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Dharmalingam-vs-State By on 1 April, 2008

Madras High Court Dharmalingam-vs-State By on 1 April, 2008

DATED: 1.4.2008

CORAM

THE HONOURABLE MR.JUSTICE P.D.DINAKARAN

AND

THE HONOURABLE MR.JUSTICE R.REGUPATHI

Criminal Appeal No.973 of 2006

1. Dharmalingam

2. Lakshmi .. Appellants

Vs.

State by

Inspector of Police

All Women Police Station

Bhavani, Erode District. .. Respondent

—–

Appeal against the judgment dated 31.10.2006 made in S.C.No.68 of 2005 on the file of learned Principal Sessions Judge, Erode.

—–

For Appellants : Mr.N.Manokaran

For Respondent : Mr.N.R.Elango

Addl. Public Prosecutor

—–

J U D G M E N T

(Delivered by P.D.DINAKARAN,J.)

Appellants, two in number, who are husband/A1 and mother-in-law/A3 of the deceased respectively, stand convicted in S.C.No.68 of 2005 for the offence under Sections 498-A and 302 read with 34 I.P.C, and under Section 4 of the Dowry Prohibition Act, for which they were sentenced to undergo rigorous imprisonment for three years with a fine of Rs.1,000/- each, in default, six months rigorous imprisonment; life imprisonment with a fine of Rs.2,000/- each, in default six months rigorous imprisonment; and rigorous imprisonment for two years with a fine of Rs.1,000/- each, in default, six months rigorous imprisonment. Therefore, they are before this court in this appeal.

2. For the sake of convenience, the appellants are referred to as A1 and A3 respectively.

3. According to the prosecution the occurrence took place at about 10.00 p.m. on 29.8.2004. Their case is, A1 caught hold of the deceased; A3 poured kerosene on the deceased and then A2 threw a lighted matchstick on the deceased resulting in her death on 4.9.2004. To prove their case, the prosecution examined P.Ws.1 to 16 besides marking Exs.P1 to P15 and M.Os.1 to 6. The defence had let in a documentary evidence Ex.D1. (a) P.W.1 is the father of the deceased Kumari alias Jayakumari. P.W.1’s evidence is that his daughter is the wife of A1. On the next day of occurrence, at about 11 am, he received information that the deceased was admitted in the Government Hospital at Erode. Immediately, he proceeded to the Government Hospital at Erode and enquired the deceased about the occurrence. The deceased informed that A1 to A3 poured kerosene on her and set fire. She succumbed to the injuries on 4.9.2004. (b) P.W.2 is the mother of the deceased. She deposed that sixteen years before, the deceased was married to the accused and got a boy, P.W.6, studying at 8th standard at the time of occurrence. The deceased was harassed for dowry. Three months prior to the occurrence, Panchayat was conducted and thereafter, she was sent to her in-laws house, along with P.W.6, who was studying in her house. At about 10 pm on 29.8.2004, P.W.6 came to her house stating that all the accused were harassing the deceased demanding dowry and that they would set her on fire by pouring kerosene or throw her in the river, if she reveals about the harassment to anybody. On the next day, on receiving the telephonic information, she went to the Hospital, where, the deceased informed her that the accused were harassing her demanding dowry and while A1 caught hold of her hands and A3 poured kerosene, A2 threw the lighted matchstick on her. (c) P.W.3 is the brother of the deceased. He stated about the cruelty the deceased was subjected to at the hands of the accused for dowry and about the statement given by the deceased in the hospital that A2 and A3 caught hold of her hands and A1 poured kerosene and set fire on her. (d) P.W.4 is the younger brother of the deceased. He deposed that on receipt of telephonic information about the admission of the deceased in the hospital with burn injuries, he went to the hospital, wherein he was informed that A1 caught hold of her hands, A3 poured kerosene and A2 set fire on her, demanding dowry. He has also attested his signature to the observation Mahazar, Ex.P1. (e) P.W.5, maternal uncle of the deceased, also deposed about the statement given by the deceased that A1 caught hold of her hands, A3 poured kerosene and A2 set fire on her, demanding dowry. He attested his signature to the Mahazar for seizure of M.Os.1 to 4, Ex.P2 and Rough Sketch, Ex.P13. (f) P.W.6 is the son of the deceased and A1. He deposed that all the accused harassed the deceased several times demanding dowry. He was studying at his maternal grand parents house. Three months prior to the occurrence, when the deceased was staying at her parents place, a panchayat was conducted, wherein it was decided to leave the deceased in the house of the accused, along with P.W.6, so that there would not be any quarrel between the deceased and A1. Even thereafter, the accused were beating the deceased demanding dowry. On the date of occurrence, the accused were harassing the deceased to bring jewels and cash, and threatened her stating that they would set fire on him and the deceased by pouring kerosene or would throw them in the river. When A2 and A3 left the house, P.W.6, fearing danger to his life, went to the house of P.Ws.1 and 2. Next day, he was informed by A1 over telephone that the deceased sustained burn injuries and therefore, admitted in the hospital. He went to the hospital at Erode. The deceased told him that A1 caught hold of her hands, A3 poured kerosene and A2 set fire on her, demanding dowry. (g) P.W.7 is the neighbour of the accused. She deposed that on hearing the alarm of A3, she went to the place of occurrence and saw the deceased with burn injuries.

(h) P.W.8, maternal uncle of the deceased, deposed about the harassment borne by the deceased at the hands of the accused for dowry.

(i) P.W.14, Head Constable of Bhavani Police Station, on the information received from Government Hospital at Erode, went to the hospital and enquired the deceased and recorded her statement, Ex.P9 and after reading over to the deceased and affirming it to be right, got her left thumb impression in it. He handed over the said statement to Sub Inspector for further action. Thereafter, he handed over the said statement to the Inspector of Bhavani All Women Police Station, P.W.16 on 31.8.2004. (j) Ex.P3 is the requisition received from the Hospital. Accordingly, P.W.9 proceeded to the hospital where she found the deceased as an inpatient. P.W.10, duty doctor was also present there. By examining the deceased, P.W.9 got herself satisfied that the deceased was in a fit and conscious state of mind to give a statement. She also personally questioned the victim about her family details. Then the deceased disclosed to P.W.9 that two days prior to the occurrence, A1 beat her demanding Rs.20,000/- and jewels and on the date of of occurrence, at about 10 pm, since P.W.6 was not available, she was tortured for the same and A1 tied her hands at the backside, A3 poured kerosene and A2 set fire on her and further, it was stated in the hospital at Bhavani that the deceased was mentally unsound and she had self-immolated and there was dowry harassment from the time of her marriage. After recording the statement, it was read over to the deceased and took her left thumb impression in it. Ex.P5 is the said dying declaration of the deceased. The certificates given by P.W.10, about the fit and conscious state of mind of the deceased, both prior to giving the Judicial dying declaration during and after recording the judicial declaration are Exs.P4 and P6. (k) P.W.16, Investigating Officer, on receiving the statement of the deceased, Ex.P9 and intimation from the Government Hospital, Erode, Ex.P11, registered a case in Crime No.4 of 2004 under Section 498(A) and 506(ii), IPC and Section 4 of the Dowry Prohibition Act. Ex.P12 is the printed First Information Report. Thereafter, he commenced the investigation by reaching the crime scene. He prepared Ex.P1, Observation Mahazar and Ex.P13, rough sketch. Under mahazar, Ex.P2, he seized M.Os.1 to 4. On the same day, he recorded the statements of the deceased, P.Ws.1 to 5 and 7. He arrested the accused at 5.30 pm on 1.9.2004. He caused letter to the Court for obtaining the dying declaration of the deceased. On 5.9.2004, at about 6.30 am, he received information about the death of the deceased at 9.50 pm on 4.9.2004 and therefore, altered the sections of offence into one under Sections 302, 506(ii), 498(A), IPC and Section 4 of the Dowry Prohibition Act. Ex.P14 is the altered Express First Information Report. He conducted inquest over the dead body in the presence of panchayatdars and witnesses. Ex.P15 is the inquest report. Then he sent a requisition, Ex.P7 to the court to conduct post-mortem on the dead body. (l) P.W.15 is the police Head constable, who carried the requisition to the hospital for post-mortem. After post-mortem she handed over the dead body to the relatives. P.W.11 is the duty Doctor in the Government Hospital at Erode, before whom the statement was recorded by the Head Constable, P.W.14. P.W.12 is the Doctor, who did post-mortem on the dead body. Ex.P8 is the post-mortem report. The Doctor opined that the deceased appears to have died of septicaemia, shock due to external burns. (m) After completing the investigation and after complying with all the legal formalities, P.W.16 filed the final report in the Court against the accused on 5.10.2004 under Section 498A, 302 read with 34 IPC and Section 4 of the Dowry Prohibition Act. The case was committed to Court of Sessions and charges were framed and since the accused denied their complicity in the offence, the case was taken up for trial.

4. When the accused were questioned under Section 313 of the Code of Criminal Procedure, on the basis of the incriminating materials made available against them, they denied each and every circumstance put up against them as false and contrary to facts. As already noted, documentary evidence, Ex.D1 was brought before court at their instance. The learned trial judge, on perusal of the materials, oral and documentary and after hearing both sides, convicted and sentenced the appellants as aforementioned. Hence, the present appeal.

5. The learned counsel for the appellants, by taking us through Exs.P5 and P9, recorded by P.W.9, Judicial Magistrate and P.W.14, Head Constable respectively, would contend that there are contradictions in both the dying declaration as to the overt act of A3 and therefore, both the dying declarations should be disbelieved.

6. Per contra, learned Additional Public Prosecutor submits that the statement of the deceased that she was done to death by pouring kerosene and setting fire by the accused, as per her dying declarations Exs.P5 and P9 stands corroborated by the evidence of P.Ws.1 to 6, and the same would clearly establish the guilt of the accused and therefore, the contradiction as to the overt act of A3 would not change the nature of the offence committed by the accused.

7. In the light of the submissions of the learned counsel on either side, we went through the entire records.

8.1. As the strenuous contention of the learned counsel for the appellants is about the contradiction in the dying declaration, it would be apposite to refer the ruling with regard to the acceptability of the dying declaration. 8.2. In Jai Karan v. State of Delhi (NCT) [1999 SCC (Crl.) 1385], the Supreme Court has laid down the following law:

"A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted to the premise that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premise which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross-examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration, it must be shown that the person stating it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on a strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence–neither extra strong nor weak–and can be acted upon without corroboration if it is found to be otherwise true and reliable." 8.3. In P.V. Padhakrishna v. State of Karnataka [2003 SCC (Crl.) 1679], the Supreme Court has held as under:

"This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on the deathbed is so solemn arid serene when he is dying that the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice, because the victim being generally the only eyewitness in a serious crime, the exclusion of the statement would leave the court without a scrap of evidence. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence…" 8.4. In Thurukanni Pompiah and Anr. v. State of Mysore, AIR 1965 SC 939, the Supreme Court has held that a truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. But the Court must be satisfied that the declaration is truthful. The reliability of the declaration should be subjected to a close scrutiny, considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross examination. In the event the Court finds that the declaration is not wholly reliable and the material and integral portion of the deceased’s version of the entire occurrence is untrue, it would be only unsafe to convict the accused on the basis of such declaration alone without there being any corroboration.

9. A reference to the above well settled principles, makes it clear that a dying declaration is admissible in evidence as any other evidence in terms of Section 32 of the Indian Evidence Act. Though a dying declaration is entitled to great weight, it must be kept in mind that the accused has no power of cross examination and such a power is essential for eliciting the truth. The Court must see reasons that the dying declaration of such a nature has inspired full confidence as to its correctness. The Court must satisfy itself that the dying declaration was not as a result of either tutoring or prompting or a product of imagination and the deceased was in a fit state of mind to give such a declaration. The credibility of a dying declaration does not depend upon the number of dying declarations nor on the length of statements made by the deceased. The main test of reliability of a dying declaration is mental and physical fitness and capability of the person to make the statement at that point of time.

10. Before proceeding further on the point of contradiction in the dying declarations, it would be apt to examine the motive for the commission of the offence. The substratum of the evidence of P.Ws.1 to 6 and 8 is that the deceased was harassed by the accused demanding dowry. The evidence on record clearly establishes the fact that the accused had been making demands. Apart from the fact that they used to press the deceased to get money from her parents, there is also clear evidence on record to establish the fact that she was being ill-treated by them. The evidence in that regard is consistent and has been deposed to by a large number of witnesses, viz. family members and relatives. 11.1. Once the dowry demand by the accused leading to the burning being the underlying motive for commission of offence has been proved, the next point for consideration is the contradiction in the dying declarations given by the deceased and in this regard, a reference to the relevant portion of the dying declarations, viz. Exs.P9 and P5 would be appropriate. 11.2. In Ex.P9, recorded by P.W.14 on 30.8.2004 at about 11.00 hours, it is stated as under:

"… when she refused to go to her parents place, A1 went out and brought kerosene and poured on her stating that he would not live with her and leave her alive; A2 brought the match box and lighted her; A3 put off the fire stating why the deceased had not gone to her house; immediately, she was taken to the hospital …" 11.3. In Ex.P5, recorded by P.W.9 on 1.9.2004 at about 2.55 pm, it is stated as under:

"… A1 tied her hands at the back side; A2 poured kerosene; A3 set her on fire and left to his daughter’s house; when she was burning, she raised alarm for help and nobody came for her rescue; A1 stated in the Hospital at Bhavani that the deceased set fire on her due to her mental unsoundness …"

12. The main contradiction, as contended by the learned counsel for the appellants, is that in the first dying declaration, Ex.P9, recorded by P.W.14, the deceased had stated that A1 poured kerosene on her and A2 threw a lighted match stick on her and A3 put off the fire. But, as per Ex.P5, judicial dying declaration recorded by P.W.9, Judicial Magistrate, A1 tied the hands of the deceased at the back side, A3 poured kerosene on her and A2 set her on fire.

13. Even though a dying declaration made by the deceased at the verge of her death has a special sanctity and enjoys almost a sacrosanct status as a piece of evidence, as, at that solemn moment, she is most unlikely to make any untrue statement and the shadow of impending death is, by itself, the guarantee of the truth of the statement made by her regarding the causes or circumstances leading to her death, the contradiction in the said dying declarations, viz. in Ex.P5, it is stated that A3 poured kerosene and in Ex.P9, A3 tried to put off the fire, coupled with the evidence of P.W.7, who is the neighbour of the deceased, who had stated that on hearing the alarm of A3 that "vd; jiyapy; fy;iy nghl;Ltpl;lhna" which would mean that the deceased had thrown the blame on her and made her to suffer, she went to the place of occurrence and saw the deceased with burn injuries, would throw a doubt as to whether A3 had poured kerosene on the deceased or not. Further, according to P.Ws.2, 4, 5 and 6, the deceased had stated that A1 caught hold of her hands, A3 poured kerosene and A2 threw a lighted matchstick on her. But, the deceased had stated to P.W.1 that A1 to A3 poured kerosene and set her on fire. However, the deceased had stated to P.W.3 that A2 and A3 caught hold of her hands and A1 set her on fire. 14.1. In the light of our foregoing discussion, we hold that the case of the prosecution that A1, the first appellant is guilty of the offences punishable under Section 498-A IPC., Section 4 of the Dowry Prohibition Act and Section 302 IPC. is substantiated beyond reasonable doubt and the order of conviction and sentence passed in that regard by the trial court is confirmed. 14.2. Insofar as A3, the second appellant is concerned, we are of the considered view that the offence under Section 302 IPC. is not made out, however, offences under Sections 498-A IPC. and section 4 of the Dowry Prohibition Act are clearly made out. Accordingly, while acquitting the 2nd appellant/3rd accused of the offence under Section 302 IPC., considering the aspect that she is aged about 63 years, an old lady, the sentences of 3 year and 2 year R.I. respectively, as imposed by the trial court for the aforesaid offences and ordered to run concurrently stand modified into one year with fine of Rs.2,000/- (Rupees two thousand only) – Rs.1,000/- each for the offence under Section 498(A) IPC and Section 4 of the Dowry Prohibition Act, which amount shall be paid within eight weeks from the date of receipt of a copy of this order, failing which, she has to undergo rigorous imprisonment for three months.

15. In the result, Appeal stands dismissed as against A1/first appellant and it is allowed in part as regards the 2nd appellant/A3, to the extent indicated above. Since the second appellant is on bail and the sentence is modified by our Judgment, the trial court shall take steps to secure A-3 and commit her to Prison so as to undergo remaining period of sentence, if any. Index : Yes/No (P.D.D.J.) (R.R.J.)

Internet : Yes/No 1.4.2008.

kpl

To

The Principal Sessions Judge

Erode.

P.D.DINAKARAN, J,

AND

R.REGUPATHI, J.

kpl

Crl.A.No.973 of 2006

1.4.2008

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