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T.Henry-vs-State Rep. By on 17 April, 2009

Madras High Court T.Henry-vs-State Rep. By on 17 April, 2009

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 17/04/2009

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE Ms.JUSTICE R.MALA

CRL.A.(MD) No.18 of 2009

T.Henry .. Appellant/Accused

vs

State rep. by

The Inspector of Police

Kollemcode Police Station

Kanyakumari District, Cr.No.233/2005 .. Respondent/Complainant

Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Sessions Court, Kanyakumari Division at Nagercoil, made in S.C.No.68 of 2006 dated 8.2.2008.

!For Appellant … Mr.E.Somasundaram

^For Respondent … Mr.Isaac Manuel

:JUDGMENT

(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)

This appeal challenges a judgment of the Sessions Division, Kanyakumari at Nagercoil made in S.C.No.68 of 2006 whereby the sole accused/appellant stood charged under Sections 498A and 302 of IPC and on trial, he was found guilty as per the charges and awarded life imprisonment along with a fine of Rs.5000/- and default sentence under Sec.302 of IPC and three years Rigorous Imprisonment along with a fine of Rs.1000/- and default sentence under Sec.498A of IPC.

2.The short facts necessary for the disposal of this appeal can be stated thus:

(a) The accused/appellant is the husband of the deceased Marsili. They belonged to fishermen community, and they were residing at Simitheri Vilagam at Neerodithurai. P.Ws.1 and 2 are the daughters, and P.W.4 is the elder sister of the deceased. P.W.3 was a neighbour living on the northern side of the house of the deceased. The deceased used to purchase fish and sell in the nearby villages. The accused/appellant, an alcoholic addict, used to torture her and get money from her. It even went to intolerable extent. On the earlier instances the deceased could not bear the torture and left for her maternal home, and she returned. P.W.9 was examined to the fact that she was the Sub Inspector of Police on 20.10.2004, and the deceased gave a complaint against her husband alleging that he assaulted her and demanded money. The same was treated as petition No.273/2003 and the parties appeared and gave respective statements. The same were recorded and the matter was amicable settled. (b) On 27.8.2005, the appellant went to the house where she was residing with her parents and brought her forcibly to his house. On 29.8.2005 at about 9.00 P.M., when P.Ws.1 and 2 were outside, they heard the distressing cry of their mother. Immediately they got inside and at that time, they found the appellant pouring kerosene on her and setting fire by throwing a burning match stick. This was actually witnessed by P.W.3 and also P.W.4 on hearing the noise. Then the accused fled away from the place of occurrence. She was immediately taken to Karakonam Hospital where she was admitted by a Doctor who gave initial treatment. Thereafter, she was taken to Poliyur Hospital. Then she was taken to Trivandrum Government Hospital, where she was admitted and given treatment by P.W.7, the Doctor. The accused/appellant also proceeded to Uchakadai Thiraviam Hospital nearby situated at about 4.30 P.M. and gave his name as Rajan and got treatment for the injuries sustained by him at the time of the occurrence. P.W.8 was the Doctor who medically treated him. (c) An intimation was given to the concerned police station. P.W.11, the Inspector of Police, attached to the respondent police station, came over to the hospital and recorded the statement of P.W.1 which is marked as Ex.P1, on the strength of which a case came to be registered by the respondent police in Crime No.233 of 2005 under Sec.307 of IPC. The printed FIR, Ex.P10 was despatched to the Court. A requisition was given to the Chief Judicial Magistrate for recording the dying declaration of the deceased. Accordingly, P.W.16, the Judicial Magistrate, came over there and recorded the statement at about 4.00 P.M. on that day, which is marked as Ex.P21.

(d) Taking up investigation, P.W.11, went to the spot, made an observation in the presence of witnesses and prepared, Ex.P11, the observation mahazar, and Ex.P12, the rough sketch. He recovered the material objects under a cover of mahazar, Ex.P13. P.W.14, the Inspector of Police, took up further investigation. Despite the treatment, she died due to the burn injuries on 30.8.2005. An intimation was given to the police. Then the case was altered to Sec.302 of IPC. The express report, Ex.P15, was sent to the Court. P.W.14 conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P16. Then, he gave a requisition, Ex.P18, to the hospital authorities for the purpose of postmortem. (e) P.W.13, the Associate Professor and Deputy Police Surgeon, Department of Forensic Medicine, Medical College, Thiruvananthapuram, on receipt of the said requisition, conducted autopsy on the dead body of Marsili and has issued a postmortem certificate, Ex.P14, with her opinion that death was due to burns affecting approximately 92% of body surface.

(f) Pending the investigation, the accused was arrested on 2.9.2005. He came forward to give a confessional statement pursuant to which the material objects were recovered. Then the accused was sent for judicial remand. The material objects were all sent to the forensic sciences laboratory for the purpose of analysis. Accordingly, they were subjected to chemical analysis, and Ex.P20 is the chemical analyst’s report. P.W.15, the Inspector of Police, took up further investigation, and on completion of investigation, filed the final report.

3.The case was committed to Court of Session and necessary charges were framed. In order to substantiate the charges, the prosecution examined 16 witnesses and also relied on 21 exhibits and 8 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and thus entered a judgment of conviction and sentenced him as stated above, which is the subject matter of appeal before this Court.

4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that the prosecution has marched P.Ws.1 to 4 as eyewitnesses; that the occurrence, according to the prosecution, has taken place at about 9.00 P.M. on 29.8.2005; that P.Ws.1 and 2 are the daughters; that even as per their evidence, P.W.1 was actually working as a Cook during the period 2004 and 2005 in a Convent situated 60 or 70 kilometres away from the place of occurrence; that this evidence was also fortified by the evidence of P.W.4 who is none else than the elder sister of the deceased; that this would be indicative of the fact that P.W.1 could not have been in the place of occurrence at all; that apart from that, P.Ws.1 and 2 never stayed or lived with the spouse; but, they were living with P.W.4 and thus on that ground also, it would be clear that they could not have seen the occurrence at all; that even if Ex.P1, the report, is looked into, it does not speak about any female members; that so also when P.W.1 gave evidence before the Court, she did not speak about the presence of the female members; and that all would go to show that P.W.1 could not have seen the occurrence at all.

5.Added further the learned Counsel that the occurrence had taken place on 29.8.2005; that she was first taken to Karakonam Hospital where a Doctor by name Divya John admitted her and recorded the statement; that Ex.P19 is the accident register copy, wherein it is clearly mentioned as accidental burns; that it would be clear that they were opposite to the case of the prosecution that it was the act of the accused; and that this document Ex.P19 if to be given effect, then the prosecution case is totally shattered.

6.The learned Counsel would further submit that in the instant case, the prosecution rested its case on and the trial Court has believed the dying declaration which should not have been accepted for the simple reason that at about 1.45 P.M. on 30.8.2005, P.W.11 went to the hospital and recorded the statement of P.W.1 since she has stated that the deceased was unable to speak, and hence the statement was given by her; and that if to be so, at about 4.00 P.M., the dying declaration could not have been given at all.

7.Added further the learned Counsel that consciousness and state of mind are distinct and different; that in the instant case, the Doctor has mentioned that she was conscious; but, it did not mean that she was in a mental condition to speak; that further a perusal of the dying declaration would clearly indicate that the Doctor has not certified that she was mentally all right to give such a declaration; that the said Doctor has not been examined; that all would go to show that the dying declaration should not be given any evidentiary value and it should have been rejected by the trial Court.

8.It is further submitted by the learned Counsel that according to the Investigating Officer, the deceased was originally taken to Karakonam Hospital, and thereafter, to Poliyur and then to Trivandrum Government Hospital; that if to be so, the Doctor at Poliyur Hospital should have been examined or documents could have been brought forth, but not done so; and that this would also affect the prosecution case.

9.In short, the learned Counsel would submit that it was only a stove blast, and she sustained injuries; that the accused took steps to rescue her; that in that process, he also sustained injuries; that he went to the hospital of P.W.8, the Doctor, and had treatment; that the document was also before the Court; and that it would be quite clear that he has no involvement in the offence.

10.Added further the learned Counsel that in the case on hand, there is nothing to indicate that there was any dowry harassment; that unless and until the prosecution has brought forth the cruel treatment, Sec.498-A of IPC should not have been attracted; that under the circumstances, it is a fit case for acquittal; that the trial Court has erroneously taken the view, and hence it has got to be set aside and the appellant be acquitted.

11.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.

12.It is not in controversy that one Marsili the wife of the accused/appellant, following an incident that took place at 9.00 P.M. on 29.8.2005, was taken to Karakonam Hospital where she was given initial treatment and thereafter to Poliyur Hospital and then to Trivandrum Government Hospital where she was given treatment by P.W.7, the Doctor, and despite the treatment, she died on 30.8.2005. The fact that she died out of burn injuries is an admitted one. Hence no impediment is felt by the Court in recording that she did not have a natural death, but she died out of burn injuries sustained by her.

13.In order to substantiate the charges levelled against the appellant/accused, the prosecution rested its case mainly on three aspects, firstly the direct evidence by examining P.Ws.1 to 4, secondly the dying declaration which was actually recorded by P.W.16, the Judicial Magistrate, from the deceased at 4.00 P.M. on 30.8.2005, and thirdly, the recovery of the material objects following the confessional statement voluntarily given by the accused and recorded by the Investigating Officer.

14.At the outset, it has to be pointed out that the occurrence has taken place at the residence of the appellant/accused where he was admittedly staying with his wife at the time of occurrence on 29.8.2005. Even the case of the appellant was that there was a stove blast; that she sustained injuries; that he made an attempt to save her and in that process, he sustained injuries. Thus his presence at the time of occurrence was an admitted one. Now the point for consideration is whether it was the act of the accused which caused the burn injuries leading to death or she sustained accidental burns. To the advantage of the prosecution, it had four eyewitnesses. P.W.1 is aged 22, and P.W.2 is the younger sister. P.W.4 is the elder sister of the deceased. P.W.3 is actually a neighbour who is residing on the northern side of the house of the spouse. P.Ws.1 and 2 are the daughters of the deceased and the appellant. Nowhere in the entire cross-examination, not even a suggestion was put to the witnesses why P.Ws.1 and 2 must come before a Court of law to give evidence against their father. In a given case like this, where P.W.1 aged 22 and the younger sister, P.W.2, were actually present at the time and place of occurrence, it is quite natural for them to see the occurrence. According to the evidence of P.Ws.1 and 2, they were actually outside the house, and they heard the distressing cry of their mother, and then they got inside and found the mother lying, and at that time the accused poured kerosene from the can and threw a burning match stick on her, and thus she sustained injuries. Now the contention put forth by the learned Counsel for the appellant is that P.W.1 was all along the time during 2004 and 2005 working in a Convent situated about 60 or 70 kilometres away from the place of occurrence, and hence she could not have seen the occurrence at all. Even from her evidence, it is quite clear that on the date of occurrence, P.W.1 came over to the village and stayed over there. Merely because P.W.1 has stated that she was employed in the Convent during 2004 and 2005, it cannot be stated that she could not have been in the place of occurrence. Even in her evidence she has categorically stated that she was very well present. That apart, her presence was also spoken to by P.Ws.2 to 4. There is nothing to disbelieve her evidence.

15.As far as P.W.2 is concerned, she has spoken that she found her father running away from the place of occurrence with the can. P.W.3 is a neighbour. According to him, after hearing the distressing cry, they got inside and witnessed the occurrence. Also P.W.4 is the elder sister of the deceased. A scrutiny of the evidence would clearly indicate that P.Ws.1 to 4 have been very well available in the place of occurrence and witnessed the crime. Now, at this juncture, the conduct of the accused remains to be stated. According to him, she sustained burn injuries by way of stove blast, and he went to the rescue, and he sustained injuries, and he went to Uchakadai Thiraviam Hospital of P.W.8. It remains to be stated that after getting treatment, he was actually absconding, and he did not come back. If really he had nothing to do, he should have taken steps to take her to the hospital; but, he never appeared at all. After a few days, he was arrested by the police on 2.9.2005, and he came forward to give a confessional statement in the presence of witnesses and thereafter, material objects have been recovered from him. This would be indicative of the fact that the conduct of the accused was also pointing to his involvement in the crime.

16.Added further, the dying declaration was actually recorded by the Judicial Magistrate, P.W.16, on the orders of the Chief Judicial Magistrate, and the dying declaration is also marked as Ex.P21. According to the Magistrate, examined before the Court, he verified the mental condition of the deceased, and thereafter, he recorded the same. The dying declaration would clearly indicate that it was the act of the accused. It is true that the Doctor has not certified. But, it is also not disputed that the Doctor has actually certified at the end of the declaration. Once the Judicial Magistrate has given evidence to the effect that only after verifying the mental condition and after being certified by the medical person, he has recorded the same, and the Doctor who was present, had also signed at the end of the declaration, it would clearly indicate that she was not only conscious but also oriented, and thus it has come from her mouth.

17.Now the contention put forth is that at about 1.45 P.M. on 30.8.2005, P.W.1 has given a statement, and Ex.P1 has come into existence; and that at the end of the statement, she has stated that her mother was not able to speak and because of that, she gave the statement. Now at this juncture, merely because at about 1.45 P.M., P.W.1 has given the statement, it did not mean that at about 4.00 P.M., she could not have spoken. There is nothing to disbelieve the evidence of the Magistrate or the contents of the dying declaration. In the considered opinion of the Court, this dying declaration stood in full support of the other part of the evidence put forth by the prosecution.

18.All the above three aspects namely the direct evidence, the dying declaration and the recovery of the material objects at the instance of the accused on his confessional statement, would be pointing to the guilt of the accused. Now the contentions put forth by the learned Counsel though attractive at the first instance, do not stand scrutiny of the factual position or law. Thus, they are to be rejected and accordingly, rejected. In the instant case, the entire narrative of the prosecution case stood proved that he was torturing her for money, and there were occasions where she gave complaints, and also there was a demand even on the date of occurrence which culminated in his act of pouring kerosene and setting fire to end her life. Hence the lower Court was perfectly correct in making appraisement and appreciation of evidence and coming to the right conclusion which, in the considered opinion of this Court, does not require disturbance.

19.Accordingly, this criminal appeal fails and the same is dismissed confirming the judgment of the lower Court.

nsv/

To:

1.The Sessions Judge

Kanyakumari Division at Nagercoil

2.The Inspector of Police

Kollemcode Police Station, Kanyakumari District

3. The District Collector, Kanyakumari District.

4. The Director General Of Police, Mylapore, Chennai 4.

5. The Superintendent of Central prison, Palayamkottai.

6.The Additional Public Prosecutor

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