex.P-10. In the said statement, the deceased has stated that the appellant/accused took (Tl;or;brd;W) her and poured kerosene and set fire and when she raised cry, PW-4 came there and that the appellant had a grievance against her because she was in love with one Ravi. Two hours thereafter, according to the prosecution, she gave a statement before Pw-14, the then Sub-Inspector of Police, Oomachikulam Police Station. In the said statement she has stated that at about 11.00 a.m., the appellant and other accused dragged her to their house and the appellant poured kerosene on her and the other accused viz., her aunt lighted a match stick and threw it on her. The motive mentioned therein is that there was enmity between both the families with regard to common meter. When we compare these two statements, we note the following contradictions, (1) In the first statement, A-2 has not been implicated, while in the second one, A-2 has been implicated.
(2) The motive attributed in the first statement is that the appellant had a grievance because the deceased had liking for one Ravi, while in the second statement the motive mentioned is the misunderstanding between the two families with regard to electricity meter.
(3) In the dying declaration it is stated that the deceased was taken (Tl;or;brd;W) to the house of the accused, while in the second statement it is stated that the deceased was dragged by the accused to their house.
The fact that the deceased in her second statement viz., Ex.P-1 made to PW-14 Sub Inspector of Police, has implicated the other accused disturbs the mind of the Court and it cannot be said that the dying declaration made to PW-11 Judicial Magistrate inspires full confidence of the Court.
9. Immediately after the occurrence, the deceased was taken to the hospital and she was seen by PW-8 Doctor. In the accident register Ex.P-4, prepared by him at 12.05 hours it is stated as under, "... Alleged to have poured kerosene over her and lit herself today at 11 a.m. ..."
The Doctor has deposed before the Court that it was the deceased herself, who told him so. That being so, Ex.P-4 will not be of any use and in fact it will create more suspicion in the mind of the Court about the truthfulness of the dying declaration made to the Judicial Magistrate. In fact, Ex.P-4 and testimony of the Doctor creates more doubt in our minds.
10. The other document available is Ex.P-6 case sheet, wherein PW-9 Doctor, after admitting her in the ward has written as under, "Alleged to have attempted homicide by his rpj;jg;gd; uncle Packiam at his house by kerosene"
We have got serious doubt about this entry made in Ex.P-6 case sheet. First of all, the column in the case sheet in which the above entry made is meant to state 'Past History (illness, operation, injuries)'. What is expected to be written in this column is, what is the nature of illness, whether the patient is operated and what are the injuries and not how the patient sustained burn injuries. Secondly, this column comes in page No. 2 of the case sheet. In page No. 1 of the case sheet, there is a separate column for date of admission and time of admission. But strangely, in page No. 2, the time is mentioned as 12.25 p.m. Thirdly, we find this column has been filled up by a different pen, when compared to the other columns in the same page. For these reasons, we reject the entry in the case sheet Ex.P-6.
11. From the above discussion it is clear that Ex.P-10 dying declaration recorded by PW-11 Judicial Magistrate cannot and does not infuse the confidence much less full confidence in the mind of the Court. Consequently, we are of the view that the prosecution has not proved its case beyond all reasonable doubt and the appellant/accused is entitled for benefit of doubt.
12. In the result, the criminal Appeal is allowed. The conviction under Section 302 I.P.C. and sentence of life imprisonment, imposed on the appellant/ accused by the learned Principal Sessions Judge, Madurai by his judgment dated 10.1.2000 in S.C.143 of 2000 are hereby set aside. The appellant/accused is acquitted of the charge framed against him. The appellant/accused is ordered to be set at liberty forthwith, if he is not required in connection with some other cases.