Madras High Court
State By Public Prosecutor, Madras vs Kamaraj And Packiam on 1 August, 2002
Author: A.K. Rajan
Bench: A.K. Rajan
JUDGMENT A.K. Rajan, J.
1. This is an appeal filed by the State against the order of acquittal. A1 was charged for the offence under Section 304(b) IPC and A2 was charged for the offence under Section 304(B) r/w 109 I.P.C.
2. On the side of the prosecution, PWs.1 to 18 were examined and Exs.P 1 to P 22 were marked. On the side of the defence, no witnesses were examined, but documents Ex.D1 to D7 were marked.
3. The case of the prosecution is that A1 is the son of A2. A1 was married to Sumathi, a relative of A2 on 27.11.1987. P.W.5 is the mother of the deceased Sumathi. She is a resident of Salem. PW6 is the father of the deceased. A1 is a Homoeopathy Doctor. At the time of marriage, A1 was working in the Government Hospital, Nagapattinam; immediately after marriage, they were residing at Ponnammapet for two months and thereafter, they went to Nagapattinam; Pws.5 and 6 gave all necessary household articles (including silver articles) to A1 and the deceased and they started living separately; whenever A1 visited their house, A1 would not stay there overnight on the ground that he was not permitted to stay in their house by his parents; the deceased used to tell her father that her husband and mother-in-law demanded money, motor cycle, Fridge, T.V. Diamond jewelleries etc.; A1 also made similar demands; before the death of Sumathi, at least 5 or 6 times, such a demand was made; A2 also used to complain that they were not given sufficient household articles when her daughter was married to a Doctor bridegroom. The deceased gave birth to a child after two years; just one month prior to the death of her daughter, she told that A1 demanded motor cycle and they promised that they will purchase it after some time; her daughter also wrote a letter stating that there was a quarrel between herself and A2. On 10.7.1990 between 10.00 and 11.30 p.m. the deceased Sumathi committed suicide by pouring kerosene and setting herself fire because of the attitude of A1 and A2. When they received the information that their daughter died, P.Ws.5 and P.W.6 came to Nagapattinam and they saw the body at the mortuary; nobody informed as to how she sustained burn injuries; A1 informed them that a quarrel arose between them and thereafter she poured kerosene and set fire to herself.
4. PW2, Doctor Chandramohan attached to Nagapattinam Government Hospital was on duty on 11.7.1990 in the Casuality Ward. The deceased Sumathi was brought by her husband Kamaraj(A1) with burn injuries around 00.20 hours. The deceased told the Doctor that at about 11.30 p.m. on 10.7.1990, while she was cooking, her saree caught fire and she sustained injuries. At that time, she was conscious and her pulse rate was 26. Her blood pressure was not record able; and her breathing was accompanied with sound; heart beating was normal. Burn injuries were found on the head, entire face, neck, chest, stomach, backside and both hands; the percentage of the injuries sustained by the deceased was found to be 100%. Thereafter, she was admitted in the hospital. Ex.P4 is the copy of the Accident Register. He had sent an intimation to the Judicial Magistrate for recording her dying declaration. He had also sent information to the Police Station.
5. PW1, Head Constable attached to Nagapattinam Town Police Station, received the information from the hospital around 12.55 hours on 11.7.90. He went to the hospital and recorded statement from Sumathi. At that time, one Doctor Baskar was also with her.
6. P.W.12 the Judicial Magistrate recorded the dying declaration Ex.P.13 in which she has stated that there was quarrel between her and A.1; she went inside the room, closed the doors and poured kerosene and lit the fire.
7. P.W.15, the Sub Inspector of Police, Nagapattinam registered a case in Crime No.284 of 1990 under Section 174 Cr.P.C. On 11.7.1990 at 9.30 a.m., on receiving the death memo, he informed the Revenue Divisional Officer about this.
8. P.W.11, the Revenue Divisional Officer, received the information about the death of Sumathi and went to Nagapattinam Government Hospital. He conducted inquest on the body of the deceased at the mortuary. During inquest, he examined A1, A2, P.Ws.5 and 6 and other witnesses. He prepared the report Ex.P11. He handed over the documents to the Police. Ex.P12 is the statement given by P.W.6 to him and Ex.D1 is the statement given by P.W.5. He was of the opinion that the death was due to dowry harassment.
9. P.W.16, Inspector of Police, took up the investigation in Crime No.284 of 1990 and went to the house of A1 at about 10.30 a.m. and prepared an observation mahazer, Ex.P15 in the presence of the witnesses. He also prepared a rough sketch, which is marked as Ex.P22. He made arrangements to take photographs of the scene of occurrence. Thereafter, he seized M.Os.1 to 7 from the scene of occurrence at 11.55 p.m. under a mahazar. He examined one Dhakshinamurthy. Thereafter, he converted the offence under Section 306 IPC and the Deputy Superintendent of Police took up the further investigation.
10. P.W.4 conducted the autopsy on the body of the deceased Sumathi. Ex.P7 is the Post-mortem certificate. According to her, the skin was charred from head to foot due to burns, a small surgical wound was found over the medial aspect of the left ankle. Hair was partly burnt and was loose. Eye lids were closed, jaws clenched, tongue inside the mouth and teeth complete. There was no discharge from the ears, nose or mouth. No abnormalities were seen over external genitalia. Lungs: Rt.450 gms, left 400 gms. Surface greyish in colour. Petechial Hemorrhages over the surface. On dissection: lungs congested and exudes blood stained fluid. Hyoid bone intact. Stomach: empty. Small intestine: Distended with gas. No food particles. Large instestine: Distended with gas bladder- empty. Uterus: Normal in size. Cavity empty. Pelvis: No fracture. Skull: No injury or fracture of skull bones. Membranes congested Brain- 1200 gms congested. According to her the deceased died due to extensive burn injuries.
11. P.W.3 is the Doctor working in the Nagapattinam Government Hospital. He examined A1 at 10.30a.m. on 11.7.1990 for certain burn injuries; A1 told him that he sustained burn injuries when he tried to put out the fire and to rescue his wife. He found burn injury measuring 1 c.m. X 1 c.m. on the left fore head and another injury measuring about " x " c.m.; a burn injury on his nose measuring about 3 x 1 c.m. was found; he found two blisters on the left fore hand; two burn injuries were found on the left ear and as those injuries were very small he has not taken the measurement; the hair was found burnt on the forehead and on the left side of the head. A1 was treated as out patient and the injuries sustained by him were simple in nature. Ex.P5 is the copy of the Accident Register and Ex.P6 is the wound certificate.
12. P.W.17 was in-charge of Deputy Superintendent of Police during that period. He received the FIR under Section 306 IPC. On 12.7.1990, he examined the witnesses P.Ws. 2, 4, 8, 9, 12, 14 and other witnesses and recorded their statements. On 13.7.1990, he arrested accused 1 and 2. On 14.7.1990, he examined Pws.5 and 6. Thereafter, he handed over the investigation to the regular Deputy Superintendent of Police. PW18 filed charge sheet under Section 304-B read with 109 IPC.
13. The trial Court convicted accused 1 and 2 of the charges framed against them and imposed a sentence of seven years rigorous imprisonment. On appeal filed by the accused, the appellate Court found that they are not guilty of the charges and acquitted both the accused. Against the order of acquittal, the present appeal has been filed by the State.
14. The learned Additional Public Prosecutor submits that the first appellate Court erroneously acquitted the accused on the ground that the charges against the accused have not been proved beyond reasonable doubt. He further submitted that the evidence of P.Ws.5 and 6 is sufficient to prove that there was dowry harassment right from the date of her marriage; that is also corroborated by the letters Exs.P19 and P20 written by the deceased to P.Ws.5 and 6. But Exs.P19 and P20 do not reveal any dowry demand; In Ex.P19, the deceased has asked to send the grinder at the earliest; In Ex.P20, PW5 was asked by the deceased not to take active part in fixing the marriage for A1's brother. Hence these letters do not prove the dowry demand. The mere asking for a grinder by the daughter from her mother cannot be said to be a dowry demand made by A1 or A2.
15. The learned Additional Public Prosecutor further referred to the evidence of a neighbour P.W.13, who has stated that one week prior to her death, the deceased came to her house with a basket and when she enquired, the deceased had told her that there was a quarrel with the husband and thereafter she had come; PW13 advised her to go back to their house; then A1 came to her house and took the deceased to his house. Therefore, the learned Additional Public Prosecutor argued that if it is taken along with the evidence of P.Ws.5 and 6, it proves that there was a dowry harassment by A1. He further pointed out that P.W.7 who is residing near the house of A1, A2 and the deceased, has stated that she came to know from others that there was a quarrel between the deceased and A1. Further both P.Ws.7 and 13 have stated that on 10.7.1990 at about 11.30 p.m., the accused A1 came out and called P.W.7 and they went to the house of the deceased and found the deceased Sumathi in a critical condition in the "hall". But in the dying declaration before the Judicial Magistrate, the deceased has stated that she "went inside the room and closed the door from inside" and set fire. The dying declaration does not appear to be true, since the body was found in the hall; not inside any room. Therefore, it cannot be relied upon.
16. The learned Additional Public Prosecutor further submitted that even from the evidence of P.W.13, it is clear that there was a quarrel between the deceased and A1. If his evidence is taken along with the evidence of P.Ws.5 and 6, it is proved that there was a quarrel between A1 and the deceased only on account of non payment of dowry. Therefore, the trial Court has rightly convicted the accused; but, the first appellate Court erroneously acquitted the accused on the ground that the offence has not been proved, and hence, the order of acquittal is liable to be set aside.
17. The learned counsel appearing for the respondents submitted that absolutely no evidence is available to prove the demand of dowry by any of the witnesses. From the letters written by the deceased Sumathi as well as from the evidence before the Court, there is no material to conclude that there was demand of dowry by A1 or A2. Asking grinder from the parents by the daughter does not come under the demand of dowry by A1 and A2. Exs. D3 and D7, the letters written by the deceased to A1 as well as to P.W.6, do not show that there was any demand of dowry by A1 or A2. Even Ex.P17 and P18, the letters written to the deceased by A1 or Exs.P19 and P20 written by the deceased to PW6 do not prove that there was any demand of dowry. Even P.W.1 has stated that when he examined the deceased and recorded her statement when one Dr.Baskaran was also with him. But that Doctor was not examined as a witness. Therefore, the alleged statement recorded by P.W.1 cannot be relied upon.
18. Further, she argued that the accused cannot be found guilty only on the basis of the uncorroborated testimony of P.Ws.5 and 6. Therefore, the lower appellate Court was right in acquitting the accused as the charge against the accused were not proved beyond reasonable doubt.
19. In the dying declaration recorded by the Magistrate, the deceased has stated that there was a quarrel between the deceased and A1 that she went inside the room closed the door from inside and poured kerosene and set herself on fire. But, the observation mahazer does not mention anything about any of the doors found broken open. Further, P.Ws.7 and 13 have stated that they saw the deceased lying with burn injuries in the 'hall'. Therefore, the contents of dying declaration appear not true as contended by the learned Additional Public Prosecutor. When she was examined by Pw2 the Casuality Doctor at about 12.20 a.m., she has stated that "her saree caught fire accidentally while she was cooking at her house at 11.30 p.m." When examined by PW1 the deceased has stated that ,d;W ,ut[ 9 kzp RkhU;fF 10/7/90k; njjp vdf;F vd; fzth; ,UtUf;Fk; rz;il Vw;gl;lJ/ ehd; mth[[[plk; vd;id v';Fk; miHj;J bry;YtJ ,y;iy vd;Wk; vd;id kidtpahf epidg;gJ ,y;iy vd;Wk; thf;Fthjk; Vw;gl;Ltpl;lJ/ mth; nfl;lJ vdf;F kdntjidahfpLr;R. ehd; U:k;f;Fs; nghap fjit rhj;jpf;fpl;L kz;bzz;idia Cj;jpf; bfhz;L beUg;[g[ itj;Jf; bfhz;nld;. gpd;g[ vd;id Mk;g[yd;!; K:yk; vd; fzth; vd;id kUj;Jtkidapy; bfhz;lhe;J nrh;j;jh';f/* PW1 has entered about the recording of this statement in Ex.P10 General Diary maintained in the Police Station. In Ex.P4, it is stated that B.P. could not be recorded and "the pulse rate was 26". When the pulse rate was 26, it is very difficult to accept that the deceased gave a statement to PW2. When the deceased suffered from 100% burns and the pulse rate was 26 a doubt arises as to whether it would be possible for the deceased to give a statement. Unfortunately the case sheet maintained in the hospital also was not marked. The extent of burn is stated but the degree of burn injuries not stated by any of the witnesses nor is recorded in any of the documents filed before the Court. There is not even a Court question. The Sessions Judges/Assistant Sessions Judges, who try the cases are duty bound to clarify such vital aspects, when not brought in evidence.
20. But as contended by the learned counsel for the respondent/accused, the Judicial Magistrate has recorded a dying declaration of the deceased; she has stated in that, that she poured kerosene and set fire to herself. In that she has not stated anything about the demand of dowry either by A1 or A2. Therefore, the counsel argued that the deceased has committed suicide, but it is not a dowry death and hence the acquittal by the lowerAppellate Court was legal and valid. Hence, the appeal has to be dismissed.
21. Only when the suicide is coupled with dowry harassment, it will amount to an offence under Section 304(B) IPC. But in this case, there is no evidence to corroborate the evidence of P.Ws. 5 and 6; their evidence do not get corroborated from the letters written by the deceased. Therefore, on the basis of the uncorroborated testimony of P.Ws.5 and 6, it may not be safe to find the accused guilty of the charge under Section 304-B IPC. Further, this is an appeal against acquittal. The lower appellate Court after considering the oral and documentary evidence has come to the conclusion that the prosecution has not proved the charges beyond reasonable doubt. That conclusion can not be said to be not plausible. Under the circumstances, this Court cannot interfere with the conclusion reached by the lower appellate Court.
22. It cannot be ignored that A1 was working as Assistant Medical Officer, Homoeopathy in Nagapattinam Government Hospital; he brought his wife with burn injuries to the hospital; his colleagues recorded statement from the injured; this coupled with the factum of not marking the case sheet creates a very strong doubt that the full facts were not brought before the Court. But on the basis of such doubt alone the accused cannot be found guilty in this case.
23. In such cases of death due to burn injuries it is imperative that the case sheets are marked in evidence; when the prosecution fails to mark the case sheets it is equally imperative for the trial Judge to call for the case sheet and mark as an exhibit. As observed by the Supreme Court in GURBACHAN SINGH VS, SATPAL SINGH "justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law".
In order to arrive at a correct picture in such cases the marking of case sheets are absolutely necessary. In this case in the absence of case sheets of the patient, the Court is not able to ascertain the actual condition of the injured. The doctor has not even stated the degree of burns sustained by the deceased. The fact that the accused is also Doctor working in the same hospital the suspicion becomes very serious. Yet the Court at this stage is unable to do anything more in this case except to decide on the evidence already marked. Therefore, the conclusion arrived at by the trial Court cannot be modified.
24. In the result, the appeal against acquittal fails and hence dismissed.