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Muthu Kutty And Anr vs State By Inspector Of Police, … on 19 November, 2004

Supreme Court of India Muthu Kutty And Anr vs State By Inspector Of Police, … on 19 November, 2004Bench: Arijit Pasayat, S.H. Kapadia


Appeal (crl.) 1301 of 2004





DATE OF JUDGMENT: 19/11/2004





2004 Supp(6) SCR 222

The Judgment of the Court was delivered by ARIJIT PASAYAT, J. : Leave granted.

Appellants (described as A-l and A-2) who were convicted for offence punishable under Sections 498A and 304B of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentenced to undergo two years’ rigorous imprisonment and a fine of Rs. 1,000 with default stipulation in respect of the former offence and 7 years’ RI for the latter offence by the Trial Court have filed this appeal questioning the correctness of judgment rendered by a learned Single Judge of the Madras High Court who confirmed the Trial Court’s judgment.

Factual position in a nutshell is as follow :

Smt. Selva Backlam (PW-1) is the mother and Pon Pandian (PW2-2) is the brother of the Kodimalar (hereinafter referred to as the ‘deceased’) who was given in marriage to Bathel Raj (DW-1), son of both the accused. From this wedlock, a female child was born. Due to financial crisis, Bethal Raj went to Bombay seeking for better job, Deceased used to complain to PW-1 that the accused were demanding and asking her to bring money. On one occasion, due to quarrel over the dowry demand, deceased came to the house of PW-1. On 28.5.1995, the date of occurrence, at about 1.30 p.m. on hearing cry from the house of the accused “Save me, Save me” Smt. Perkmen (PW-3) from the neighbouring house went to the house of the accused and found deceased lying on the floor with burn injuries, and smoke was also coming out. On coming to know of the occurrence, Salva Backiam (PW-1), Sundar (PW-4), Ram Lakshmi (PW-5) and Gomathi (PW-6) came and saw the deceased who told them that A-2 poured kerosene on her and A-l lit the match stick. The dress of deceased was found burnt. The part of the saree was cut and removed. Perkman (PW-3) and Smt. Gomathi (PW-6) changed the dress of the deceased and took her to the Government Hospital, Tenkasi by a taxi brought by Sundar (PW-4). On the way, she informed PW-3 that her mother-in-law and father-in-law had jointly set fire on her. Pon Pandia (PW-2) on hearing the occurrence through PW-4 went to the Government Hospital, Tenkasi and enquired about her sister, who told PW-2 about the act of the accused.

Adbulkhder (PW-7), Village Administrative Officer, Avudayanoor informed the occurrence at about 2.00 p.m. to his higher officials through Thalaiyari. At about 3.20 p.m. deceased was examined by Dr. Ramaswamy (PW-9), Assistant Medical Officer and he recorded the statement of deceased that A-l and A-2 poured kerosene on her and set fire. He found the burns to be about 90%. He gave an intimation under Ex.P8 to Thenkasi Police Station. Sankaralingam (PW-14) head Constable of Pavurchathiram Police Station on receipt of the wireless message at about 4.00 p.m. from the Thenkasi Police Station went to the Thenkasi Police Station at about 4.45 p.m., received Ex.P8 went to the Government Hospital, Thenkasi at 5.15 p.m. and recorded the complaint of deceased under Ex.Pl in the presence of Doctor (PW-9) wherein the deceased has affixed her thumb impression. Ex.Pl complaint was attested by PW-4 and the same was also certified by PW-9 Doctor. PW-14 returned to Pavurchathiram Police Station at about 7.00 p.m. and registered a case in Crime No. 228/1992 under Sections 498A and 307 IPC. Sundaramurthy (PW-13), Grade I Constable attached to Pavurchathiram Police Station received the FIR and handed over the same to the Judicial Magistrate, Thenkasi. A copy of the FIR was also sent to the higher officials. On 28.5.1992 at about 8.00 p.m. on receipt of Ex.P4 memo from the Government Hospital, Thenkasi, Pitchai (PW-8), Judicial Magistrate, Thenkasi went to the Hospital, enquired as to the consciousness of the patient Kodimalar and recorded the dying declaration in the presence of Doctor (PW-9), who certified that she was conscious and able to give declaration. Ex.P5 was the dying declaration recorded by the Judicial Magistrate.

On receipt of the copy of the FIR, Vilavaranimurugan (PW-15) Inspector of Police, Thenkasi took up the investigation, went to the Government Hospital, examined PWs 4 and 9 and recorded their statements. He went to Pavurchathiram, examined PW-14 and recorded his statement. On 29.5.1992 at 6.30 a.m. he went to the site of occurrence, made an inspection and prepared Ex.P2 observation mahazar in the presence of PW-7 and one Sabbukutty and also prepared Ex.pl6 rough sketch. He recovered M.O. 1 black can with lid, (M.Os. 2 and 3) and M.Os. 3 to 5 gowns and M.O. 6 match box under Ex.P3 mahazar which attested by PW-7 and one Subbukutty. At about 8.30 a.m. he arrested the accused in Salipudur Bus stop and brought them to police station. Dr. Elangovan Chellappa (PW-11) attached to the Government Hospital, Thenkasi sent an intimation at 9.00 a.m. that deceased who was under treatment succumbed to the burn injuries on the morning of 29.5.1992. On receipt of the intimation from the Government Hospital, Thenkasi P W-15 Investigating Officer altered the case to Sections 498 A and 302 IPC. Ex. P14 altered FIR was sent to Ramamurthy (PW-16), Revenue Divisional Officer through Rajendran (PW-12), a Constable. PW-16 on receipt of the express altered report, went to the Government Hospital and saw the dead body of Kodimalar, the deceased. He conducted the inquest, prepared his report under Ex.P 17 and sent to the Police Officials for necessary action. Dr. (Smt.) Vasantha Diana (PW-10) on receipt of the requisition under Ex.P9 given by PW-16 conducted the postmortem on the dead body of Kodimalar on 29.5.1992 at 4.15 p.m. She issued Ex.P10 postmortem certificate. No poisonous substance was detected in the analysis, when the internal organs preserved were subjected to chemical analysis. The chemical analyst’s report is marked as Ex.P11. Doctor (PW-10) opined that the deceased appeared to have died due to extensive burns 4.10 hours prior to the postmortem.

Karuppiah (PW-17), Deputy Superintendent of Police, Thenkasi took up further investigation. He examined the witnesses. The successor in officer of PW-17 namely Durai Raj, Deputy Superintendent of Police completed the investigation and laid the charge sheet against the accused under Sections 498A, 304B read with 302 IPC and Section 4 of Dowry Prohibition Act, 1961 (in short the ‘Dowry Act’).

In order to substantiate its accusations prosecution examined 17 witnesses. On completion of evidence tendered by the prosecution, the accused persons were questioned under Section 313 of the Code of Criminal Procedure, 1973 (in short the ‘Code’). The accused persons pleaded innocence and false implication.

The husband of the deceased was examined as DW-1. On consideration of the materials on record the trial Court found the accused persons guilty and sentenced them as afore-stated. It did not accept the defence plea that because of depression, deceased committed suicide.

In the appeal before the High Court primarily two questions were raised. Firstly, there was no evidence of any dowry demand and secondly, the so- called dying declaration is not believable. The State reiterated its stand taken before the Trial Court that evidence is clear and cogent. The High Court found that the appeal was without any merit, and accordingly dismissed it.

In support of the appeal, learned counsel for the appellants submitted that there was no cogent evidence to justify conclusion regarding the demand of dowry. Further considering the extent of burns alleged to have been suffered by the deceased, it is highly improbable that she was in fit condition to give any statement. The doctor has not certified that she was conscious, and/or, in a fit condition to make any declaration. Her statements have been treated as the FIR and dying declaration. Though the presence of a small girl who is supposed to witnessed the occurrence was stated by some of the prosecution witnesses, for reasons best known to the prosecution, the said child was not produced as a witness.

The acceptability of the defence version has been lightly brushed aside by the Courts below. It was the specific stand of the accused persons that because of depression the deceased had committed suicide and the prosecution case as claimed is totally improbable.

In response, learned counsel for the State submitted that the Courts below have analysed the evidence in great detail, found the same to be clear and cogent. The dying declaration was recorded by a Judicial Magistrate (PW-8) in the presence of the doctor. There is no reason as to why these witnesses would falsely implicate the accused persons. In fact the Judicial Magistrate has categorically stated that the deceased herself in clear terms pointed out accusing fingers at the accused persons and following all requisite formalities the dying declaration was recorded in the presence of the doctor. It is not correct that the doctor has not certified about the deceased being conscious and in a fit condition to make the declaration.

At this Juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 (in short ‘Evidence Act’) which deals with cases in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz. if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which” could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. These aspects are elaborated in Section 60. The eight clauses of Section 32 are exceptions to the general rule against hearsay just stated. Clause (1) of Section 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any Statute. It essentially means statements made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are : firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the

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