Madras High Court
Ponnambalam @ Kumar vs State on 21 December, 2017
Bench: R.Subbiah, A.D.Jagadish Chandira
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.12.2017 Date of Reserving the Judgment Date of Pronouncing the Judgment 13.11.2017 21.12.2017 CORAM THE HONOURABLE MR.JUSTICE R.SUBBIAH and THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA Crl.A.(MD) No.348 of 2015 Ponnambalam @ Kumar ... Appellant / Accused -vs- State, rep.by The Inspector of Police Srirangam (L&O) Police Station Tiruchirapalli District ... Respondent / Complainant Criminal appeal is filed under Section 374 Cr.P.C., to call for the records and to set aside the Judgment of conviction and sentence passed in S.C.No.95 of 2013, dated 23.07.2015, by the learned Sessions Judge, Mahila Court, Tiruchirappalli. !For Appellant : Mr.E.Somasundaram ^For Respondent : Mr.C.Mayilvahana Rajendran Addl. Public Prosecutor :JUDGMENT
This criminal appeal has been preferred by the Appellant / Sole Accused against the Judgment, dated 23.07.2015, made in S.C.No.95 of 2013, by the learned Sessions Judge, Mahila Court, Tiruchirappalli, convicting him under Section 302 I.P.C., and sentencing him to undergo imprisonment for life and also to pay a fine of Rs.1,000/-, and in default, to undergo simple imprisonment for three months.
2. The case of the prosecution in brief is that the appellant / accused and the deceased ? Revathi are husband and wife. They have been blessed with two children. The appellant / accused, is a person who is suspicious by nature, had suspicion over the conduct of his wife / deceased and tortured her unnecessarily. When such being the position, that on 14.12.2012, in the late evening, the deceased had received a phone call and attended the call. Thereafter, the appellant / accused, feeling suspicious over the conversation of his wife / deceased in the phone call, had quarrelled and tortured her till midnight by scolding in filthy language and also by beating her. On the next day early morning (i.e., 15.12.2012), when the deceased was cleaning the front portion of the house, the appellant / accused came behind her with a bottle containing two liters of petrol, poured it on her and set her ablaze. Thereafter, she was taken to Srirangam Government Hospital by her parents and brother, to Srirangam Hospital where she was initially examined by Dr.Latha, Assistant Surgeon who had treated her and since the victim suffered 30% burn injuries, the victim was referred to the Government Medical College Hospital, Trichy, where she was admitted at 9.45 a.m. on 15.12.2012 as in patient in M.S-2 Ward. On receipt of intimation from Trichy Government Hospital, the Inspector of Police rushed to the Government Medical College Hospital, Trichy and recorded the statement of the victim Revathi on the same day and returned to the Police Station at 5.00 p.m. and registered a case in Crime No.997 of 2012, against the appellant / accused under Section 307 I.P.C., and sent the copy of the F.I.R. to the Court and the higher officials. However, in spite of the treatment, the victim Revathi died on 12.02.2013, at about 07.30 a.m. Subsequently, the mother of the deceased had lodged a complaint before the respondent ? Police about the death of her daughter and thereafter, the respondent Police altered the offence from Section 307 I.P.C. to Section 302 I.P.C., and sent the copies of altered F.I.R. to the Court as well as the higher officials.
3. After completion of investigation, the respondent ? Police had filed a final report before the learned Judicial Magistrate No.III, Tiruchirappalli, who had taken cognizance of the final report in P.R.C.No.19 of 2013 and inasmuch as the offence being punishable under Section 302 I.P.C., and being triable exclusively by the Court of Sessions, the learned Judicial Magistrate, after furnishing the copies of the documents relied on by the prosecution side to the appellant / accused under Section 207 Cr.P.C., had committed the case, under Section 209 Cr.P.C., to the learned Principal District and Sessions Judge, Tiruchirappalli, who took the same on file in S.C.No.95 of 2013 and made over the same to the learned Sessions Judge, Mahila Court, Tiruchirappalli / Trial Court, for trial. Subsequently, the Trial Court had framed charges under Section 302 I.P.C., against the appellant / accused and when the appellant / accused was explained and questioned about the charges framed against him, he denied the charges framed against him and sought for trial to contest the case and accordingly, trial was conducted.
4. During the course of trial, on the side of the prosecution, P.Ws.1 to 14 were examined and Exs.P1 to P18 and M.Os.1 to 5 were marked.
5. P.W.1 / Maariyayi is the mother of the deceased, who in her evidence, had deposed that she is residing in Vadakkuvasal at Srirangam and running a petty shop along with her husband Muniappan / P.W.2. and that they had two children including the deceased. The appellant / accused is their son-in- law. She had further deposed that the marriage between the appellant / accused and the deceased was a love marriage and out of their wedlock, they begot one daughter and one son. After the marriage, they were living happily for two months. Thereafter, the appellant / accused used to come home drunk and tortured the deceased by beating her. The deceased had also informed her mother / P.W.1 of the tortures suffered by her at the hands of the accused. However, P.W.1 had advised her daughter / deceased to bear with it suggesting that it was her own decision to marry him, as their marriage was a love marriage. Further, P.W.1 had deposed that one year prior to the date of her deposition, her brother's son called the deceased, enquired about her and family members and invited the deceased and her family members to his house, for which, the deceased had told him that as her husband / appellant and her son were wearing maala / garland for God Ayyappan, she will come later. At that time, the appellant / accused, who was lying down in another room, hearing the phone conversation, had come and asked his wife / deceased as to with whom she was talking and had beaten her severely, due to which, the deceased had suffered injuries in her face and in the evening she had come to the house of P.W.1 and told her about the incident. In as much as the inflicting of tortures by the appellant / accused on the deceased had become usual and P.W.1 had pacified the deceased saying that she and her husband / P.W.2 would come and enquire the appellant in the next day morning since the accused / appellant would be drunk at that time. P.W.1 had also informed the same to her husband / P.W.2 and both of them decided to go to the house of the appellant / accused in the next day morning. Accordingly, on the next day morning, at about 07.00 a.m., when P.W.1 and her husband / P.W.2 were on the way and nearing to the house of their daughter, they had seen their daughter / deceased sweeping the doorstep of the house. At that time, the appellant / accused had come behind the deceased with a bottle filled with petrol and poured on her, when P.W.1 and her husband / P.W.2 rushed to protect their daughter / deceased, the appellant / accused had thrown the lit match stick on her and set her ablaze, and run away. Before P.Ws.1 and 2 could go near their daughter / deceased, the fire had engulfed all over the body of the deceased. Thereafter, they put off the fire with the help of a gunny bag and took their daughter / deceased to Srirangam Government Hospital in an Auto-rickshaw. When their daughter / deceased was under treatment, Police had come there and recorded her statement. Thereafter, the deceased was shifted to Tiruchirappalli Government Hospital for further treatment, wherein she took treatment for twenty days. Subsequently, inasmuch as the Doctors had advised P.W.1 that the deceased would not get cured, she took the deceased to her house and took care of her for two months. After two months, her daughter succumbed to the burn injuries. Therefore, P.W.1 lodged a complaint to the respondent ? Police.
6. P.W.2 ? Muniappan / father of the deceased had corroborated the evidence of P.W.1 / Maariyayi. P.W.3 ? Selvi / neighbour of P.W.1, in her evidence, had deposed that she knows P.Ws.1 and 2 as well as the appellant / accused. Further, she had deposed that on the occurrence day, she went to work and after she returned back, she heard about the incident. Thereafter, she had gone to the Hospital, wherein the deceased was admitted with burn injuries and seen her. In the Hospital, P.W.1 gave the half burnt clothes of her daughter to P.W.3 and she took the same and handed it over to the respondent ? Police, who after receiving the same, had obtained her signature in an unwritten paper. Since P.W.3 did not support the case of the prosecution, she was treated as a hostile witness.
7. P.W.4 ? Vinoth, who is the son of the appellant / accused and the deceased, had deposed that P.Ws.1 and 2 are his grandparents. That on 14.12.2012, his uncle Murugesan made a phone call to his mother and invited her as well as her family members to his house, for which the deceased had replied that since her husband / appellant and her son / P.W.4 were wearing maala / garland for God Ayyappan, and that she will come after they return from the Temple. At that time, his father / the appellant who was lying down in the next room, had come and questioned the deceased as to with whom she was talking and beaten her. On seeing the same, P.W.4 restrained and protected the deceased from the appellant / accused. Subsequently, his mother / deceased was crying all over the day and in the evening she had gone to the house of her parents / P.Ws.1 and 2 and returned at about 09.00 p.m. Thereafter, all of them went to sleep. On the next day morning, when he was returning from the river after taking bath, his mother / deceased was sweeping at the doorsteps. At that time, his father / appellant came behind the deceased, poured something on her and set her ablaze. Though he rushed to protect his mother / deceased, by that time, his grandparents / P.Ws.1 and 2 as well as his uncle P.W.5 had come and they set off the fire and took the deceased to Srirangam Government Hospital for treatment. Thereafter, the deceased was shifted to Tiruchirappalli Government Hospital, wherein she took treatment for one month. The Doctors opined that it was difficult for the victim to get healed as the burn injuries were caused by petrol. Therefore, they took the deceased to their house. P.W.4 further deposed that due to suspicion, his father / appellant had set his mother ablaze and thereby, she died.
8. P.W.5 ? Kannusamy @ Kannan, who is the brother of the deceased, had deposed that he is working as a Mason and residing along with his parents at Vadakkuvasal in Srirangam. Twenty years back, the appellant / accused used to come to the Petty Shop run by his parents/ P.Ws.1 and 2 and chat with his sister / deceased and they developed love affair with each other and eloped from the house. Thereafter, his parents / P.Ws.1 and 2 had arranged marriage and that they were living separately after marriage. Out of the wedlock, two children were born to them. The appellant / accused had the habit of consuming alcohol and beating his wife / deceased arrogantly. When P.W.5 had interfered and questioned, the appellant / accused had replied rudely that nobody could question him beating his wife. Therefore, P.W.5 did not interfere in his sister's family matter. Subsequently, that on 14.12.2012, his uncle's son, namely, Raja had called his sister / deceased over cellphone and invited her and family members to his house, for which she had replied that she would come after her husband / appellant and son / P.W.4 returned from Sabarimalai Pilgrimage. Thereafter, suspecting the conversation of the deceased, the appellant / accused, who was sleeping in the next room, had come and scolded his wife / deceased and had beaten her. The deceased informed the same to her mother / P.W.1. P.Ws.1 and 2 had informed P.W.5 about the said incident. Therefore, they had decided to enquire the appellant / accused on the next day morning. On the next day morning at about 6 ? 7 a.m., his parents had gone to his sister's house. Little later, he had also followed them. Thereafter, they heard the screaming of his sister. At that time, the appellant / accused had come from behind the deceased, poured petrol on her and set her ablaze and ran away. P.W.5, his parents / P.Ws.1 and 2 and neighbours set off the fire and took the deceased to Srirangam Government Hospital in an Auto-rickshaw. Thereafter, the deceased was shifted to Tiruchirappalli Government Hospital for further treatment. Since there was no improvement in the health of the deceased even after 25 days the Doctor had advised that it is difficult for the deceased to get cured as the burn injuries were caused by petrol. Therefore, they had taken the deceased to their house and gave treatment. On 12.02.2013, she died. His parents had given a complaint to the respondent ? Police.
9. P.W.6 ? Murugan had deposed that on 15.12.2012, when he and one Govindaraj / P.W.7 were standing on Kollidakoorai Medu, Police came to the house of the deceased, conducted investigation and recovered one bottle and matchbox and prepared a mahazar in which he had signed as a witness. P.W.7 ? Govindaraj had also corroborated the evidence of P.W.6 ? Murugan. P.W.8 ? Muruganandham had deposed that he is a driver and he used to leave to work in the morning and return in the late evening. Therefore, he did not know anything about the incident. He had signed as a witness in the confession statement of the appellant / accused. However, he had not gone through the contents of the confession statement. P.W.9 ? Ramarajan had deposed that he is a driver and he came to know about the incident. He had signed as a second witness in the confession statement of the appellant / accused. However, he had stated that he had not gone through the contents of the confession statement.
10. P.W.10 ? Dr.Kayalvizhi had deposed in her evidence about the admission of the victim, who was brought to Hospital with burn injuries on 15.12.2012, at about 09.45 a.m., as in patient in M.S.2 ? Ward for treatment. P.W.11 ? Ravindran had deposed about the examination of viscera of the deceased on 13.02.2013 and the issuance of a report / Ex.P10 opining that no alcohol or poison was found in the viscera. P.W.12 ? Dr.Latha had deposed about her working at Srirangam Government Hospital as Assistant Surgeon and having examined the victim on 15.12.2012, at about 08.45 a.m., and issuance of Ex.P11 Accident Register and the statement of the victim with regard to the incident and certifying that the victim suffered 30% burn injuries and about recommending to take the victim to the Government Medical College Hospital, Tiruchirappalli for further treatment. P.W.13 ? Dr.R.V.S.Renuka Devi had deposed about the autopsy conducted by her on the body of the deceased and issuance of postmortem certificate / Ex.P12 and final opinion / Ex.P13.
11. P.W.14 ? K.Balusamy the I.O had deposed about the intimation received from the Government Hospital Srirangam about the admission of the victim Revathi with burn injuries, recording the statement of victim Revathi at M.S- 2 Ward of Government Medical College Hospital, Trichy, registration of case in Crime No.997 of 2012 against the appellant/accused for the offence under Section 307 IPC, investigation conducted by him, recording of statements of witnesses by him, preparation of mahazars, seizure of Material Objects and sending them for chemical analysis, alteration of offence from 307 IPC to 302 IPC after the death of the victim based on the complaint from the mother of the victim Revathi, sending the body of the deceased for postmortem, arrest of the accused and recording confession statement of the accused and filing of final report.
12. After completing the examination of witnesses, when the incriminating materials and circumstances were put to the appellant / accused, under Section 313 Cr.P.C., he denied the evidence of the prosecution side as false, however, no oral and documentary evidence was adduced on the side of the defence.
13. After hearing both sides and perusing the oral and documentary evidence adduced, the learned Trial Judge, by Judgment dated 23.07.2015, had found the appellant / accused guilty of the offence under Section 302 I.P.C., and sentenced him as stated above. Challenging the said conviction and sentence, the appellant / accused has preferred the present criminal appeal.
14. Heard Mr.E.Somasundaram, learned counsel appearing for the appellant / accused and Mr.C.Mayilvahana Rajendran, learned Additional Public Prosecutor appearing for the State and carefully perused the Judgment of the Court below as well as the evidence and materials placed on record.
15. The learned counsel appearing for the appellant / accused contended that among the fourteen witnesses examined on the side of the prosecution P.Ws.1, 2, 4 and 5 are stated to be the eye-witnesses. While taking into consideration the evidence of all the witnesses, their evidence with regard to their presence at the scene of occurrence and having witnessed the occurrence cannot be believed as true, because their evidence was embroiled with inconsistencies, contradictions and exaggerations. Moreover, all the witnesses are related and interested witnesses and their evidence, without being corroborated by independent witnesses, cannot be taken to be true. P.W.1 / mother of the deceased had stated during her examination in chief that on the day of occurrence, she was doing business in the shop at early morning and thereby, her evidence with regard to have come to the place of occurrence and having witnessed the incident at 07.00 a.m., cannot be believed.
16. Further, the learned counsel for the appellant / accused contended that P.W.2 / father of the deceased, during his examination, had admitted that the deceased had committed self-immolation due to dispute between her and the appellant / accused regarding the illicit intimacy with one Sekar. The further contention of the learned counsel for the appellant / accused is that it was really strange that though P.Ws.1, 2, 4 and 5 were stated to be present at the scene of occurrence, none of them had even attempted to make a complaint to the Police immediately after the occurrence and thereby, making their conduct not natural. Moreover, the witnesses, being in inimical terms against the appellant / accused, there is every possibility of having falsely projected a case of suicide to one of murder and falsely implicating the appellant / accused.
17. The learned counsel for the appellant / accused further contended that it was the case of attempt to commit suicide and that was the reason why no steps have been taken by the respondent - Police to record the judicial dying declaration of the deceased though she was under treatment for twenty days in the hospital and thereafter, the deceased having been taken back home against medical advice and breathed her last on 12.02.2013 almost after two months from the date of occurrence on15.12.2012.
18. Further, the learned counsel for the appellant / accused contended that it is the categorical admission of P.W.1 that she was not aware of the contents of the complaint and that the Police obtained her thumb impression on a blank paper and filled the contents by themselves and that there had been every possibility for the respondent ? Police to project the case with fabricated evidence to secure the conviction of the appellant / accused.
19. The learned counsel for the appellant / accused further contended that the evidence of the eye-witnesses were all unnatural and that their presence at the same time at the scene of occurrence is unbelievable. P.W.2, who is the father of the deceased, stated to be the eye-witness, had contradicted his very own evidence saying that he did not go to the place of occurrence and he had further deposed that there was no dispute between the appellant / accused and the deceased. Further, the presence of P.W.4 cannot be believed, since P.W.2 had stated that P.W.4 was not present at the time of occurrence.
20. The learned counsel for the appellant / accused further contended that P.W.3 ? neighbour, who was stated to be an eye-witness, had turned hostile and moreover the witnesses to the confession, namely, P.Ws.8 and 9 have also turned hostile. When the independent witnesses have turned hostile, it is highly unsafe to convict the appellant / accused based on the uncorroborated evidence of the related and interested witnesses, who are inimical towards the appellant / accused.
21. The learned counsel for the appellant / accused further contended that the seizure of 25 Ml., petrol bottle and match box at the place of occurrence after ten hours of the occurrence cannot be believed and the learned Trial Judge erred in convicting the appellant / accused based on a shoddy and improper investigation done by P.W.14 / Investigation Officer. Though P.W.12 / Dr.Sudha had deposed about intimating the Police through Ex.P11 immediately after the deceased was brought to the hospital, the Investigation Officer had denied the receipt of such intimation from the Hospital, thereby creating suspicion and doubt regarding the prosecution case.
22. Further, the learned counsel for the appellant / accused contended that the Government Doctor had deposed that the victim was brought from Srirangam Hospital to Trichy Hospital at 09.45 a.m., and that intimation was sent to the Investigation Officer at the same time. However, Ex.P14 / F.I.R., has been registered only at 17.00 hours and the statement of the Investigation Officer that he received the information only at 17.00 hours makes the case of the prosecution and the version of the witnesses highly doubtful and thereby, such delay had given enough rope to falsely implicate the appellant / accused and tamper with the documents in favour of the prosecution. The unexplained delay of more than eleven hours makes the case of the prosecution highly doubtful and further though the distance between the Police Station and the place of occurrence was only two kilometers, the conduct of the witnesses not making any complaint to the Police Station immediately after the occurrence makes the case of the prosecution highly doubtful and thereby, enabled the witnesses to convert a case of attempt to suicide as a case of murder to wreck vengeance on the accused.
23. The learned counsel for the appellant / accused further contended that there was a delay of two days in the F.I.R., reaching the Court, thereby creating a doubt on the entire prosecution case, since the lapses and irregularities go to the root of the matter and there is every possibility that the prosecution has fabricated materials to suit its convenience.
24. Further, the learned counsel for the appellant / accused contended that the prosecution case is elusive with regard to the intimation from the hospital and the registration of the case by the respondent - Police. As per the evidence of P.W.14, on 15.12.2012, at about 11.30 a.m., while he was in duty, one Keasavan / S.S.I. had placed the hospital intimation bearing No.12612/12 before him. However, the said S.S.I. Kesavan was not examined and no reason had been put forth by the prosecution for not examining him, whereas the Investigation Officer had stated that he did not receive any intimation from hospital and the above contradictions with regard to the receipt of intimation from the hospital creates a doubt in the prosecution case, thereby making it to infer that the earlier intimations from the hospital have been suppressed, thereby taking into consideration the entire evidence on record, there are several contradictions, exaggerations and embellishments. Furthermore, while the distance between the place of occurrence and the hospital is only two kilometers, the conduct of the witnesses in not preferring complaint to the Police immediately after the occurrence makes the prosecution version highly doubtful. Further, though the victim was taking treatment in the hospital for about twenty days and thereafter, discharged from the hospital against the medical advice and breathed her last after sixty days, no effort had been taken by the prosecution to record judicial dying declaration from the victim, thereby creating a doubt with regard to the sustaining of injury by the victim. The counsel further contended that though the deceased was stated to have taken treatment at the hospital for several days and the doctors who treated the accused were not examined, no case sheets were produced and no evidence with regard to the nature of treatment given to the deceased and if only such evidence had been produced the real cause for the death of the deceased would have been known.
25. The learned counsel for the appellant / accused further contended that when taking all the above factors in full, it could be a case of attempt to commit suicide, whereas after much deliberation and contemplation, fabricated statements have been prepared so as to project the case as a case of homicide. In support of his contentions with regard to the conduct of the witnesses, the learned counsel for the appellant / accused placed reliance upon the decisions reported in Sudhakar vs. State, reported in (2017) 2 MLJ (Crl) 614 wherein a Division Bench of this Court had held that even assuming that the witnesses were present at the place of occurrence, going by the natural human conduct, any of them should have gone to the police station to make complaint and by observing that there was no explanation for the complaint in that case being made after two hours had acquitted the accused. The learned counsel for the appellant / accused relied on yet another judgment Sivakumar & others vs. State, reported in (2017) 2 MLJ (Crl) 38, wherein a Division Bench of this Court had, while taking note that the delay in giving complaint and delay in sending the F.I.R. to Court was not properly explained, held that it was unsafe to rely upon the uncorroborated testimony of P.W.1 to convict the accused.
26. However, while concluding the arguments the learned counsel for the appellant / accused in respect of the alternate plea submitted that in this case the appellant / accused and the victim are husband and wife and that though their marriage was a love marriage, emotions were embroiling over the issue of the appellant / accused suspecting the fidelity of his wife and that on the day prior to the occurrence there had been a quarrel between the appellant / accused and the deceased over her speaking to somebody over phone and her conduct being questioned by the appellant / accused and that the appellant / accused was drunk and that pursuant to the act of the appellant / accused on 15.12.2012 the deceased had suffered only 30% burn injuries as seen from Ex.P11 / Accident Register and thereafter, she had taken treatment for 20 days in the Government Hospital, Trichy and she had been discharged against Medical advice and had breathed her last on 12.02.2013 after two months. The learned counsel contended that though the victim had been alive for about two months, no steps had been taken by the prosecution to record a judicial dying declaration and further contended that no evidence had been adduced by the prosecution about the nature of treatment given to the deceased and no statement being recorded from the doctors who treated her and that the death of the victim having happened after two months and in such circumstances submitted that considering the nature of injury and the time gap in the death, the act of the accused / accused would squarely fall under Exception-3 to Section 300 I.P.C., and thereby the offence would be one punishable under Section 304(ii) I.P.C., since the act of the appellant / accused had not been the immediate cause for the death and thereby, pleaded that the appellant / accused may be awarded a lesser sentence.
27. Per contra, the learned Additional Public Prosecutor submitted that the prosecution has categorically proved the case by examining the witnesses for proving the motive and also in respect of the occurrence. P.W.1 / mother of the deceased, P.W.2 / father of the deceased, P.W.4 / son of the deceased and P.W.5 / brother of the deceased have spoken in detail about their presence at the place of occurrence and they are natural witnesses and their evidence cannot be disbelieved. The evidence of P.W.1 with regard to the deceased having met her on the previous day evening and that she had informed her daughter that she would come to her house in the next day morning, since her husband would be drunk at that time was cogent and natural. As stated by P.W.1 that she would come to the house of the deceased in the next day morning, P.W.1 along with her husband / P.W.2 had gone to the house of the deceased and witnessed the appellant / accused pouring petrol over her daughter and setting her ablaze. Thereafter, she had also spoken to about taking her daughter to Srirangam Hospital and from there on reference to Government Hospital, Trichy, for better treatment and thereafter, discharging her daughter against medical advice after twenty days and about the death of her daughter later. Further, P.W.2 had also stated about being present along with P.W.1 at the scene of occurrence. P.W.4 / son of the deceased and P.W.5 / brother of the deceased have also spoken to about being present at the scene of occurrence and having witnessed the occurrence and no material contradiction had been elicited from them during the cross-examination to disbelieve or dispute their presence at the scene of occurrence. Further there is no need for P.W.4, who is the son of the deceased to implicate the appellant / accused who is none other than his own father.
28. The learned Additional Public Prosecutor with regard to the submission of the learned counsel for the appellant / accused regarding admission of P.W.2 that his daughter committed suicide due to the dispute because of her husband suspicion of illicit intimacy contended that the evidence of P.W.2 has to be read in full and that it was only a minor contradiction elicited while subjecting a witness aged 80 years to lengthy cross-examination and such minor contradiction should not come in the way other strong evidences which were pointing the guilt of the appellant / accused.
29. Further, the learned Additional Public Prosecutor contended that the case itself has been registered based on the statement of the deceased, which was marked as Ex.P2. Further, the case of the prosecution has been fortified by the entry made in Ex.P11 / Accident Register issued at Srirangam Government Hospital, wherein the Medical Officer P.W.12 had recorded the information given by the victim with regard to the nature of injury suffered by her and the person by whom she suffered the injury. Further, the entry made in the Accident Register Ex.P 11 at the time when the deceased was taken to Srirangam Government Hospital is the very first document which clearly shows that the victim was brought by P.W.1 / mother and the victim herself had stated about the manner by which she had suffered burn injuries by the act of the accused and the time of occurrence . Further a statement had been recorded from the deceased while she was in treatment which had been marked as Ex P2 and it had also been corroborated by EX P 1 the complaint given by P.W.1. However, no evidence had been let in by the appellant / accused to discredit the vital documents Ex.P11 / Accident Register, Ex.P1 / complaint and Ex.P2 / statement of the victim / deceased given to the Police.
30. The learned Additional Public Prosecutor further contended that the statement of the deceased based on which the case has been registered has to be treated as a dying declaration since her statement relates to the offence/act committed by the appellant / accused which resulted in her death and thereby, the statement given by the deceased is admissible as it is a statement falling under Section 32 of the Evidence Act in relation to her death and thereby, covered under clause (1) of Section 162(2) of Cr.P.C. Further the appellant / accused had not suggested that the statement was given by the deceased after deliberation and tutoring and thereby the statement of the victim has to be relied without doubt and moreover when nothing had been elicited in defence to discredit Exs P1, P2 and P11, conviction can be based placing reliance on the above documents and the statements of the deceased alone. In support of his contentions, the learned Additional Public Prosecutor placed reliance upon the decisions in Vinay D.Nagar vs. State of Rajasthan, reported in (2008) 5 SCC 597 and Rafique vs. State of U.P., reported in (2013) 12 SCC 121.
31. Further, the learned Additional Public Prosecutor contended that the case of the prosecution has been proved by ocular witnesses and that though there had been a delay in reaching the F.I.R. to the Court, the delay cannot be viewed with suspicion, since the witnesses, who are closely related, and they had taken the victim to the hospital and it is natural that the intention of the witnesses would be to give effective treatment to the victim rather than seeing that the case is registered in time. Further, when no suggestion had been put forth by the appellant / accused with regard to the possibility of concoction of evidence against him, only common sense view has to be taken and in the particular case, there had been a delay since endeavour was taken by the relatives of the victim to take her to the hospital and provide immediate and better treatment to save her life. The learned counsel for the appellant/accused contended that in such situations the first priority for the relatives would be to provide medical aid and in this case the deceased had been taken to Srirangam Government Hospital and thereafter to Trichy Government Medical College Hospital and therefore only a common sense view has to be taken with regard to the plight of the family members who would attempt to save the victim than give a complaint and thereby the delay cannot be taken as unreasonable. In support of his contention, he relied on the decision of the Apex Court Mukesh and another vs. State (NCT) of Delhi and others reported in (2017) 6 SCC 1. Further, immediately after the occurrence, the appellant / accused had absconded and he was arrested only after the death of the victim and the conduct of him absconding without attempting to save his wife would prove his guilt and if it is the case that the victim had attempted suicide, the appellant would have present there to save her.
32. In Vinay D.Nagar vs. State of Rajasthan (cited supra) the Apex Court has held as follows:-
?18. Section 32 of the Indian Evidence Act enumerates eight clauses in which the statements made by a dead person or a person who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured in court can be admitted in evidence. Clauses (2) to (8) of Section 32 are not material for the purpose of deciding the present case. The relevant provision reads as under:
"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death.- When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
19. Clause (1) says that when a statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, such statement would be relevant. So the question is whether the statement made by deceased Kalu under Section 161 Cr.P.C. in previous investigation would be admissible as per the second part of Section 32(1) of the Evidence Act which says that the statement made by a person as to the `circumstances of the transaction which resulted in his death' would be admissible and whether the deceased's statement under Section 161 Cr.P.C. falls under `circumstances of the transaction which resulted in his death?.
33. In Rafique vs. State of UP (cited supra), the Apex Court has held as follows:-
?26.In a recent decision of this Court reported in Sri Bhagwan vs. State of U.P. ? 2012 (11) SCALE 734, to which one of us was a party, dealt with more or less an identical situation and held as under in paragraphs 21 and 22:
?21.As far as the implication of 162 (2) of Cr.P.C. is concerned, as a proposition of law, unlike the excepted circumstances under which 161 statement could be relied upon, as rightly contended by learned senior counsel for the respondent, once the said statement though recorded under Section 161 Cr.P.C. assumes the character of dying declaration falling within the four corners of Section 32(1) of Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deemed to apply in all force to such a statement though was once recorded under Section 161 Cr.P.C. The above statement of law would result in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a victim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such.
22. Keeping the above principle in mind, it can be stated without any scope for contradiction that when we examine the claim made on the statement recorded by PW-4 of the deceased by applying Section 162 (2), we have no hesitation in holding that the said statement as relied upon by the trial Court as an acceptable dying declaration in all force was perfectly justified. We say so because no other conflicting circumstance was either pointed out or demonstrated before the trial Court or the High Court or before us in order to exclude the said document from being relied upon as a dying declaration of the deceased. We reiterate that having regard to the manner in which the said statement was recorded at the time when the crime was registered originally under Section 326 IPC within the shortest time possible within which it could be recorded by PW-4 in order to provide proper medical treatment to the deceased by sending him to the hospital, with no other intention pointed out at the instance of the appellant to discredit contents of the said statement, we hold that the reliance placed upon the said statement as the dying declaration of the deceased was perfectly justified. Having regard to our above conclusion, the said submission of the learned counsel for the appellant also stands rejected.?
34. In Mukesh vs. State (cited supra), the Apex Court has held :
(paragraphs 50, 53 and 54) ?50.Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused.
53.In the context of belated FIR, we may usefully refer to certain authorities in the field. In Ram Jag and others v. State of U.P., it was held as that witnesses cannot be called upon to explain every hour?s delay and a commonsense view has to be taken in ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused.
On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution.?
54. In State of Himachal Pradesh vs. Rakesh Kumar, the Court repelled the submission pertaining to delay in lodging of the FIR on the ground that the first endeavour is always to take the person to the hospital immediately so as to provide him medical treatment and only thereafter report the incident to the police. The Court in the said case further held that every minute was precious and, therefore, it is natural that the witnesses accompanying the deceased first tried to take him to the hospital so as to enable him to get immediate medical treatment. Such action was definitely in accordance with normal human conduct and psychology. When their efforts failed and the deceased died they immediately reported the incident to the police. The Court, under the said circumstances ruled that in fact, it was a case of quick reporting to the police.?
35. In reply to the argument of the learned Additional Public Prosecutor relating to the conduct of the accused absconding after the occurrence , the counsel for the appellant contended that the conduct of the appellant cannot be taken as incriminating factor against him and submitted that adverse inference cannot be drawn against him for his abscondance and in this case also the appellant / accused could have absconded due to fear of false implication and fear of attack from relatives and in support of his submission relied on the decision of the Apex Court in Sunil Kundu and Another Vs. State of Jharkand, reported in (2013) 2 SCC (Crl.) 427, wherein it had been held that absconding by itself does not prove the guilt of a person since a person may run away due to fear of false implication or arrest and thereby adverse inference cannot be drawn.
36. We have considered the submissions of the learned counsel for the appellant / accused and the learned Additional Public Prosecutor for the State and consciously gone through the evidence and material on record.
37. P.W.1 / mother of the deceased had spoken about the marriage between the deceased and the appellant / accused and about the deceased giving birth two children and about the domestic violence committed on the deceased by the appellant / accused and about the deceased informing her about the quarrel between the deceased and the appellant / accused on the previous day. Further that she had told her daughter / deceased that she would come along with her husband next day to enquire her son-in-law since he was drunk. Thereafter, on next day morning while P.W.1 was on the way to her daughter's house along with P.W.2 / husband, she had seen the deceased sweeping the front portion of her house and at that time, the appellant / accused had poured petrol on her and when she had rushed to save her daughter, the appellant / accused had lighted the match stick and thrown on her and set her ablaze and had run away from the place. Immediately, the deceased had been taken in an auto-rickshaw to Srirangam Hospital by her relatives and from there she had been taken to Government Hospital, Trichy, for better treatment, wherein she was taking treatment for twenty days and since the Doctors have told that it was not possible for them to save her daughter, she was brought back home and she had breathed her last after two months and after her death, she had given the complaint and the case was altered to one under Section 302 IPC. At the time of admission at Srirangam Government Hospital the deceased had been examined by P.W.12 and the deceased had spoken to P.W.12 about the manner in which she had suffered the injuries which had been entered in Ex.P11 / Accident Register and thereafter she had given a statement to the police which was recorded (marked as Ex.P2) while she was an inpatient and based on that statement the case had been registered. The Accident Register had been marked as Ex.P11 and her statement had been marked as Ex.P2. P.W.1, P.W.2, P.W.3 and P.W.4 are the eye-witnesses to the occurrence. Though there are minor contradictions and inconsistencies in the evidence of the witnesses, they are immaterial since they have in no way affected the strong evidence regarding the statement of the deceased Revathi which has to be construed as a dying declaration by virtue of having been covered under Clause (1) of Section 167(2) of Cr.P.C.
38. When we come to the evidence of P.W.12 Dr.Latha, she had deposed that on 15.12.2012, while she was on duty at Srirangam Government Hospital as Assistant Medical Officer, P.W.1 had brought her daughter Revathi the deceased herein for treatment and her daughter had told P.W.12 that about 07.00 a.m., her husband had poured petrol on her and set her ablaze and P.W 12 had deposed that when she had examined the deceased, the deceased was conscious and replied cogently and she found the pulse and pressure of the victim was normal and that she had certified that the deceased had suffered 30% burn injuries and thereafter, she had referred the deceased to Trichy Government Hospital. The defence had elicited nothing worthwhile in the cross-examination of P.W.12 to discredit her evidence. Furthermore, though there are some minor contradictions in the evidence of the witnesses they cannot be taken seriously against the statements of the victim/deceased in which she had spoken to P.W.12 / Dr.Latha about her husband pouring petrol and setting her on fire and thereby, the contradictions in the evidence of eyewitnesses will not materially affect the prosecution case, since the statement of the deceased pinpointed to the guilt of the accused.
39. In view of the above discussions, we find that the prosecution has proved its case beyond reasonable doubt by cogent and convincing oral as well as documentary evidence and thereby, we hold that the appellant / accused is the person who has caused the death of the victim Revathi.
40. So far as the argument for alternate plea, the learned counsel for the appellant / accused contended that it was a case of sustained provocation and there was a dispute on the earlier day with regard to the deceased speaking over telephone to someone and thereby the quarrel ensued between the appellant/accused and his wife suspecting her fidelity and that the witnesses have also spoken about the quarrel. The counsel further contended that the burn injuries suffered by the deceased was only a minimal 30% which could not have caused death in the ordinary course and considering that the deceased was discharged against medical advice while undergoing treatment and she having died on 12.02.2013 after about two months of the occurrence on 15.12.2012 the act of the appellant/accused could not be attributed as the only reason and cause for the death of the deceased. He further contended that when no evidence had been adduced by the prosecution with regard to the nature of treatment given to the deceased and when no doctor had been examined and no medical records have been marked with regard to the treatment,the act of the appellant /accused cannot be taken as sufficient in the ordinary course of nature to have caused the death of the deceased. Even as per the evidence and opinion of P.W.13 / Doctor, who conducted postmortem, the cause of death of the victim would be due to the burn wounds and its complications and thereby, the learned counsel for the appellant / accused prayed that the case of the appellant/accused can be brought under the Exception-3 of Section 300 I.P.C. and prayed for imposition of a lesser sentence.
41. Now, with regard to the alternate plea, what is to be seen is whether the case of the appellant / accused can be brought under Exception-3 of Section 300 I.P.C.
42. In Harish Kumar vs. State (Delhi Admn.), reported in AIR 1993 SC 973, the Honourable Supreme Court has held that:
?6. The next question is what is the offence the appellant had committed. We have seen the evidence. Mr.V.C.Mahajan, learned counsel for the State contended that the appellant came one hour after the initial exchange of words; he came with sharp edged weapon and without any provocation he inflicted the injury on the deceased when he was held back by the acquitted co-accused. That would show that there is an intention to kill him, and as per the doctor the injury was sufficient in the ordinary course of nature to cause the death coming within clause thirdly of Section 300 IPC. It is no doubt true, as rightly contended, that if read in isolation by itself the offence may be murder, but when closely scrutinised the evidence in this behalf, we find that the evidence cannot conclusively show that the offence can be brought within clause thirdly of Section 300 IPC.
7. We have seen the nature of the injuries and also the time gap between the time of infliction of the injury till the date of death which was two days after the injury was inflicted. We have no sufficient material as to the nature of the treatment given to the deceased during those two days.
8. Under these circumstances, though the injury had resulted in the death of the deceased, we cannot conclusively say that it was sufficient to cause his death. Accordingly, the offence would be one falling under Section 304 Part II of IPC. In the result, we set aside the conviction under Section 302 IPC and sentence of life imprisonment and convict the appellant under Section 304 Part II of IPC and impose a sentence of imprisonment for a period of seven years? rigorous imprisonment. The appeal is accordingly allowed to the above extent and the appellant shall undergo rigorous imprisonment for a period of seven years.
43. The decision in Harish Kumar's case (cited supra) has been followed by the Division Bench of this Court in Rajan and others vs. State, rep.by Inspector of Police, etc., reported in 2002 ? L.W. (Crl.) 789 and also in a later decision of this Court in Thamilarasan and others vs. State by Inspector of Police, Sirkazhi, reported in 2004 (1) MWN (Cr.) 208 (DB)., wherein, in Paragraph No.13, it has been held as follows:
?13. It is also relevant to refer another Division Bench decision of this Court in Rajan and others v. State, represented by Inspector of Police, etc., reported in 2002 (2) L.W. (Cri) 769. It was contended before the Division Bench that even assuming the prosecution has proved its case beyond all reasonable doubts, A-1 cannot be found guilty under Section302 IPC and at best he can be held guilty only under Section 304 Part II, IPC. In support of the said contention, out of two points referred to, the second point relates to non-examination of the Doctor who treated the deceased at CMC Hospital, Coimbatore. In that case, the deceased died after two days at the CMC Hospital, Coimbatore and that the nature of the treatment given to the deceased during that period has not been made known to the Court by marking the case sheet or by examining the Doctor concerned, who treated the deceased. While accepting the said contention, taking note of the fact that the Doctor who treated the deceased at the CMC Hospital, Coimbatore was not examined and case sheet not produced, the Division Bench has concluded thus:
(para 15) ?15.We also find substance in the submission that the non-examination of the Doctor, who treated the deceased at the CMC Hospital, Coimbatore and failure to produce the case sheet would come to rescue of the accused from being found guilty under Section 302 IPC. As rightly pointed out by the learned counsel for the appellant, had the case sheet been marked and the Doctor who treated the deceased was examined, the accused would have been in a position to examine the same and cross examine on the aspects required.? The Division Bench has also referred to a ruling of the Supreme Court in Harish Kumar v. State (Delhi Administration), reported in AIR 1993 S.C.973 wherrein the Supreme Court pointed out that the Court was not given proper materials to examine the nature of the treatment given to the deceased. After referring to the factual details, in the absence of examination of the Docotr, who treated the deceased and other materials like case sheet etc., the Supreme Court has observed thus:
?...We have seen the nature of the injuries and also the time gap between the time of infliction of the injury till the date of death which was two days after the injury was inflicted. We have no sufficient material as to the nature of the treatment ?given to the deceased during those two days.? In the case before the Division Bench, the deceased died after a period of two days at the C.M.C. Hospital, Coimbatore. Even for the treatment for the period of two days, due to non-examination of the Doctor, who treated the deceased at the said hospital and failure to produce the case sheet, accepted the submissions made by the learned counsel for the appellant and found that A-1 can be held guilty only under Section 304 Part II and not under Section 302 IPC.?
44. Now, once again coming to the facts of the present case, there was a domestic quarrel between the appellant / accused and the deceased regarding suspicion over her fidelity. The appellant / accused had with the intention to kill the deceased had poured petrol over her and set fire on her on 15.12.2012 and she was admitted in the hospital and had taken treatment for 20 days and thereafter, discharged by her relatives against medical advice and taken her back home and she died on 12.02.2013 nearly two months after the occurrence. The prosecution has not produced any document or let in any evidence with regard to the nature of treatment given to the deceased and there is no evidence to conclusively say that the injury was sufficient in the ordinary course of nature to cause death.
Moreover the time gap between the date of occurrence and the date of death is about 59 days. Under the above circumstances, though the burn injury caused by the appellant / accused with the intention to murder had resulted in the death of the deceased we cannot conclisively hold that the burn injury suffered by the deceased by the act of the appellant/accused was sufficient in the ordinary course of nature to have caused the death of the deceased. Accordingly, the offence would be one falling under Section 304 Part II IPC.
45. In the result, we set aside the conviction under Section 302 I.P.C. and sentence of life imprisonment, instead convict the appellant / accused under Section 304 Part II I.P.C. and impose a sentence of rigorous imprisonment for a period of ten years. The criminal appeal is allowed to the above extent and the appellant / accused shall undergo rigorous imprisonment for a period of ten years and also to pay a fine of Rs.1,000/-, and in default, to simple imprisonment for three months. The period already undergone by the appellant / accused shall be set off under Section 428 Cr.P.C. The Trial Court is directed to secure the presence of the appellant / accused to undergo the remaining period of imprisonment.
To:
1.The Sessions Judge, Mahila Court, Tiruchirappalli.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
3.The Inspector of Police, Srirangam (L&O) Police Station, Tiruchirapalli District..