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Madras HC : Dying declaration may not always be the truth

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated: 10.12.2015

RESERVED ON : 21.04.2015
PRONOUNCED ON : 10.12.2015

CORAM : THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

Criminal Appeal(MD) No.377 of 2006

Raja … Appellant/Accused No.1

Vs.

State represented by,the Inspector of Police
Nesamani Nagar Police Station, Kanyakumari District.
(Crime No.269/2002) … Respondent/Complainant

Appeal filed under Section 374 Cr.P.C. against the conviction and
sentence made in S.C.No.235 of 2003, dated 10.08.2006, on the file of the
learned Assistant Sessions cum Chief Judicial Magistrate, Nagercoil.

For Appellant : Mr.V.Kathirvelu,Senior counsel for Mr.K.Prabhu

For Respondent : Mr.T.Mohan,Additional Public Prosecutor.

:JUDGMENT

The appellant figured as first accused in S.C.No.235 of 2003 in the Court of the Assistant Sessions Judge cum Chief Judicial Magistrate, Nagercoil. He was prosecuted along with his mother Kamalam (second accused) for offences punishable under Sections 498-A and 306 of the Indian Penal Code and under Sections 3 and 4 of the Dowry Prohibition Act. After trial, by a judgment dated 10.08.2006, the trial Judge acquitted the second accused ? Kamalam of all the offences for which she was prosecuted, but convicted the appellant – Raja (A1) for offences under Sections 498-A and 306 IPC alone and acquitted him of the offences under Sections 3 and 4 of the Dowry Prohibition Act. The learned trial Judge imposed a sentence of three years rigorous imprisonment, a fine of Rs.5,000/- and a default sentence of six months rigorous imprisonment for the offence under Section 498-A IPC and ten years rigorous imprisonment, a fine of Rs.5,000/- and a default sentence of one year rigorous imprisonment for the offence under Section 306 IPC. As against the said conviction as well as sentence, the first accused ? Raja has preferred this appeal before this Court under Section 374(2) of the Code of Criminal Procedure on various grounds set out in the appeal petition.

2.For the sake of convenience and in order to avoid confusion, the appellant shall be referred to as accused No.1 and his mother Kamalam, who was acquitted by the trial Court, shall be referred to as accused No.2 in accordance with their ranks before the trial Court. The respondent shall be referred to as the prosecution.

3.The case of the prosecution, as understood from the charge sheet and the evidence adduced on the side of the prosecution, can be summarised as follows;

(i) The first accused ? Raja is the husband of deceased Sheela. Their
marriage took place on 24.04.2002. The wedding card printed and distributed
for the same is marked as Ex.P3. The second accused – Kamalam is the mother
of the first accused. PW1 -Thangam and PW2 ? Velmurugan are the parents of
deceased Sheela. PW3 ? Rajesh is the son of PWs.1 and 2. The marriage of
Sheela with the first accused – Raja was arranged by PW4 ? Rajamani. The
parents of Sheela offered to give her 25 sovereigns of gold jewels, but the
second accused – Kamalam demanded three more sovereigns of gold jewels and
the same was agreed to by the parents of the deceased. In addition to 28
sovereigns of gold jewels, a sum of Rs.50,000/- was agreed to be paid. At
the time of betrothal, a sum of Rs.1,000/- was paid and the balance amount of
Rs.49,000/- was paid to the accused persons at their residence on 07.04.2002
by PW2 – Velmurugan in the presence of PW3 ? Rajesh, PW4 – Rajamani and
others.

(ii) Sheela lived in the house of the accused for about two months
after her marriage. Thereafter, she met her mother (PW1) and informed her
that the accused were demanding a sum of Rs.40,000/- to clear the debts
incurred by them for the marriage and that she was going to pledge her jewels
and make payment. PW1 advised her to maintain patience assuring that she
would start a chit and arrange funds by December 2002. Meanwhile, the second
accused contacted PW1 through the telephone of PW11 – Murugan bearing
No.220280 and made a demand of Rs.40,000/- to discharge the debts incurred by
them for the marriage of the first accused with Sheela. Further more, the
first accused was addicted to alcohol drinking, got the jewels of Sheela and
pledged them under Exs.P5 and P6 respectively for a sum of Rs.8,000/- and
20,400/- on 29.06.2002 and 23.07.2002. Thereafter, at about 20.30 hours on
11.08.2002 the deceased Sheela attempted self-immolation by pouring kerosene
on her and setting her on fire. The same was informed to PW1 over phone.
After the arrival of PWs.1 to 3, Sheela was taken in an ambulance to a
hospital called ‘Irudhayams Hospital’, at Nagercoil and the Police were also
informed.

(iii) PW22 ? Dr.Ethayarajan is the owner of the said hospital. While
admitting Sheela in the said hospital at 9.30 p.m. on 11.08.2002, he found
her with 100% burns, prepared Ex.A8 ? Accident Register and gave her
treatment. In the said occurrence, the first accused – Raja also sustained
30% burns, for which he was admitted in the said hospital and treated by
PW22. The Accident Register prepared for his admission is Ex.P10. As the
condition of Sheela was serious, a request was made to the Judicial
Magistrate No.II, Nagercoil for recording a dying declaration by PW31, the
then Sub Inspector of Police under Ex.P16. PW28, the then Judicial Magistrate
No.II, Nagercoil, recorded her dying declaration under Ex.P17 on 11.08.2002
between 11.00 to 11.45 p.m. In the dying declaration, PW22 certified that
Sheela was conscious, oriented and fit for giving statement. The same is
marked as Ex.P9. On 12.08.2002 at 9.00 a.m. Sheela died at ‘Irudhayams
Hospital’, Nagercoil. Before her death, her statement was recorded by PW21 ?
Mr.Solamon, Head Constable, under Ex.P7 on 11.08.2002 at 11.00 p.m. and kept
it as a petition assigning Petition No.198 of 2002. PW31 ? Mr.Dhanapal, who
was the then Sub Inspector of Police, Nesamani Nagar Police Station,
Nagercoil, received the death intimation, converted Petition No.198 of 2002
into a criminal case assigning Crime No.269 of 2002 for investigation under
Section 174 Cr.P.C., prepared Ex.P21 ? First Information Report in the
printed format and sent the same to the higher officials.

(iv)After the case was registered under Section 174 Cr.P.C., since
Sheela died within seven years from the date of her marriage, inquest was
conducted by PW34 ? Mrs.Lilly, the then Revenue Divisional Officer/Sub
Divisional Magistrate, Nagercoil and she prepared Ex.P24 – Inquest Report.
After inquest, she sent the dead body of Sheela to the Government
Headquarters Hospital, Nagercoil for autopsy. PW23 ? Dr.Jesu Thangam, along
with Dr.Sivakumari, conduced autopsy at Government Headquarters Hospital,
Nagercoil and prepared Ex.P11 – Postmortem Examination Report. After receipt
of the report regarding hyoid bone and the viscera report under Ex.P13, they
issued final opinion under Ex.P12 opining that Sheela appeared to have died 6
to 8 hours prior to autopsy due to burns.

(v)PW29 – Mr.T.Jeyachandran, the then Deputy Superintendent of Police,
Nagercoil took up the case for investigation, visited the place of
occurrence, prepared Ex.P18 – Observation Mahazar in the presence of the
witnesses Veerapandi (PW26) and Suresh Kumar and recovered MO.5 ? a burned
clothe; MO.6 ? a party burned match stick; MO.7 ? a partly burned full-
sleeves shirt; MO.8 ? cigarette packet containing four scissors filter
cigarette; MO.9 – Beedi bundle; MO.10 – Match Box; MO.11 ? Plastic Can;
MO.12 ? partly burned Lungi; and MO.13 – Plastic Can under Ex.P19 – Mahazar.
He also prepared Ex.P20 – Rough Sketch. Then, during the course of his
investigation, he went to the hospital and examined the witnesses there and
recorded their statements.

(vi) Further investigation was taken up by PW32 ? Mr.Chandrabose, the
then Inspector of Police, on the instructions of the Deputy Superintendent of
Police, on 15.08.2002. He altered the case into one for offences under
Sections 498-A and 306 IPC and under Section 3 of the Dowry Prohibition Act,
prepared Ex.P22 – alteration report and sent it to the Magistrate. He
arrested the second accused Kamalam at 18.00 hours on 27.08.2002 and made
recoveries of a MO.14 – four sovereign ?Pitchipoo chain?, Ex.P5, Ex.P6 and
Ex.P23 receipts evidencing pledge of certain jewels. He also arrested the
first accused – Raja at 16.00 hours on 03.09.2002 at Irudhayams Hospital,
Nagercoil. Thereafter, the case was investigated by PW30 ? Mr.Venugobala
Krishnan, the then Inspector of Police, Nesamani Nagar Police Station and he
examined some of the witnesses and recorded their statements. After PW30 ?
Mr.Venugobala Krishnan, PW35 – Mr.Murugan took up the further investigation,
collected the medical records and other materials, completed the
investigation and submitted a final report on the file of the Judicial
Magistrate Court No.II, Nagercoil alleging commission of the offences
punishable under Sections 498-A and 306 of the Indian Penal Code and under
Sections 3 and 4 of the Dowry Prohibition Act by the accused persons.
4. The case was taken on file by the Judicial Magistrate No.II,
Nagercoil as P.R.C.No.20/2003 and the said Judicial Magistrate committed the
case for trial to the Court of Session, Kanyakumari District. After the case
was committed to the Court of Session, it was taken on file as S.C.No.235 of
2003 and made over to the learned Assistant Sessions Judge cum Chief Judicial
Magistrate, Nagercoil. Necessary charges were framed in the trial Court. The
accused pleaded not guilty.

5.In order to prove its case, the prosecution examined 35 witnesses as PWs.1 to 35, marked 29 documents as Exs.P1 to P29 and produced 14 material objects as MOs.1 to 14. Besides the witnesses referred to in paragraph No.3, PW5 ? Suyambulingam, PW6 ? Louis, PW7 ? Ramalakshmi, PW8- Kavitha, PW9 ? Vasanthan, PW10 ? Balaiah Nadar, PW13 ? Aaththiraj, PW14 – Arputhamani and PW15 ? Visalakshi were also examined to speak about the alleged demand of dowry and the occurrence leading to the death of Sheela. PW12 – Chrishthudass was examined as a person, who gave information to the Police over phone regarding the occurrence and contacted Irudhayams Hospital to send Ambulance. PW16 – Ponraj was examined in order to prove that the second accused borrowed a sum of Rs.9,000/- from him. PW17 – Suyambu and PW18 ? Sundar were examined to prove the pledge of the jewels under Exs.P5 and P6. PW19 ? EepanKesari was examined as one of the persons, who visited the place of occurrence and sent the deceased and the first accused who were found with burns to the hospital by an ambulance van. PW20 ? Xavier is the driver of the ambulance van through which the deceased and the first accused were taken to the hospital.

6.After completion of recording of examination of the evidence adduced on the side of the prosecution, the attention of the accused were drawn to the incriminating materials found in such evidence and they were questioned under Section 313(1)(b) regarding those incriminating materials and generally in respect of the case against them. They denied such evidence against them and pleaded that they were innocent. No witness was examined and no document was marked on the side of the accused.

7. The learned trial Judge heard the arguments advanced on both sides, considered the evidence in the light of the points urged in the arguments and upon such consideration, held the first accused alone guilty of the offences under Sections 306 and 498-A IPC, convicted him for the said offences and sentenced him as indicated above. As against the said conviction and sentence and seeking total acquittal, the first accused has come forward with the present appeal.

8.This Court heard the arguments advanced by Mr.V.Kathirvel, learned senior counsel for Mr.K.Prabhu, counsel on record for the appellant and by Mr.T.Mohan, learned Additional Public Prosecutor appearing for the respondents.

9.The learned senior counsel for the first accused (appellant) vehemently contended that the trial Court, without properly appreciating the evidence adduced on the prosecution side, chose to hold the first accused alone guilty of the offences under Sections 306 and 498-A IPC, while acquitting the second accused of all the offences for which she was prosecuted; that the very same yardstick applied to the second accused ought to have been applied to the first accused, which would have brought the result of acquittal of the first accused also and that on the other hand, the learned trial Judge, on suspicions and surmises, chose to hold the first accused guilty of the above said offences, without taking note of the cardinal principle of criminal jurisdiction that the charge against the accused should be proved by the prosecution beyond reasonable doubt. It is the further contention of the learned senior counsel for the appellant that there was delay in preferring the complaint and registering the case, which delay could have been used for concoction and embellishment to foist a case against the first accused and his mother. The learned senior counsel for the appellant (A1) contended further that the very fact that the Police chose to refrain from registering a case based on the alleged statement of Sheela recorded by PW21 ? Mr.Solamon and the fact that they chose to keep it only as a petition, would give a reasonable suspicion that the said statement could not have any contained incriminating information and that the same was burked and the statement implicating the accused came to be substituted subsequently after the death of the deceased. The learned senior counsel for the first accused (appellant) pointed out the contradictions between the evidence of PW21 and PW3, who is said to have signed in Ex.P7 – statement as an attestor and the said discrepancy alone would be enough to show the gradual improvement and embellishment made by the Police with a view to spread a web to entangle the accused persons. The learned senior counsel for the appellant/first accused also referred to discrepancies regarding the amount allegedly paid on the date of betrothal and the person to whom it was paid and also the date on which and the person to whom the balance amount was paid.

10.The learned senior counsel for the appellant (first accused) contended further that the very fact that the first accused also sustained extensive burns while trying to save the deceased, for which he had to take treatment for more than three months as inpatient, and the absence of any explanation for the same by the prosecution will make the prosecution case of abetment of suicide and cruelty / harassment improbable. It is also the contention of the learned senior counsel for the first accused that the dying declaration recorded by the Judicial Magistrate is not reliable, insofar as the Judicial Magistrate (PW.28) herself admitted that she did not ensure as to whether no other person was there at the time of recording of dying declaration of Sheela and that the same in conjunction with the other admissions made by the prosecution witnesses and the discrepancies found in the evidence of the Police Officer as to when the request for recording dying declaration was made, would make the dying declaration unreliable. It is also the contention of the learned senior counsel for the first accused (appellant) that the very admission made by PW1 that she had tutored the deceased as to what statement should be given to the Judicial Magistrate as dying declaration would make the dying declaration unreliable. It is the further contention of the learned senior counsel for the appellant (A1) that apart from some evidence to the effect that the accused wanted a sum of Rs.40,000/- to clear the debts incurred by them and the evidence regarding the pledging of some of the jewels, there is no evidence to show that the accused, at any point of time, treated the deceased Sheela with cruelty or harassed her demanding dowry and that in the absence of such clear and cogent evidence, the conviction of the first accused for offences under Sections 498-A and 306 IPC cannot be legally sustained and the judgment of the trial Court has got to be set aside in this regard and the appellant (first accused) should also be acquitted.

11. Per contra, it is the contention of the learned Additional Public Prosecutor that there are ample evidence to show that a demand was made not only at the time of negotiations for the marriage but also after the marriage. It is the further submission of the learned Additional Public Prosecutor that since Sheela died within seven years after her marriage (to be precise within four months after the marriage) due to burns, the presumption contemplated under Section 113-A of the Indian Evidence Act stands attracted. It is his further contention that minor contradictions and trivial aspects are sought to be blown out of proportion on the side of the first accused (appellant) to escape from the clutches of law and that the finding of the Court below that the charges under Sections 498-A and 306 IPC against the first accused stood proved beyond reasonable doubt, is a well considered finding which does not warrant any interference in the appeal. The learned Additional Public Prosecutor contends that the dying declaration recorded by the Judicial Magistrate has to be given due weightage and the same corroborated by the evidence of the other prosecution witnesses viz., PWs.1 to 5, shall be enough to prove beyond reasonable doubt the commission of the offences under Sections 498-A and 306 IPC by the first accused (appellant). Based on the above said contention, the learned Additional Public Prosecutor prays for dismissal of the appeal.

12.This Court paid its anxious consideration to the rival contentions made on both sides and also perused the materials available on record.

13. After registration of the case converting the petition number into a crime number, PW34 ? the Revenue Divisional Officer / Sub Divisional Magistrate conducted an inquest on 12.08.2002 between 15.05 hours and 15.40 hours in the presence of Panchayatdhars. The inquest report has been marked as Ex.P24. PW34, who conducted the inquest, noted the verdict of the Panchayatdhars that due to the drinking habit of the first accused, his wife Sheela committed suicide by self-immolation after dousing her with kerosene on 11.08.2002. After inquest, the body was sent to the Government Headquarters Hospital, Nagercoil. The report of the Revenue Divisional Officer / Sub Divisional Magistrate, Nagercoil sent to the Deputy Superintendent of Police has been marked as Ex.P29. Though the initial investigation was stated to be made by PW29 the Deputy Superintendent of Police, there is no document to show that any requisition for conducting autopsy was sent by him. On the other hand the evidence of PW23 – Dr-Jesu Thangam, who conducted autopsy along with Dr.Sivakumari, on the dead body of the deceased Sheela at Government Headquarters Hospital, Nagercoil on 12.08.2002 between 16.30 and 17.30 hours, would state that the post-mortem examination was conduced pursuant to the requisition sent by the Revenue Divisional Officer, Nagercoil. PW34, the then Revenue Divisional Officer, who conducted inquest, simply states that she sent the dead body to the Government Hospital through the Police and she did not refer to any requisition in writing to conduct postmortem examination. In fact, the Constable or the Head Constable through whom the body was sent to the Government Headquarters Hospital for postmortem examination was examined as a witness on the side of the prosecution. The request for postmortem examination was not marked as a document on the side of the prosecution. Had it been produced and marked, the history of the case which would have been noted therein, can be ascertained. No acceptable reason has been shown on the side of the prosecution for not producing the request for postmortem examination as an exhibit and for the failure to examine the Police Officer through whom the same was sent to the hospital. In normal circumstances, the omission to do so may not be taken serious note of. But in the peculiar facts and circumstances of the case, which shall be discussed hereunder, the above omission will assume significance.

14. PW23 – Dr.Jesu Thangam speaks about the autopsy conducted by him along with Dr.Sivakumari. The postmortem examination report is Ex.P11. Though viscera and hyoid bone were sent to the Department of Forensic medicine for chemical examination, hyoid bone report has not been produced. However, the viscera report has been marked as Ex.P13. No poison was detected in the internal organs of the deceased. According to the testimony of PW23 ? Dr. Jesu Thangam, he gave the final opinion under Ex.P12, after receiving the hyoid bone report to the effect that there was no sign of fracture and the viscera report to the effect that no poison was detected in the internal organs. The final opinion given by him and Dr.Sivakumari reads as follows:- ?The deceased would appear to have died of burns.?

As per the postmortem examination certificate marked as Ex.P11, the time of death was fixed to be 6.00 to 8.00 hours prior to the postmortem examination. Thus, the death would have occurred between 8.40 a.m. and 10.40 a.m. on 12.08.2002. As per the evidence of PW22 – Dr.Ethayarajan, Sheela died at about 9.00 a.m. on 12.08.2002. She was admitted in the said hospital at 9.30 p.m. on 11.08.2002. In Ex.P8 – Accident register, the condition of the patient and the relationship of the persons who brought her to the hospital and also the nature of the injuries were noted. The information regarding the cause of such injuries was omitted to be noted in the accident register marked as Ex.P8. The death intimation sent by Dr.Ethayarajan of Irudhayams Hospital Private Limited to the Police is also on record, but the same has not been marked as an exhibit on the side of the prosecution.

15. PW31 ? Dhanapal, the then Sub Inspector of Police at Nesamani Nagar Police Station, is said to have received the death intimation, based on which he converted the Petition bearing No.198/2002 registered by the Head Constable, into a criminal case assigning Crime No.269/2002 under Section 174 of the Code of Criminal Procedure. Though the first information report prepared in the printed format came to be marked as Ex.P21, the death intimation received from the hospital has not been marked as an exhibit on the side of the prosecution. Further more, it is obvious from the evidence of PW31 that no investigation could have been conducted by PW31 as no case was registered for an punishable offence or a suspected cognizable offence prior to Ex.P21 ? First Information Report. The first part of his testimony is to the effect that he came into the picture only after receiving the death intimation of Sheela at 10.30 hours on 12.08.2002, whereupon the criminal case came to be registered by him under Ex.P21 – First Information Report. However, in the later part of his testimony, he has stated that it was he who sent the requisition to the Judicial Magistrate No.II, Nagercoil for recording the dying declaration of Sheela. The said request letter has been marked as Ex.P16. This Court wonders how PW31 could have sent Ex.P16 requisition letter to the Judicial Magistrate for recording the dying declaration of deceased Sheela, when he came into the picture only on receipt of the death intimation and only after receipt of the death intimation, the criminal case came to be registered.

16. Two statements of deceased Sheela came to be recorded on 11.08.2002. According to the prosecution, the first one is the dying declaration recorded by PW28 ? Judicial Magistrate No.II, Nagercoil. The dying declaration has been marked as Ex.P17 and the certificate of the Doctor regarding consciousness and the fit condition of the patient to give statement which forms part of the dying declaration recorded by the Judicial Magistrate, has been marked as Ex.P9. As the requisition for recording the dying declaration of Sheela is stated to have been sent by PW31 – Sub Inspector of Police, who came into the picture only after the receipt of the death intimation, it is quite obvious that the prosecution has not come with the true version without suppressing material facts. The same may be the reason why the death intimation report has not been marked as a separate document. In the death intimation report, an endorsement came to be made to the following effect:

?Sir, received by me at 10.30 hours on 12.08.2002 and registered a case in Nesamani Police Station Crime No.269 of 2002 U/s.174 Cr.P.C. – signed S.I. 11/8?

If at all the case was registered on 12.08.2002 at 10.30 hours, how such an endorsement came to be made bearing the signature of the Sub Inspector of Police with the date 11.08.2002 cannot be explained. The same is the reason why the said document was not marked as an exhibit on the side of the prosecution. The above said aspect has been pointed out in order to show that there has been concoction and many of the documents could have been brought into existence only after the death of the deceased Sheela. The same is the reason why no case was registered based on the statement of Sheela allegedly recorded by the Police.

17. The ingenious device adopted by the prosecution is to say that the statement of Sheela recorded by the Police was assigned only a petition number. If at all the statement and the dying declaration contained any incriminating material against the accused, the Police would not have chosen to assign a petition number without registering a criminal case. The statement was allegedly recorded by PW21 on 22.45 hours on 11.08.2002. As PW21 was said to be in charge of the General Diary of the Police Station, he claims to have registered the statement only as Petition No.198 of 2002. The said statement contains her thumb impression which, according to the prosecution, is the left hand thumb impression of Sheela. According to the prosecution, the said statement was recorded in the presence of PW3 – Rajesh i.e., none other than the brother of the deceased and he is said to have attested the complaint as a witness. His signature as an attestor of the complaint has been marked separately as Ex.P4. Though PW3 has stated that the Police came to the hospital, recorded the statement of his sister Sheela and obtained her thumb impression and that he signed as an attestor, he did not state the time at which the said statement was recorded. However, during cross examination, he made a categorical admission that he did not remember the time at which he signed in the complaint as an attestor. He also admitted that he could not state the place within the hospital where his signature was obtained in the statement of Sheela. The further admission made by him is to the effect that he did not know who scripted the statement and when such statement was written and that when he signed in that document will show that the statement had already been written and he was not present at the time of recording of the statement. Therefore, the case of the prosecution that Ex.P7 statement was recorded by PW21 in the presence of PW3 is doubtful and the same cannot be believed.

18. It is a fact not disputed but admitted that the deceased Sheela died at 9.30 a.m. on 12.08.2002. The evidence of PW22 – Dr.Ethayarajan and the evidence of PW28 – Judicial Magistrate are to the effect that the dying declaration of Sheela was recorded at 10.50 p.m. on 11.08.2002. According to the evidence of PW28, she received the requisition under Ex.P16 at 10.50 p.m. and at 11.00 p.m. she started examining deceased Sheela and recorded her dying declaration marked as Ex.P17 and completed at 11.45 p.m. on 11.08.2002. According to PW1, who is said to have been with the deceased in the hospital does not speak about recording of Sheela’s statement by the Police. The evidence of PW2 – father of the deceased is also to the same effect. He has not spoken about either recording of dying declaration of Sheela by PW28 or recording of statement of Sheela by the Police. PW3 – who is said to have been in the hospital, witnessed the Police recording the statement of Sheela, and signed it as an attestor, has not spoken anything about the dying declaration recorded by the Judicial Magistrate or even the visit of the Judicial Magistrate to record the dying declaration. The above said aspect, coupled with the endorsement found in the death intimation, which has not been marked by the prosecution, will make it clear that Ex.P7 statement should have been created antedating the same. It should also be noted that Ex.P7 contain the following endorsement:

?Sir, Recorded by me at 22.45 hours on 11.08.2002 and came to
statement at 23.00 hrs. and entered as petition No.198/2002 and submitted for
SI’s perusal ? sign / 11.08.2002?
There is an annexure to Ex.P7 and the annexure contain following the
endorsement:
?Recorded by me.
sd. 11/08/2002 @ 10.15 p.m.?

The signature found in Ex.P7 does not tally with the signature found in the said endorsement in the annexure. It was stated to be recorded at 10.15 p.m., whereas Ex.P7 is stated to be recorded at 10.45 p.m. Hence, it creates a reasonable suspicion that earlier documents came to be suppressed and new documents came to be brought into existence probably with concoction and embellishment, in order to rope in the accused persons. As such, no credence can be given to the evidence of PW21 and Ex.P7 statement. The same have got to be omitted from the scope of consideration as they are found to be unreliable because of the concoction.

19.The remaining piece of evidence is the dying declaration (Ex.P17) recorded by the Judicial Magistrate who was examined as PW28. Though there is a presumption that the persons in dead-bed expecting death at any moment will not tell a lie, such a presumption shall not have universal application. It depends upon the facts and circumstances of each case. If the statement recorded as the dying declaration of the deceased inspires the confidence of the Court, then there would not be any impediment for the Court to act on such dying declaration to base a conviction. However it shall be prudent to seek corroboration. Such dying declarations shall have weight provided it is not proved that maker was not exposed to the tutoring of others before making such dying declaration. In the case on hand, it is the admission of PW1 that her daughter was tutored by them as to how she should give her statement as dying declaration to the Judicial Magistrate.

The relevant portion of hertestimony in vernacular is extracted hereunder:

?khIp];l;onul; M];gj;jphpf;F te;jpUe;jhh;. mth; nghFk;;nghJ ehd; ghh;j;njd;. khIp];l;onul;olk; vd;d brhy;yntz;Lk; vd;W ehd; vd; kfsplk; brhy;ypf;bfhLj;J mJnghy; vd;Dila kfSk; khIp];l;onul;olk; Kiwahf brhd;dhs; vd;why; Mkhk;.?

In order to nullify the admission made in the cross examination, defying the objections made on behalf of the accused, the trial Court seems to have allowed the prosecution to put a question as to whether she saw her daughter after she was taken to the hospital. The answer given by her was in the negative. Such an attempt to give a total go by to the evidence in the chief examination and also the admission made in the cross examination would amount to a mockery of justice, throwing the rules regarding recording of evidence in air. Further, PW31 ? Dhanapal, the then Sub Inspector of Police, is said to have registered the case on receipt of the death intimation. We have seen supra that PW31 came into the picture only after receipt of the death intimation, whereupon he registered a case under Ex.P21 ? First Information Report. As such, the requisition allegedly sent by him to the Judicial Magistrate under Ex.P16 will give rise to a reasonable suspicion that the initial part of the investigation which was done by PW31 came to be burked and new documents came to be brought into existence.

20.Further more, PW28, the Judicial Magistrate also candidly admitted that she did not make a note as to whether the relatives and friends were there at the time of her recording the dying declaration of Sheela. There is also nothing to show that the Judicial Magistrate tried to ascertain whether the deceased was briefed as to what should be stated by her in the dying declaration. In view of the above said infirmities and discrepancies, it shall not be in the interest of justice to rely on the dying declaration of Sheela marked as Ex.P17.

21.However, the prosecution relies on Section 113-A of the Evidence Act and it is contended on behalf of the prosecution that in case of suicide by a married woman within seven years after her marriage, there shall be a presumption that her husband or such of the relatives of her husband, who had subjected her to cruelty, abetted her suicide. According to the submissions made by the learned Additional Public Prosecutor, cruelty was caused to the deceased by her husband and mother-in-law (A1 and A2) in the form of demanding dowry and also by the first accused in another form by pledging most of the jewels of deceased Sheela and also by his drinking habit which resulted in frequent beating of the deceased Sheela. The learned Additional Public Prosecutor relies on the evidence of PWs.1 to 4 in support of the case of the prosecution that there was a demand and acceptance of dowry, when the marriage of the deceased with the first accused was arranged. The above said witnesses spoke to the effect that the parents of the deceased volunteered to adorn their daughter with 25 sovereigns of gold jewels and that the accused persons demanded three more sovereigns of gold jewels. In this regard, though PW1 in her evidence stated that they agreed to give 28 sovereigns of gold jewels, it is her statement in evidence that 27 sovereigns of gold jewels were given to her daughter Sheela. It is not the evidence of PW1 that any of the accused demanded the balance one sovereign also. Even though PW2 – Velmurugan would have stated that the accused demanded 28 sovereigns of gold jewels, his evidence is silent as to the quantity of the gold jewels given to his daughter Sheela. The evidence of PW3, the brother of the deceased is to the effect that 28 sovereigns of gold jewels were given to his sister Sheela at the time of her marriage. The same is in contradiction with the evidence of his mother viz., PW1. PW4 ? Rajamani, who is said to have arranged the marriage between the first accused and deceased Sheela does not say in unambiguous term that there was a demand as spoken to by PWs.1 to 3. He simply states that on the bride?s side, it was agreed to adorn the bride with 28 sovereigns of gold jewels and give a cash of Rs.50,000/-. The same is more in the nature of a revelation of the readiness of the parents of the deceased rather than a demand made by the accused persons. PW4 also does not specifically state the quantity of gold jewels with which the deceased Sheela was adorned at the time of her marriage. Above all, an attempt was made to show that even a gold chain presented by the bride in exchange of a gold bangle (fhg;g[) presented by the bridegroom (first accused) at the time of betrothal, as dowry.

22. So far as the payment of cash is concerned, there are vital contradictions in the evidence adduced on the side of the prosecution. It is the customary practice for the bridegroom’s side to make a nominal payment in cash to the bride at the time of betrothal and the said amount shall be called betrothal money (ghpr gzk;). Quite contrary to the customary practice, the prosecution witnesses have stated that a sum of Rs.1,000/- was paid by the bride’s side to the accused (bridegroom and his mother) at the time of betrothal. Even in this regard there are certain contradictions. According to PW1, a sum of Rs.1,000/- was paid by them to the accused at the time of betrothal. But, according to PWs.2 to 4, a sum of Rs.1001/- was paid. PWs.1 and 3 have stated that the amount was paid to the head of the village (Ch; jiyth;), whereas PW4 says that it was handed over to the senior paternal uncle of the first accused. There is absence of evidence to the effect that the senior paternal uncle of the first accused was the head of the village at that point of time. PW6 ? Louis is none other than the sister?s husband of PW1. According to his evidence, the first accused presented a ring (nkhjpuk;) to deceased Sheela at the time of betrothal and the parents of Sheela gave the first accused a gold garland meaning ?chain? which is quite contrary to the evidence of PW3 that the first accused presented a gold bangle (fhg;g[) to deceased Sheela at the time of betrothal. PW6 does not speak about the payment allegedly made at the time of betrothal.

23.A sum of Rs.49,000/- being the balance amount, after deducting the amount allegedly paid at the time of betrothal from the amount agreed to be paid, is claimed to have been paid to the accused on 07.04.2002 at their residence. PW2 to PW4, PW6 and one Nagarajan were the persons who were allegedly present at the time of making such payment and admittedly, PW1 was not present. According to PW2, the balance amount was handed over to the first accused. But, according to PW3, the said sum of Rs.49,000/- was handed over to the senior paternal uncle of the first accused. In the light of the above said contradictions, an improvement was made in the evidence of PW4, who came to be examined subsequently. He has stated that the amount was handed over to the first accused and he in turn handed over the same to his senior paternal uncle. The evidence of PW5, in this regard, is entirely different. According to him, the said amount was handed over to the ?father? of the first accused. The other witnesses examined on the side of the prosecution to prove the above said aspect of the prosecution case pleaded absence of knowledge and they did not support the prosecution case in this regard. In fact, PW5 and PW7 to PW10 have also been cross examined on the side of the prosecution with the permission of the Court to prove the above said aspect. Despite the same, no answer favourable to the prosecution case came to be elicited from them. In view of the above said facts and circumstances, the trial Court itself held that the alleged demand of dowry and acceptance of dowry by the accused persons before and at the time of marriage was not substantiated by the prosecution by reliable evidence.

24. So far as the alleged demand of Rs.40,000/- which, according to the prosecution, was made two months after the solemnisation of the marriage, none of the prosecution witnesses has stated that such a demand was made by the first accused. The allegation is only against his mother viz., the second accused, as if she made a demand over phone and also directly when she met PW1. PW1 and PW2 do not refer to any such telephonic demand or a personal demand made by the second accused. It is the evidence of PW1 that her daughter alone met her and asked her to arrange money for the discharge of the debts of her husband. However, an improvement was made through PW3, who spoke to the effect that following Sheela, the second accused also came, met PW1 and asked her to give some money (bfhQ;rk; igrh ghh;j;Jj; jhUq;fs;) to discharge their debts. The introduction of PW11 ? Murugan, in this regard, seems to be a stage managed show with a view to improve the case of the prosecution as to the alleged demand of Rs.40,000/- made by the second accused. It is his evidence that though PW1 is his relative and she lives in a house situated just behind his house, at no point of time, except the date on which the second accused called her over phone, PW1 used his telephone. According to PW3, his sister (Sheela) came with the request two months after her marriage and only thereafter, the second accused came and met PW1 to make the request for money. But, PW11 says that within 20 or 25 days after the marriage of Sheela the phone call came. Even otherwise, PW11 could not have heard the conversation, especially, what was spoken by the second accused. Hence, he would conveniently say that he ascertained the particulars of the conversation by making an enquiry with PW1. PW1 has not stated anything about such telephonic conversation. As such the evidence of PW11 will be hit by the rule against hearsay evidence. Hence, we have to come to a necessary conclusion that the alleged direct demand made by the second accused has not been proved by the prosecution by adducing reliable evidence. The same was the reason why the trial Court came to the conclusion that there was no proof of demand of dowry on the part of either of the accused persons which resulted to in their acquittal of the charges for offences under Sections 3 and 4 of the Dowry Prohibition Act. As against the said acquittal, the State has not preferred any appeal.

25. So far as the offences under Sections 498-A and 306 IPC, the second accused has been acquitted by the trial Court. The acquittal of the second accused in respect of the said offences has not been challenged by the State by preferring an appeal. She was acquitted on the premise that the alleged demand of money made by her was not proved and no act of cruelty committed by her against the deceased Sheela was proved. On the other hand, the trial Court has held that the first accused (appellant herein) committed cruelty on his wife (Sheela) by pledging of her jewels within 3+ months from the date of marriage. Again, relying on the dying declaration of the deceased Sheela recorded by PW28 – Judicial Magistrate which has been marked as Ex.P17, the learned trial Judge held that the first accused (appellant herein) was proved to have beaten his wife (Sheela) very often under the influence of alcohol to hold him guilty of the offence under Section 498-A IPC. By applying the presumption contemplated under Section 113-A of the Evidence Act, the learned trial Judge held the first accused (appellant herein) guilty of the offence under Section 306 IPC also. For better appreciation, Section 113-A of the Evidence Act is reproduced hereunder:-

? 113A. Presumption as to abetment of suicide by a married woman.- When
the question is whether the commission of suicide by a woman had been abetted
by her husband or any relative of her husband and it is shown that she had
committed suicide within a period of seven years from the date of her
marriage and that her husband or such relative of her husband had subjected
her to cruelty, the court may presume, having regard to all the other
circumstances of the case, that such suicide had been abetted by her husband
or by such relative of her husband.?

A consideration of the said section will make it clear that the said
provision prescribes two conditions for drawing such a presumption. The first
one is that ?the woman should have committed suicide within seven years of
the marriage? and the second one is that ?she should have been subjected to
cruelty by her husband or such of his relatives, who is sought to be
punished?. So far as the first condition is concerned, there is no dispute
that the death of Sheela was a suicide by self-immolation. The evidence of
the medical officer, who treated her viz., PW22- Dr.Ethayarajan, the
evidence of PW23 – Jesu Thangam who conducted autopsy, Ex.P11 ? Post-mortem
Examination Report, Ex.P13 – Viscera Report and Ex.P12 – final opinion of
PW23 will show that the death of Sheela was a suicide by self-immolation.
Within four months from the date of her marriage such death has occurred and
hence, the first condition stipulated in Section 113-A of the Evidence Act
stands established.

26. So far as the second condition is concerned, it is the contention made on the side of the prosecution that the very fact that the first accused pledged almost all the jewels of the deceased within 3-1/2 months from the date of her marriage; that by his drinking habit he used to beat the deceased Sheela very often and that the same will show that he committed cruelty as defined under Section 498-A IPC. Section 498-A IPC defines the term ?cruelty? as follows; ?(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical) of the woman; or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.?

As we have seen supra, there is no proof of demand of money or property or valuable security in connection with the marriage, or otherwise for continuance of the marital relationship. In fact, both the accused were acquitted of the offences under Sections 3 and 4 of the Dowry Prohibition Act. Absolutely there is no evidence to show that the first accused (appellant herein), at any point of time demanded money from the parents of the deceased Sheela. The second accused as against whom there is some evidence was acquitted by holding that such demand was not proved. On the other hand, the first accused (appellant herein) alone was held by the trial Court guilty of the offences punishable under Sections 498-A and 306 IPC, mainly relying on the dying declaration and the alleged statement of deceased Sheela marked as Exs.P17 and P7 respectively.

27. We have seen supra that Ex.P7 is doubtful. We have also seen that Ex.P17 – dying declaration is not reliable as there are circumstances to warrant strong suspicion that Sheela could have been briefed and tutored to implicate the first accused/appellant. Even in Ex.P7 the reason for her suicide has been assigned to be the drinking habit of the first accused despite her advise and also the fact that on the fateful day the first accused, after attending a relative’s funeral ceremony, came in an inebriated mood. The statement found in Ex.P7 is also to the effect that the deceased herself pledged her jewels and discharged the debts of her husband. Therefore, there is nothing in the said statement to the effect that the first accused used to beat her. However, an annexure found with Ex.P7 contains an averment to the effect that even after she set her on fire, the accused did not make any effort to save her. On the other hand, it remains an undisputable fact that in the occurrence the first accused (appellant herein) also sustained 30% burns which was certified to be grievous. PW22 – Dr.Ethayarajan in his evidence has clearly admitted that the first accused was also admitted with burns for treatment in his hospital and he took treatment as an inpatient. As per his evidence and Ex.P10 – Accident Register, he was admitted as inpatient on 11.08.2002 and discharged on 03.11.2002. It seems, meanwhile he was arrested, while he was taking treatment as an inpatient in the said hospital. It is also obvious from the evidence of PW22 and Ex.P8 – Accident Register that the deceased Sheela was brought to the hospital for treatment by her husband (A1), mother (PW1) and brother (PW3). That being so, a concoction came to be made in the form of the statement of the deceased in Ex.P7 and its annexure, as if no effort was made by the accused person to save her after she attempted suicide by self- immolation. PWs.1 and 3 also admitted that when they went to the residence of the accused, after hearing the news of the occurrence, they saw the deceased with extensive burns in one room and the first accused with burns in another room. The prosecution witnesses have also admitted that the first accused also accompanied the deceased Sheela to the hospital, where, after the admission of the deceased, the first accused was admitted as an inpatient for treatment. He had sustained burns in right thigh, right shoulder, right upper arm and his abdomen. His bladder was affected and he also struggled to pass urine. PW22 holds testimony for the same. All the above said facts will show that when the deceased attempted suicide by self-immolation, the first accused (appellant herein) tried to save her and in such an attempt he also got injured and received burns with which he was found.

28. If these aspects are taken into consideration, the only plausible conclusion that can be arrived at is that the prosecution miserably failed to prove that the first accused committed acts of cruelty as contemplated under Section 498-A IPC. In addition, even if the two conditions stipulated under Section 113-A of the Evidence Act are proved to exist, it is not automatic that a presumption of abetment shall be drawn. On the other hand, the Court enjoins a duty to find out whether such a presumption can be drawn or not after taking into consideration of all the facts and surrounding circumstances of the case. The facts and circumstances of the case discussed above will make it clear that the presumption contemplated under Section 113- A shall not be validly drawn. As there is no direct evidence of abetment of suicide and the presumption under Section 113-A of the Evidence Act will also be ruled out, the first accused / appellant is entitled to be held not guilty of either the offence under Section 498-A IPC or the offence of abetment of suicide punishable under Section 306 IPC. The learned trial Judge on a misinterpretation of the provision of law and improper appreciation of evidence, rendered an erroneous finding that the prosecution proved the charges against the first accused for offences under Sections 498-A and 306 IPC beyond reasonable doubt and convicted him. The judgment of the trial Court, holding the first accused (appellant herein) guilty of the said offences and convicting him for the said offences shall without hesitation be termed as defective, infirm and discrepant and the same is liable to be set aside by this Court.

29. In the result, this criminal appeal is allowed. The judgment of the trial court dated 10.08.2006 made in S.C.No.235 of 2003 in respect of conviction and sentence against the appellant (A1) is set aside. The appellant is acquitted of the charges with which he stood charged and he is set at liberty. The bail bond, if any, executed by the appellant shall stand cancelled. The fine amount, if any, paid shall be refunded to the appellant.

To

1.The Assistant Sessions cum
Chief Judicial Magistrate,
Nagercoil.

2.The Inspector of Police
Nesamani Nagar Police Station
Kanyakumari District.

3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai..

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