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JAYARAJ versus STATE REP. BY

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Jayaraj v. State rep. by - Criminal Appeal No.276 of 1998 [2002] RD-TN 890 (15 November 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 15/11/2002

CORAM

THE HON'BLE MR.JUSTICE P. SHANMUGAM

AND

THE HON'BLE MR.JUSTICE P.D. DINAKARAN

Criminal Appeal No.276 of 1998

Jayaraj .. Appellant -Vs-

State rep. by

Inspector of Police

Pallikonda Police Station

Vellore Taluk. .. Respondent Appeal against the judgment dated 13.11.1997 and made in S.C.No.75 of 1997 on the file of the Court of the Principal Sessions Judge, Vellore. For Appellant : Mr.D. Rajagopal

For Respondent : Mr.A. Navaneethakirhsnan Additional Public Prosecutor :J U D G M E N T



P.D. DINAKARAN, J.

The appellant is the accused in S.C.No.75 of 1997 on the file of the learned Principal Sessions Judge, Vellore, wherein, by judgment dated 13.11.1997, the accused was convicted for the offence punishable under Section 302, IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for one year. Aggrieved by which, the accused has preferred the above appeal. 2.1. The case of the prosecution in brief is that at about 5 am on 7 .12.1994, the accused, suspecting the fidelity of his wife Kuppammal, poured kerosene on her and set her on fire, when she was sleeping in their house. The said Kuppammal sustained burn injuries over 90 to 95 and she was admitted to the Government Pentland Hospital at Vellore, where she succumbed to injuries on 9.12.1994.

2.2. The deceased Kuppammal had given five dying declarations, viz. (a) the first dying declaration is said to have been made to PW1, who is the cousin brother of the deceased Kuppammal; (b) the second dying declaration marked as exhibit P3, is said to have been made at about 6.35 am on 7.12.1994 before the Assistant Medical Officer who admitted the victim in the hospital, viz. Dr.Vasantha Kumar, who was examined as PW6;

(c) the third dying declaration marked as exhibit P9 is said to have been made at about 7.15 am on 7.12.1994 before the Head Constable, who was examined as PW9; (d) the fourth dying declaration marked as exhibit P12 is said to have been made at about 7.55 am on 7.12.1994 before the learned Judicial Magistrate III, Vellore, who was examined as PW12 ; and (e) the fifth dying declaration marked as exhibit P14 is said to have been made before the Investigating Officer, viz. Inspector of Police, Pallikonda Police Station, who was examined as PW13 .

2.3. In all the dying declarations, the injured Kuppammal, categorically and substantially declared that her husband poured kerosene on her and set her on fire at about 5.00 am on 7.12.1994, in their residence. 2.4. Immediately after the admission of the deceased Kuppammal in the hospital as an inpatient, accident register marked as exhibit P3 was prepared at 6.35 am by PW6, a report to the police marked as exhibit P4 was sent at 6.40 am, requisition of the Doctor, viz. exhibit P5 , addressed to the learned Judicial Magistrate III, Vellore, for recording dying declaration was sent at 6.45 am on 7.12.1994, and the learned Judicial Magistrate III, Vellore, on receipt of the requisition, recorded the dying declaration of the injured Kuppammal marked as exhibit P12 at about 7.40 to 7.55 am, which was also certified by Doctor Dhanalakshmi, Assistant Surgeon, who was examined as PW7, that the dying declaration was recorded in her presence and to her hearing and that the patient was conscious throughout and signed her name in the presence of the medical officer.

2.5. On receipt of the report, viz. exhibit P4, sent by the Doctor, PW6, the Sub Inspector of Police, Pallikonda Police Station, who was examined as PW11, registered a case against the accused in Crime No.5 49 of 1994, for the offence punishable under Section 307, IPC, initially. 2.6. In the meanwhile, since the said injured Kuppammal having sustained over 90 to 95 burn injuries could not survive and therefore, died at 8.30 am on 9.12.1994, in spite of intensive care and treatment by the Doctors, the crime against the accused was altered into an offence punishable under Section 302, IPC.

2.7. On receipt of death intimation from the hospital authorities, the Investigating Officer, PW13, investigated the matter and filed a final report and thereafter, the case was committed for trial to the learned Principal Sessions Judge, Vellore.

3.1. On the part of prosecution, 13 witnesses were examined as PWs 1 to 13 and 16 documents were marked as exhibits P1 to P16, of which it is relevant to mention that PWs 1 to 3 speak about the quarrel between the accused and deceased Kuppammal, PW4 is the mahazar witness, PW5 speaks about the Panchayat held between the accused and deceased Kuppammal, PW6 is the Doctor who admitted the deceased Kuppammal in the hospital as an inpatient, PW7 is the Doctor in whose presence dying declaration marked as exhibit P12 was recorded, PW8 is the Doctor who conducted Post Mortem and issued Post Mortem Certificate marked as exhibit P8, and PW13 is the Investigating Officer.

3.2. On the part of defence, only one witness was examined as DW1, viz. the daughter of the accused and deceased Kuppammal, aged about 8 years at that time and no documents were marked.

4. Appreciating the above evidence on record, both oral and documentary, the learned Principal Sessions Judge, Vellore, by judgment dated 13.11.1997, finding that the accused is guilty, convicted him for the offence punishable under Section 302, IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for one year.

5. The learned counsel for the appellant seriously challenges the judgment of the learned Principal Sessions Judge, Vellore, on the following grounds:

(a) there is no eye witness to the occurrence; (b) PWs 1, 3 and 5 are close relatives of the deceased Kuppammal and therefore, they are interested witnesses;

(c) the dying declarations made before PW1, PW6, PW9, PW12 and PW13 referred to above are self contradictory with regard to the time of occurrence; and

(d) the dying declaration made before the learned Judicial Magistrate III, Vellore, is not supported with the certificate of the Medical Officer, PW7, that the patient was in fit state of mind, even though it was certified that she was conscious throughout.

6. We have given careful consideration to the submissions made by the learned counsel for the appellant.

7.1. It is true that there is no eye witness to the occurrence. But the evidence of PWs 1 to 3, who cogently and categorically speak about the incident immediately after the occurrence, to the effect that they saw the deceased Kuppammal was running out of the house with fire and crying that the appellant poured kerosene on her and ignited her, corroborates with the statement made by the deceased Kuppammal before the duty Doctor, PW6, which was recorded in the accident register, exhibit P3, and the same reads as under.

"Alleged to have been poured kerosene on her and set fire by her husband at about 5.00 a.m. on 7.12.94 at her residence.

O/E. Patient is conscious, oriented. Pulse:96/mt. Extensive burns injuries II all over the body about 90-95 except soles of the foot. Admit in FS II Ward.

Sd/- .. (DR.G. VASANTHAKUMAR)"

7.2. Similarly, dying declarations under exhibits P9 and P14 made before PW9 and PW13 respectively, are also to the effect that the accused poured kerosene on the deceased, suspecting her fidelity and set her on fire. 7.3. That apart, the dying declaration, exhibit P12, made before the learned Judicial Magistrate III, Vellore, in the presence of the Medical Officer, PW7, is also to the effect that the accused poured kerosene on her and set her on fire.

7.4. No doubt, while giving dying declaration, the deceased Kuppammal, stated before the learned Judicial Magistrate III, Vellore, that the incident had taken place at about 4 am and the duty Doctor who was examined as PW7, even though certified that the patient was conscious throughout, had not certified that she was in fit state of mind to give the declaration. Based on these discrepancies, the learned counsel for the appellant contends that it may not be safe to rely upon the dying declarations said to have been made either to PW1 or PW2, or exhibit P3 made before PW6, or exhibit P9 made before PW9, or exhibit P14 made before PW13, as the same were made before the Police Officers, but not before the Judicial Magistrate, nor it may be safe to rely upon exhibit P12, the dying declaration made before the learned Judicial Magistrate III, Vellore, as it had not been certified that the deceased Kuppammal was in fit state of mind. 8.1. We are unable to appreciate either of the contention of the learned counsel for the appellant.

8.2. Even though PWs 1,3 and 5 are close relatives of the deceased Kuppammal and they are not eye witnesses to the occurrence, their evidence with regard to the quarrel between the accused and the deceased Kuppammal based on the

suspicion of the fidelity of the deceased Kuppammal, and the consequential Panchayat held in that regard, cannot be disregarded, inasmuch as their evidence substantially establish the motive behind the crime committed by the accused.

8.3. It is well settled in law that minor discrepancies or variations easily explainable shall not have any credibility to prevail over the testimony of dying declaration, which is consistent, truthful and reliable. The Court should not give undue importance to such minor discrepancies. 8.4. Since the deceased Kuppammal being an illiterate, particularly, when she was undergoing pain and sufferings due to burn injuries of 90 to 95, could not be expected to speak about the time of occurrence exactly and some discrepancies are bound to be there in her testimony. But the same should not be weighed by the Court so long the testimony of the deceased Kuppammal made by way of dying declaration before the learned Judicial Magistrate III, Vellore, more particularly, in the presence of the Doctor who had certified that the deceased Kuppammal was conscious throughout, as long as the same, on the one hand, corroborates with the evidence of PWs 1 to 3, and on the other hand, does not specifically and materially affect the prosecution case. Therefore, it may not be proper to wipe out the very substantial piece of evidence available under the dying declarations, as we are satisfied that these dying declarations are coherent and consistent. 8.5. It is not prudent to base the conviction merely on the dying declarations made before the Investigating Officer; but the dying declaration made before the learned Judicial Magistrate III, Vellore, cannot be rejected as the same corroborates with the evidence of PWs 1 to 3, who speak about the incident as well as the motive the crime.

8.6. A careful reading of exhibits P6, P9, P12 and P14 prove the case of the prosecution that the deceased Kuppammal had given a very detailed and graphic narration of the entire history of the case, the features of the crime committed by the accused and the motive behind it as well. 8.7. A Five Judges Bench of the Apex Court in LAXMAN v. STATE OF MAHARASHTRA reported in AIR 2002 SC 2973, while holding that where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by a Doctor, the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful, has held that

"... it is indeed a hyper technical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind specially when the magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration." 8.8. In the instant case, while recording the dying declaration of deceased Kuppammal, admittedly, the Medical Officer was also present and certified that the deceased Kuppammal was conscious throughout. Merely because the Medical Officer had not certified that the deceased Kuppammal was in fit state of mind, the truth reflected in the dying declaration made by the deceased Kuppammal before the learned Judicial Magistrate III, Vellore, particularly, when she was conscious throughout and also signed her name in the presence of the Medical Officer, cannot be ignored at all. Therefore, the testimony of the declarant made under the dying declaration is found to be trustworthy as the same corroborates in its reliability. Hence, we are unable to concede with the contention of the learned counsel for the appellant that it would be unsafe to convict the appellant based on the dying declaration. 8.9. At the same time, the evidence of minor daughter of deceased Kuppammal, who was examined as DW1, relied upon by the learned counsel for the appellant to the effect that the deceased Kuppammal died only by self immolation, cannot be appreciated, as DW1, who was aged about 8 years at the time of occurrence, in her evidence had stated that she saw the deceased Kuppammal committing self immolation, but, in the cross examination, in clear terms had deposed that the accused father and the deceased Kuppammal were sleeping in different room, while DW1 was sleeping with her grandfather and grandmother in another room and that she had not seen the occurrence at all as she normally used to sleep upto 6 am.

9. For the reasons aforesaid, we do not find any merit in the appeal and hence, the same is dismissed.

Internet : Yes

kpl

To

1. The Principal Sessions Judge

Vellore.

2. The District Collector

Vellore.

3. The Director General of Police

Chennai 4.

4. The Superintendent

Central Prison, Vellore.

5. The Public Prosecutor

Madras.

6. Inspector of Police

Pallikonda Police Station

Vellore Taluk.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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