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Syed Mustafa-vs-State, By Asst. Commissioner Of on 19 June, 2003

Madras High Court Syed Mustafa-vs-State, By Asst. Commissioner Of on 19 June, 2003
Bench: M Karpagavinayagam, S A Kumar

JUDGMENT

1. The gist of the accusation is that the appellant-Syed Mustafa caused the death of his wife Megarunnisa by pouring kerosene over her body and set fire to her on 2-10-1997 at about 1 p.m.

2. On this allegation, the accused was tried and ultimately convicted for the offence under Section 302 I.P.C. and sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000/-. Challenging the same, this appeal has been filed by the appellant/accused.

3. The facts in brief are as follows:-

(a) Syed Mustafa, the appellant herein married the deceased Megarunnisa 2-1/2 years prior to the date of occurrence. Out of their wedlock, two female children were born. The accused was doing vegetable business. The parents of the deceased gave dowry by means of jewels and cash. Not being satisfied, the accused demanded more amount from the parents of the deceased in order to start his own business. The parents of the deceased were able to give a small amount then and there. However, they were not able to give huge amount as demanded by the accused. Therefore, there was misunderstanding between them. Due to this, the accused frequently used to beat the deceased. When the accused decided to go to Coimbatore to start his own business, the parents of the deceased requested him not to go to Coimbatore and asked both the accused and the deceased to stay in the upstair portion of their house along with the children and do the business there itself. Accordingly, they stayed in the upstair portion of the house.

(b) On 2-10-1997 morning, the accused beat the deceased asking her to get Rs. 5,000/- from her parents. The deceased told him that her parents would not be able to give the huge amount to him. There was a wordy quarrel. During the wordy quarrel, P.W.1, the mother of the deceased came and intervened and pacified them.

(c) Again at 1 p.m., the quarrel between them started. The accused attempted to remove the table fan for selling the same. The deceased prevented the accused from removing the fan for sale. Having got infuriated over this, the accused took the plastic can found near the oven and poured kerosene over the body of the deceased and set fire to her by lighting the matchstick. The deceased caught fire and cried for help.

(d) On hearing the cry, P.W.1, the mother of the deceased, P.W.9, the maternal uncle of the deceased and P.W.2, the brother of the deceased, went to upstairs and saw the deceased in flames. The accused was simply standing and keeping quiet for some time. Then, he ran away from the house. P.W.9 and P.W.2 put out the fire by using the gunny bag soaked in water.

(e) Thereafter, the victim deceased was taken to hospital in an Auto. While they were proceeding towards the hospital, the deceased told them that the accused poured kerosene over her body and set fire. At about 2.10 p.m., the deceased was admitted in the Trichy Government Hospital.

(f) P.W.5 Doctor admitted her and gave initial treatment. The deceased told P.W.5 Doctor that her husband poured kerosene and set fire to her at about 1 p.m. P.W.5 issued Ex.P-1 accident register. Then, he sent intimation to the Police and requisition to the Judicial Magistrate to record the dying declaration of the deceased.

(g) P.W.16 Sub-Inspector of Police, on receipt of message, came to the hospital, recorded Ex.P-17 statement of the deceased and registered the same for the offences under Sections 307 and 498A I.P.C.

(h) In the meantime, P.W.14 Judicial Magistrate, on receipt of the requisition, came to the hospital and recorded her dying declaration in the presence of P.W.6 Doctor who certified that she was in a fit state of mind to give the dying declaration. Ex.P-12 is the dying declaration.

(i) After registration of the case, P.W.17 Inspector of Police came to the scene and drew Ex.P-19 rough sketch and prepared Ex.P-10 observation mahazar. He recovered M.Os.1 to 9. He continued the investigation and examined the other witnesses. He arranged to send the material objects for chemical examination through the Court. On 6-10-1997, P.W.17 received intimation that the deceased died at 3.30 p.m. on that day. Therefore, the case was altered into one under Sections 302 and 498-A I.P.C.

(j) An intimation was sent to P.W.15 Revenue Divisional Officer with regard to the death of the deceased. On receipt of the same, he came and conducted inquest over the body of the deceased. Ex.P-14 is the inquest report.

(k) P.W.17 Inspector of Police arrested the accused on 6-10-1997 at about 6.40 p.m. and sent him for judicial remand. Further investigation was taken up by P.W.18 Deputy Superintendent of Police. After completion of the investigation, he filed chargesheet against the accused for the offences under Sections 304B, 302 and 498-A I.P.C.

4. During the course of trial, P.Ws.1 to 18 were examined, Exs.P-1 to P-20 were filed and M.Os.1 to 9 were marked.

5. When the accused was questioned under Section 313 Cr.P.C., he denied having committed the crime in question. He would state that he was not available in the house at the time of occurrence and on coming to know that his wife was in the hospital, he visited the hospital and there, he was arrested and illegally detained by the Police for three days and thereafter, his arrest was shown and as such, he was an innocent.

6. In appreciation of the evidence available on record, the trial Court ultimately concluded that the prosecution has established its case beyond reasonable doubt and convicted the accused for the offence under Section 302 I.P.C.

7. Mr. B. Kumarasamy, learned counsel appearing for the appellant would take us through the entire evidence and contend that though there are three dying declarations, namely Ex.P-1, Ex.P-17 and Ex.P-12 recorded by various authorities, there is no consistency among them and therefore, all these dying declarations have to be discarded. He would further state that the other witnesses who speak about the oral dying declaration, are interested witnesses and therefore, their evidence cannot be relied upon.

8. In reply to the above submissions, Mr. E.Raja, learned Additional Public Prosecutor, in justification of the reasonings given by the trial Court for convicting the accused, would submit that the materials placed before the Court, including the dying declaration given by the deceased on the very same day, i.e. on 2-10-1997 to P.W.14 Judicial Magistrate would clearly show that the accused alone had committed the murder of the deceased and absconded from that date and ultimately, he was arrested on 6-10-1997 and as such, there is no reason for interfering with the judgment of conviction.

9. We have given our anxious consideration to the contentions urged by the counsel for the parties and perused the records.

10. On a perusal of the entire records and on consideration of the submissions made by learned counsel on either side, we are of the view that the materials available on record would be sufficient to hold that the accused alone had committed the offence of murder.

11. As seen from the records, there are three dying declarations. The occurrence took place on 2-10-1997 at 1. p.m. in the house of the parents of the deceased. The deceased was immediately taken to the hospital and admitted at about 2 p.m. P.W.5 Doctor, on hearing the statement of the deceased that her husband poured kerosene and set fire to her at her residence at about 1 p.m., recorded the same in Ex.P-1 accident register. It is also mentioned in Ex.P-1 that the deceased was brought by her mother P.W.1. This is the earliest document. As noted above, the place of residence, the place of occurrence, the time of occurrence, the name of the culprit and the manner of occurrence, all have been mentioned in Ex.P-1. P.W.5 Doctor would speak about this in his deposition.

12. The second dying declaration is Ex.P-17. This was recorded by P.W.16 Sub-Inspector of Police on 2-10-1997 at about 4 p.m. According to P.W.5 Doctor, after admitting the deceased in the hospital, he sent intimation to the Police. P.W.16 Sub-Inspector of Police, on receipt of intimation, rushed to the hospital and recorded the statement of the deceased. This is Ex.P-17. After recording the statement of the deceased, the case was registered for the offences under Sections 307 and 498A I.P.C. Then, he sent the documents to the Court as well as to the superior officers. It is noticed that Ex.P-17 has reached the Court on the same day, i.e. on 2-10-1997 at about 8.30 p.m. In the said statement, it has been clearly stated as to how the occurrence had taken place, in which the deceased was set fire to. It may be true that while recording the said statement, the Doctor was not available. But, that is not a ground to reject Ex.P-17, because just one hour prior to that, Ex.P-1 had been prepared by P.W.5 Doctor, in which all these details have been mentioned.

13. Next, we will consider Ex.P-12, the dying declaration recorded by P.W.14 Judicial Magistrate. Ex.P-3 would show that immediately, P.W.6 Doctor sent intimation to the Judicial Magistrate and on receipt of the same, P.W.14 came to the hospital and took the assistance of P.W.6 Doctor in order to find out as to whether the deceased was conscious and was able to speak. P.W.6, after examining her, told P.W.14 Judicial Magistrate that she was conscious and was able to give answers to the questions. Then, P.W.14 began recording the statement. Relevant questions were also put by the learned Judicial Magistrate to find out as to whether the deceased was able to understand the questions and she was in a fit state of mind. After recording the answers, P.W.14, the Judicial Magistrate was satisfied that the deceased was in a fit state of mind and thereupon, he recorded the entire statement Ex.P-12 from the deceased, in question and answer form. After recording Ex.P-12, a certificate also has been appended by P.W.6 Doctor.

14. A reading of Ex.P-1, Ex.P-17 and Ex.P-12 would make it clear that it is clearly stated by the deceased that there was a quarrel inside the house in the upstair portion between the accused and the deceased and ultimately, the accused poured kerosene over the body of the deceased and set fire to her with a match-stick. Though it is argued that the deceased stated in Ex.P-12 that kerosene was poured from stove and in Ex.P-17, it is stated that the kerosene was poured from can, and as such, there is discrepancy between Ex.P-17 and Ex.P-12, the oral dying declaration given by the deceased to all the other witnesses, namely P.Ws.1,2,3,4 and 9 would clearly show that the accused poured kerosene from both the stove and can. Therefore, it cannot be stated that there is a vital discrepancy between Ex.P-17 and Ex.P-12.

15. Furthermore, Ex.P-10 observation mahazar, Ex.P-19 rough sketch, the evidence of P.W.10, the mazahar witness and the evidence of P.W.17 Inspector of Police would indicate that M.O.1 stove, M.O.8 plastic can, M.O.9 gunny bag, M.O.4 burnt match sticks, all were available in the scene of occurrence and the same were recovered from the scene. Therefore, we are of the view that all the dying declarations not only passed the required tests, but also are corroborated by the evidence of other witnesses, namely P.Ws.1,2,3,4 and 9.

16. Yet another important circumstance to be noticed in this context is this: Though it is the case of the accused in Section 313 Cr.P.C. questioning, that he was not available in the house at the relevant time and subsequently, on coming to know that the deceased was in the hospital, he went to the hospital and there, he was arrested, counsel for the accused never put such suggestion to any one of the witnesses. On the other hand, a suggestion was put to P.W.1, the mother-in-law of the accused that after the occurrence was over, P.W.1 came to the scene and on seeing the deceased in flames, got angry against the accused and attempted to attack him with arival-manai. Further, the witnesses-P.Ws.1,2 and 3 would specifically state that after the occurrence was over, the accused ran away from the scene.

17. Though it is stated by the accused that he was illegally detained for about three days in the police station, there is no basis to accept this statement, in view of the fact that the complaint, which had been registered by P.W.16 Sub-Inspector of Police for the offences under Sections 307 and 498A I.P.C. on 2-10-1997, has reached the learned Magistrate on the same day at 8.30 p.m. In such circumstances, there was no necessity for P.W.17 or P.W.18 to show the arrest of the accused belatedly, since he was mentioned as accused in the F.I.R. which was registered on 2-10-1997 itself. Furthermore, P.W.17 Inspector of Police would specifically state that when the accused was arrested on 6-10-1997 at about 6.40 p.m., he was found with burn injuries on his right leg and for that, he was given treatment in the hospital. It is also noticed that the fact that the accused was living with the deceased under the same roof, has not been challenged.

18. Thus, all the factors discussed above would indicate that the accused was present at the time of occurrence. In such a situation, it is for the accused to explain as to how the deceased sustained burn injuries. Admittedly, no explanation has been offered by the accused.

19. It is submitted by learned counsel for the appellant that P.W.1 admitted that the deceased, in an earlier occasion, attempted to commit suicide and therefore, this might be a case of suicide. This contention, in our view, is not tenable for the reason that the theory of suicide is to be ruled out, because there is no stove burst and further, there is no injury either on the head or neck portion of the deceased, which would indicate the attempt to commit suicide. No suggestion had been put on this line. On the other hand, a suggestion was put to P.W.1 that the deceased caught fire because of the accidental fall of her saree on the light of the lamp.

20. Therefore, we are constrained to hold that there are enough materials to indicate that the appellant/accused alone had committed the murder by pouring kerosene and set fire to the deceased and as such, the judgment of conviction is perfectly justified. Hence, the appeal is dismissed as devoid of merits, confirming the conviction and sentence imposed on the appellant/accused by the trial Court.

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