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Velumani-vs-State By The Inspector Of Police on 29 October, 2009

Madras High Court Velumani-vs-State By The Inspector Of Police on 29 October, 2009

DATED : 29.10.2009

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH

CRIMINAL APPEAL No.403 of 2009

Velumani .. Appellant

Vs.

State by the Inspector of Police,

Kallavi Police Station,

Krishnagiri District.

(crime No.324 / 2005) .. Respondent

This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional Sessions Judge, Krishnagiri, Krishnagiri District, made in S.C.No.224 of 2007 dated 19.6.2009

For Appellants : Mr.E.Kannadasan

For Respondent : Mr.Babu Muthu Meeran, APP

J U D G M E N T

(The judgment of the Court was made by M.CHOCKALINGAM, J.)

Challenge is made to the judgment of the Additional Sessions Division, Krishnagiri, Krishnagiri District, made in S.C.No.224 of 2007 whereby the appellant/A1 stood charged and tried under Section 498-A and 302 I.P.C., while A2 and A3 stood charged and tried under section 302 r/w 109 I.P.C. On trial, A1 was found guilty as per the charges and awarded life imprisonment and three years rigorous imprisonment respectively along with fine and default sentences, while A2 and A3 were acquitted of the said charge.

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

(a) A1 married the deceased Govindammal two years prior to the occurrence. A2 is the sister and A3 is the brother of A1. A male child was born to them but died subsequently. Few months after the marriage, he developed intimacy with one Govinthi wife of Sivakumar of the same village. Despite the advise given by the deceased, A1 continued to have illicit intimacy. Hence, often there was quarrel between the spouse. On the date of occurrence, there was a quarrel between the husband and wife and the deceased went out of the house to go to her parental house. A2 and A3 dragged her inside the house and on their instigation, A1 poured kerosene on her and locked her inside the house and removed a tile from the roof and had thrown a lighted match stick inside the house and set her ablaze. The deceased sustained burn injuries. Thereafter, the deceased was taken to the Government Hospital, Dharmapuri and was given treatment. (b) An intimation was given to the Judicial Magistrate, Dharmapuri District, by the medical person. P.W.8 who was functioning as Judicial Magistrate, rushed to the Hospital and recorded the dying declaration of the deceased between 11.20 p.m. and 11.50 p.m. and the dying declaration proceedings was marked as Ex.P.7. Despite treatment, she died at 3.00 a.m on 19.9.2005. An intimation was given to the respondent Police Station. (c) P.W.10 Head Constable of the respondent Police Station rushed to the Hospital. Since he was informed that the deceased died, he recorded the statement of P.W.1 which was marked as Ex.P1. On the strength of Ex.P1., a case came to be registered in Crime No.324/2005 under section 302 I.P.C. The printed F.I.R Ex.P11 was dispatched to Court. On receipt of the copy of the F.I.R., the Inspector of Police took up investigation. He proceeded to the spot, made an inspection in the presence of witnesses and panchayatdars and prepared the observation mahazar Ex.P.2 and drew a rough sketch Ex.P.12. He recovered the material objects from the place of occurrence and conducted inquest on the dead body of the deceased Govindammal in the presence of witnesses and prepared Ex.P13 inquest report. Thereafter, the dead body was subjected to post mortem. (d) P.W.9, doctor on receipt of the requisition made by the Investigating Officer conducted autopsy on the dead body of the deceased Govindammal and gave his opinion in the post mortem certificate Ex. P.9 that the deceased died of hypovolumic shock due to extensive burn injuries. (e) On 28.9.2005 at 5.00 p.m. A1 was taken under police custody. He gave confessional statement in the presence of witnesses and the admissible part of the confessional statement was marked as Ex.P14 Pursuant to the same, he produced a pump M.O.3 and the same was recovered under a cover of mahazar Ex.P.15 .Thereafter, he was sent for judicial remand. On his confessional statement, A2 and A3 were also arrested and they were also sent for judicial remand. On completion of the Investigation, the Investigating Officer filed a final report. (f) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 13 witnesses and also relied on 19 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 as to the incriminating circumstances found in the evidence of the prosecution witnesses and they denied them as false. No defence witnesses were examined. The Court heard the arguments advanced on either side and took the view that the prosecution has proved its case beyond reasonable and found A1 guilty as per the charge and awarded punishment as referred to above, while A2 and A3 were acquittal of the said charge. Hence, this appeal at the instance of A1/appellant.

3. Advancing the arguments on behalf of the appellant, the learned counsel would submit, according to the prosecution, it was A1 who poured kerosene on his wife Govindammal and confined her in the house by locking outside and thereafter removed a tile of the roof and had thrown a lighted match stick and had caused burn injuries on the deceased as a result of which, she died and it was A2 and A3 who had dragged her inside the house and instigated A1 to do such an heinous act, but the prosecution has miserably failed to prove the case by adducing any evidence.

4. The prosecution had no direct evidence to offer. It relied upon circumstantial evidence. A specific case of the prosecution is that immediately after the occurrence, the deceased was taken to the Government Hospital, Dharmapuri, and she was treated by a medical person during night hours on 18.9.2005 but the prosecution has neither examined the said doctor who gave treatment nor produced the accident register copy regarding the treatment given to her. Hence, the non-production of those documents would lead to the presumption that if those documents were produced it would go against the prosecution case. Hence, those documents were not produced. According to P.W.8, the Judicial Magistrate, he received an intimation from the Inspector of Police. On the contrary, the Inspector of Police who was examined as P.W.12 has categorically stated that he has not given any intimation to the Magistrate. Thus, it is highly doubtful how the Magistrate had come to the Hospital.

5. Added circumstances in favour of the appellant was that though P.W.8 Judicial Magistrate claim that the medical person was very well available at the time of recording the dying declaration till the end and the said medical person has also certified in the dying declaration, Ex.P7 stating that the deceased was mentally fit to give such a declaration, the said medical person was not examined in order to speak about those fact which would also affect the prosecution case.

6. The learned counsel would further submit that according to the prosecution, the last circumstances is that after pouring kerosene on the deceased and locking from outside the house, the accused climbed on the roof and removed one of the tiles and had thrown a lighted match stick inside the house, but a perusal of the observation mahazar would indicate that no such removal of tile which would also falsify the prosecution story. All would go to show that the prosecution has not proved its case beyond reasonable doubt. Hence, the appellant/A1 is entitled for acquittal in the hands of this Court.

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

8. It is not in controversy that one Govindammal wife of the appellant pursuant to the incident that had taken place at 7.30 p.m. on 18.9.2005 was taken to Dharmapuri Government Hospital and despite treatment, she died at 3.00 a.m. on 19.9.2008. The cause of death as putforth by the prosecution i.e., Govindammal died of hypovolumic shock due to extensive burn injuries was never disputed by the appellant before the trial Court or before this Court. Hence, it could be safely recorded so.

9. True it is, in order to substantiate that it was the appellant/accused who caused burn injuries by throwing the lighted match stick on her, the prosecution had no direct evidence to offer. But after scrutiny of the entire materials, the Court is thoroughly satisfied that the prosecution has placed necessary circumstances pointing to the guilt of A1/appellant. In the instant case, P.W.8 Judicial Magistrate who has been examined on the side of the prosecution has stated that on intimation, he rushed to the hospital and recorded the dying declaration of the deceased Govindammal after getting certification from the medical person that she was in a disposing state of mind to give such a declaration. The dying declaration of Govindammal was marked as Ex.P7. When Ex.P7 was perused it would clearly indicate that she has narrated the entire incident that A1 got illicit intimacy with another lady called Govinthi and often there was quarrel between the spouse regarding the same. On the date of occurrence also, there was a quarrel between the spouse and apart from that, she was dragged by A2 and A3 and she was pushed inside the house and her husband poured kerosene on her and locked the door from outside and thereafter, removed a tile from the roof and had thrown a lighted match stick and set her ablaze. Hence, she sustained burn injuries.

10. It is pertinent to point out that the occurrence has taken place at 7.30 p.m. on 18.9.2005 and the Judicial Magistrate has recorded the dying declaration at 11.20 p.m. on the same day i.e.,within a short span of time of four hours. According to the Judicial Magistrate, she was conscious and oriented enough to give the statement in entirety and after being certified by the medical person, the dying declaration was recorded by him. It is pertinent to point out that the medical person has also certified which was found in Ex.P7 dying declaration. It is in the presence of medical person, the dying declaration was recorded but the said medical person was not examined. It is well proposition of law that even when the medical person was not available and the certification was also not made, the dying declaration recorded by the Judicial Magistrate could be acted upon provided that piece of evidence inspires the confidence of the Court and acceptable. In the instant case, no reason is brought about to cast doubt on the dying declaration so recorded. It was the Judicial Magistrate, P.W.8 who has recorded the same. Under such circumstances, the Court is of the considered opinion that Ex.P7 dying declaration recorded from the deceased was the strong piece of evidence against the accused which is sufficient to sustain the conviction.

11. Insofar as the contention putforth by the learned counsel for the appellant that the doctor, P.W.8 who initially examined the deceased was not examined and also the accident register has not been marked is concerned, it is true that the investigator should have been careful enough in producing those documents but he did not produce the same. Equally in the observation mahazar and the rough sketch were prepared by the investigating officer but he has not pointed out that a tile was removed from the roof of the house. Thus, some defects are found on the part of the investigator but these defects, though noticed by the Court, will not take away the rigor or truth of the prosecution case, when there was a dying declaration made by the deceased herself against her husband and was recorded by the Judicial Magistrate as narrated above. Under such circumstances, the trial Court is perfectly correct in finding A1/appellant guilty under section 302 I.P.C. and awarding life imprisonment along with fine and default sentence.

12. Insofar as the offence under section 498A I.P.C. is concerned, though the trial Court has found A1 guilty, this Court is unable to notice any material either to hold or infer that the accused was found guilty under Section 498A IPC. Under such circumstances, A1 is acquitted of the charge under Section 498-A IPC. Therefore, the conviction and sentence imposed on the appellant under section 498-A IPC are set aside and the appellant is acquitted of the said charge. Fine amount, if any paid by the appellant in that regard, shall stand cancelled. The conviction and sentence imposed on A1/appellant by the trial Court for the offence under section 302 I.P.C. are confirmed.

13. With the above modification in conviction and sentence, the appeal stands dismissed.

vsi

To

1. The Additional Sessions Judge,

Krishnagiri, Krishnagiri District

2. The Inspector of Police,

Kallavi Police Station,

Krishnagiri District.

3. The Public Prosecutor,

High Court,

Chennai

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