Madras High Court Azhagu @ Azhagar-vs-State By: on 26 November, 2009
DATED : 26.11.2009
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH
CRIMINAL APPEAL No.543 of 2009
Azhagu @ Azhagar ..Appellant
Inspector of Police,
Kadampuliyur Police Station,
(Crime No.357/2005) ..Respondent
This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Sessions Judge (Mahila Court) Cuddalore made in S.C.No.8 of 2007 dated 18.5.2009
For Appellant : Mr.Philip Ravindran Jesudoss
For Respondent : Mr.Babu Muthu Meeran, Addl.P.P.
J U D G M E N T
(The judgment of the Court was made by M.CHOCKALINGAM, J.)
This appeal challenges the judgment of the Sessions Division, Mahila Court, Cuddalore, made in S.C.No.8/2007 whereby the sole accused/appellant stood charged under sections 302 and 498(A) of I.P.C and on trial, found guilty of both the charges and awarded life imprisonment along with fine of Rs.3000/-, in default, to undergo three months rigorous imprisonment for the first charge and three years rigorous imprisonment along with fine of Rs.2,000/-, in default, to undergo three months rigorous imprisionment for the second charge.
2. The short facts necessary for the disposal of this appeal can be stated as follows:
(a) The deceased Savithri, pursuant to the love affair, married the accused/appellant on 10.9.2004. P.W.1 is the sister of the deceased. P.Ws.2 and 3 are the parents of the deceased. At the time of marriage, gold jewels were given to the accused and there was a demand for two wheeler but the same was not given. After the marriage, both lived together in the house of the accused. The accused demanded for two wheeler and beat the deceased and drove her to her parent’s house. Thereafter, she was sent to the accused house. She became pregnant. When P.Ws.2 and 3 went to the accused house, the accused demanded for two wheeler. After a week, the accused beat the deceased and drove her out of the house. The deceased went to her parents house and was staying there. The deceased informed that she was suffering from pain but the accused did not take her to the hospital but demanded for the vehicle,TVS 50. The accused came to P.W.2’s house and thereafter, he went to his sister’s house. (b) On the date of occurrence, that was, on 21.7.2005 at 11.00 p.m., when P.W.1, her brother and sister were sleeping inside the house, the accused came over there and dragged the deceased to backside of the house. Within a short while, the deceased raised distress cry. P.W.1 and others went to the backside of the house and saw the deceased with burn injures. P.W.1 found the accused standing by the side. P.Ws. 2 and 3 also came over there . They came to know that it was the act of the accused. The deceased was immediately taken to Panruti Government Hospital. Thereafter, she was taken to the Cuddalore Government Hospital at 11.50 p.m. She was initially given treatment by P.W.8, doctor. The Accident register copy was marked as Ex.P.3. (c) An intimation was given to the Judicial Magistrate No.II, Cuddalore. He came over there and after getting certified that she was in a fit state of mind, P.W.14 Judicial Magistrate recorded the statement of the deceased at 2.30 a.m. The dying declaration proceedings was marked as Ex.P.13. Thereafter, she was taken to the Government Hospital, Pondicherry. (d) An intimation was given to the Sub-Inspector of Police, P.W.13. He went to Pondicherry Government Hospital and recorded the statement of the deceased, after getting certification from the doctor, P.W.12 that she was in a fit state of mind. The statement of the deceased recorded by P.W.13 was marked as Ex.P.10. On the strength of which, he registered a case in Crime No.357/2005 under sections 498(A) and 307 I.P.C. and the F.I.R, Ex.P11 was despatch to Court. A copy of the F.I.R., Ex.P11 was sent to the R.D.O. for conduct of enquiry. The R.D.O. recorded the statement of the witnesses. (e) P.W.15 Inspector of Police, took up investigation. He went over to the place of occurrence and made an observation of the place of occurrence and prepared the observation mahazar, Ex.P.14 and drew a rough sketch Ex.P.15. Thereafter, in the presence of witnesses and panchayatdars, he conducted inquest on the dead body and prepared Ex.P.10, inquest report. Then the dead body was subjected to post mortem. (f) P.W.10, doctor conducted autopsy on the dead body of the deceased and gave opinion that the deceased died out of burn injuries sustained. The case was altered to section 302 IPC and the amended F.I.R. was also despatched to Court. The investigating officer arrested the accused on 29.7.2005 and the accused was sent for judicial remand. On completion of the investigation, the investigating officer filed a final report. (g) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 16 witnesses and relied on 18 exhibits and 3 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under section 313 Cr.P.C. procedurally as to the incriminating circumstances found in the prosecution witnesses and they denied them as false. No defence witness was examined. On hearing the arguments advanced on either side, the trial Court found the accused guilty and awarded the punishments as referred to above. Aggrieved by the said judgment, the appellant has brought forth this appeal.
3. Advancing the arguments on behalf of the appellants, the learned counsel Mr.Philip Ravindran Jesudoss would submit that in the instant case, the prosecution much relied on the evidence of P.W.1 as an eye witness, but from her evidence, it is quite clear that P.W.1 could not have seen the occurrence at all. The learned counsel pointing to the evidence of P.W.1 would submit that she has admitted that, at the time of occurrence, she was sleeping. At the time of R.D.O. enquiry also, she has not whispered that she witnessed the occurrence. Thus, it would go to show that she could not have witnessed the occurrence at all. But the trial Court has accepted her evidence.
4. So far as the dying declaration recorded by the Judicial Magistrate is concerned, it should have rejected. According to the prosecution, the deceased was first taken to Panruti Government Hospital and the accident register copy was given by P.W.8, doctor at 11.50 p.m. Ex.P3 is the accident register copy where she has categorically stated that she attempted to commit suicide. This would clearly indicate that the story of the prosecution that it was act of the accused is falsified.
5. Added further learned counsel, the deceased was taken to the Cuddalore Government Hospital. P.W.14 Judicial Magistrate recorded the dying declaration. According to him, she was conscious and oriented enough to give declaration but the declaration should not have been given at that time at all, for the simple reason that according to P.W.9, she was given seductive injection at 2.00 a.m. If to be so, she could not have been in an position to give dying declaration at 2.40 a.m. on 21.7.2005. She could be unconscious and she could not have spoken at all. Such a declaration could not have been recorded by the Judicial Magistrate. She could not have been in a fit state of mind as certified by the doctor. Therefore, the dying declaration should not have be given any effect to.
6. In the dying declaration allegedly recorded by the Judicial Magistrate which was marked as Ex.P.13 and in the statement alleged to have been given by her and recorded by Sub Inspector of Police in Ex.P11, the deceased had not signed in the documents but she has made her thump impression. Thus, it would go to show that she was not conscious. In view of the above, the dying declaration cannot be given any evidentiary value and it cannot but be false.
7. Added further learned counsel, in the instant case, the motive, according to the prosecution was, since the demand of dowry was not met, the accused poured kerosene on her and set fire on her. P.Ws. 1 and 2 would categorically state that the accused did not make any dowry demand. Therefore, that charge would automatically will fall to ground. Hence, the trial Court has erroneously found him guilty. The prosecution case, is not only lacking in evidence, but also bereft of evidence. Hence, the judgment of the trial Court has got to be set aside.
8. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
9. It is not in controversy that one Savithri wife of the accused/appellant, following the incident that had taken place on 21.7.2005 at 11.00 p.m. was taken to Panruti Government Hospital where she was given initial treatment by P.W.8. Thereafter, she was taken to Cuddalore Hospital on the very day at about 2.00 a.m. Then, she was taken to Pondichery Government Hospital, where she succumbed to injuries. Originally, a case was registered under section 307 IPC by P.W.13 Sub Inspector of Police on the strength of the statement given by the deceased which was marked as Ex.P11. After her death, the case was altered to section 302 IPC. P.W.9, R.D.O conducted inquest on the dead body and on request P.W.7 doctor conducted autopsy on the dead body and gave certificate under Ex.P.7 that she died out of burn injuries. The cause of death as putforth by the prosecution was never disputed by the accused before the trial Court or before this Court. Hence, the trial Court was perfectly correct in recording so.
10. In order to substantiate that it was the accused who poured kerosene on the deceased and set her fire, the prosecution relied on the direct evidence of P.W.1 and also other circumstances namely dying declaration recorded by the Judicial Magistrate, P.W.14 marked Ex.P.13 and also statement given by the deceased to P.W.13, Sub Inspector marked as Ex.P.11. In the instant case, as rightly pointed out by the learned counsel for the appellant, the evidence of P.W.1 was to be rejected for two reasons. P.W.1 has categorically stated at the time of cross examination that she was sleeping at the time of occurrence. Apart from that, at the time, when he was enquired by the R.D.O., she has not whispered that she had seen the occurrence. Hence, both would go to show that P.W.1 could not have seen the occurrence at all.
11. Insofar as the other part of the evidence placed by the prosecution before the trial Court are concerned, it would be quite clear that the prosecution has brought home the guilt of the accused. Admittedly, from the place of occurrence, P.Ws. 2 and 3 have taken her to Panruti Hospital where P.W.8, doctor was on duty. On 11.50 p.m., she was given initial treatment and Ex.P3 is the Accident Register copy in that regard. A perusal of Ex.P3 would indicate that she attempted to commit suicide. It is pertinent to point out that this statement was not given by the deceased but by P.W.2 who was not an eye witness. The statement given by P.W.2 as found in Ex.P.3 need not be given any importance in the considered opinion of the Court.
12. Further, the deceased was taken to Cuddalore Hospital and was given treatment. On requisition, P.W.14-Judicial Magistrate went to the Hospital and after being certified that she was in a fit state of mind, he recorded Ex.P13 dying declaration at 2.40 p.m. The doctor has categorically spoken to the fact that at the time when the Magistrate came over there and from the commencement of the dying declaration till the end of the said proceedings, the deceased was conscious and was in a fit state of mind. A perusal of Ex.P13 would clearly indicate that at the time there was demand of two wheeler, for which, the accused raised quarrel and he took her to the back side of the house and poured kerosene on her and set her ablaze. A perusal of Ex.P.13 would clearly indicate that it was the accused who poured kerosene and set her ablaze since the demand of two wheeler was not met.
13. Now, the contention putforth by the learned counsel for the appellant that just prior to the alleged dying declaration, seductive injection was given and hence, she was not conscious cannot be accepted for the simple reason that the doctor who was present. The evidence of P.W.9-doctor, from the time of examination by the prosecution till he was cross examined in full, his evidence remains unshaky. Apart from that, the evidence of P.W.14, Judicial Magistrate was clear to the effect that the deceased was conscious at the time of recording the dying declaration. After being certified that the deceased was in a fit state of mind, she had recorded the same. Under such circumstances, the Court is unable to agree with the learned counsel for the appellant. Thus, the said dying declaration,Ex.P.13 which was recorded by the Judicial Magistrate in the presence of the said medical person inspires the confidence of the Court. This Court is of the considered opinion that this single piece of evidence is suffice to sustain the conviction.
14. Further, the deceased has given the statement to P.W.13 Sub Inspector which was marked as Ex.P.10. On the strength of Ex.P.10, a case came to be registered under section 307 IPC by the respondent police and the statement also was in the nature of dying declaration. A reading of both the documents together would clearly indicate that the accused poured kerosene on her and set fire and caused her death since the demand of two wheeler was not met.
15. Insofar as the other contention putforth by the learned counsel for the appellant that there was no dowry demand and the finding of the trial Court has to be set aside is concerned, the Court is unable to agree with the said contention. It is true that P.Ws. 1 and 2 have categorically stated that he has not made any dowry demand at the time of marriage. From the dying declaration, it could be seen that two wheeler was actually demanded by the accused at the time of marriage and it was not given and he was going on demanding for the same and this fact has also found place in the dying declaration. Under such circumstances, when a demand was made, it cannot but be a dowry demand and it is seen that when the demand was not fulfilled, the accused has committed a crime. The trial Court was correct in finding him guilty under section 498A IPC and the contention putforth by the learned counsel for the appellant do not carry any merit and it is liable to be rejected and accordingly, rejected. The learned trial Judge has marshalled the evidence proper and narrated all the reasons for finding the accused guilty, which in the opinion of the Court cannot be interfered with either factually or legally.
16. In the result, the appeal fails and the same is dismissed confirming the judgment of conviction and sentence passed by the trial Court.
(M.C.J.) (V.P.K.J.) 26.11.2009
Index : Yes/No
Internet : Yes/No
1. The Sessions Judge (Mahila Court)
2. The Inspector of Police,
Kadampuliyur Police Station,
3. The Public Prosecutor,
High Court, Chennai.
V. PERIYA KARUPPIAH.,J.
CRL. APPEAL No.543 of 2009