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MUTHU KUTTY versus STATE BY INSPECTOR OF POLICE

High Court of Madras

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Muthu Kutty v. State by Inspector of Police - C.A.No.333 of 1996 [2003] RD-TN 665 (7 August 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 07/08/2003

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

C.A.No.333 of 1996

1. Muthu Kutty

2. Rackel .. Appellants -Vs-

State by Inspector of Police

Pavoor Chathram Police Station

Nellai Kattabomman District .. Respondent This criminal appeal is preferred under Sec.374 of The Code of Criminal Procedure against the judgment of the I Additional Sessions Judge, Tirunelveli made in S.C.No.241 of 1994 and dated 17.4.96. For Appellants : Mr.S.Hameed Ismail

For Respondent : Mr.V.Jaya Prakash Narayanan

Government Advocate (Crl. Side) :JUDGMENT



The two appellants/A-1 and A-2 who stood charged and tried for the offences under Ss 498 A and 302 read with 304 B of I.P.C. and found guilty under Ss 498 A and 304 B of I.P.C. and sentenced to undergo 2 years R.I. and to pay a fine of Rs.1,000/- in default to undergo 3 months R.I. under Sec.498A of IPC and also sentenced to undergo 7 years R.I. under Sec.304 B of IPC have brought forth this appeal.

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

(a) P.W.1 Tmt.Selvabaghyam is the mother, and P.W.2 Ponpandian is the brother of one Kodimalar, the victim, who was given in marriage to Bathel Raj, the son of both the accused. Out of the wedlock, they had a female born. Due to financial crisis, Bethal Raj went to Bombay seeking for better job. Before the occurrence, the said Kodilamar used to complain to P.W.1 that the accused were demanding and asking her to bring money. On one occasion, due to a quarrel on the dowry demand Kodimalar came to the house of P.W.1. On 28.5.1992, namely the date of occurrence, at about 1.30 P.M., on hearing the alarm from the house of the accused "Save me, Save me" P.W.3 Tmt.Perkmen from the neighbouring house went to the house of the accused and found Kodimalar lying on the floor with burn injuries, and smoke was also coming out then. On coming to know of the occurrence, P.Ws.1, 4, 5 and 6 saw Kodimalar. Kodimalar told them that A-2 poured kerosene on her and A-1 lit the match stick. The dress of Kodimalar was found burnt. The part of the saree was cut and removed. P.W.3 and P.W.6 Tmt.Gomathi changed the dress of the deceased Kodimalar and took her to the Government Hospital, Tenkasi by a taxi brought by P.W.4 Sundar. On the way, she informed P.W.3 that her mother-in-law and father-in-law had jointly set fire on her. P.W.2 on hearing the occurrence through P.W.4 went to the Government Hospital, Tenkasi and enquired about her sister. Kodimalar told P.W.2 about the act of the accused. (b) P.W.7 Abdulkhader, 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., Kodimalar was examined by P.W.9 Dr.Ramasamy, Assitant Medical Officer, and he recorded the statement of Kodimalar that A-1 and A-2 poured kerosene on her and set fire. He found the burns at 90. He gave an intimation under Ex.P8 to Thenkasi Police Station. P.W.14 Sankaralingam, 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 Kodimalar under Ex.P1 in the presence of P.W.9 Doctor wherein the deceased Kodimalar has affixed her thumb impression. Ex.P1 complaint was attested by P.W.4, and the same was also certified by P.W.9 Doctor. P.W.14 returned to Pavurchathiram Police Station at 7.00 P.M. and registered a case in Crime No.228/1992 under Ss 498A and 307 of I.P.C. P.W.13 Sundaramurthy, Grade I Constable attached to Pavurchathiram Police Station received the F.I.R. and handed over the same to the Judicial Magistrate, Thenkasi. A copy of the F.I.R. was also sent to the higher officials. On 28.5.92 at about 8.00 P.M., on receipt of Ex.P4 memo from the Government Hospital, Thenkasi, P.W.8 Mr.Pitchai, 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 P.W.9 Doctor, who certified that she was conscious and able to give declaration. Ex.P5 was the dying declaration recorded by the Judicial Magistrate.

(c) On receipt of the copy of the F.I.R., P.W.15 Vilavaranimurugan, Inspector of Police, Thenkasi took up the investigation, went to the Government Hospital, examined P.Ws.4 and 9 and recorded their statements. He went to Pavurchathiram, examined P.W.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 P.W.7 VAO and one Subbukutty and also prepared Ex.P16 rough sketch. He recovered M.O.1 black can with lid, M.Os.2 and 3 Saram and M.Os.3 to 5 gowns and M.O.6 match box under Ex.P3 mahazar which was attested by P.W.7 and one Subbukutty. At about 8.30 A.M. he arrested the accused in Salipudur Bus Stop and brought them to station. P. W.11 Dr.Elangovan Chellappa, attached to the Government Hospital, Thenkasi sent an intimation at 9.00 A.M. that Kodimalar who was under treatment succumbed to the burn injuries on the morning of 29.5.92. On receipt of the intimation from the Government Hospital, Thenkasi, P. W.15 Investigating Officer altered the case to Ss 498A and 302 of I.P.C. Ex.P14 altered F.I.R. was sent to the Judicial Magistrate, Thenkasi, and a copy of the same was sent to P.W.16 Ramamurthy, Revenue Divisional Officer through P.W.12 Rajendran, a Constable. P.W.16 on receipt of the express altered report, went to the Government Hospital and saw the dead body of Kodimalar. He conducted the inquest, prepared his report under Ex.P17 and sent to the Police Officials for necessary action. A copy of the petition signed by the husband of Kodimalar is marked as Ex.P18.

(d) P.W.10 Dr.Tmt.Vasantha Diana, on receipt of the requisition under Ex.P9 given by P.W.16, conducted the postmortem on the dead body of Kodimalar on 29.5.92 at 4.15 P.M. The Postmortem Doctor narrated the external injuries as follows:

Externals:

Extensive 2nd degree burns injury seen with peeling of culicle and occitional blisters all over the body except the perineum, gluteal region and both feet. Most of the burns is congested and reddish. Burns 90. P.W.10 has 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. P.W.10 Doctor has opined that the deceased would appear to have died of extensive burns 4.10 hours prior to the postmortem.

(e) P.W.17 Mr.Karuppiah, Deputy Superintendent of Police, Thenkasi took up further investigation. He examined the witnesses. The Successor to Office to P.W.17, namely Durai Raj, Deputy Superintendent of Police completed the investigation and laid the charge sheet against the accused under Ss 498 A, 304 B read with 302 of I.P.C. and Sec.4 of Dowry Prohibition Act.

3. To prove its case, the prosecution has examined 17 witnesses and marked 18 exhibits and 6 material objects. On completion of the evidence of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. On the side of the defence, the husband of the deceased was examined as D.w.1. Neither any exhibit nor any material object was marked on the side of the defence. On consideration of the rival submissions and scrutiny of the available materials, the trial Court found the accused guilty under Ss 498A and 304B of I.P.C. and sentenced them to undergo imprisonment as referred to above. Hence, this appeal.

4. Arguing for the appellants, the learned Counsel Mr.S.Hameed Ismail made the following submissions for consideration of this Court: The lower Court without any iota of evidence or material attracting the ingredients of either Sec.304B or Sec.498A of I.P.C. has found the appellants guilty under those provisions. There is no document or any evidence pointing to any cruelty or dowry demand after the marriage. The lower Court has relied on the dying declaration alleged to have been recorded from the deceased by P.W.8 Judicial Magistrate. He has deposed that the intimation under Ex.P4 was received from the hospital at 8'O Clock; and that the dying declaration was also recorded at 8'O Clock at the hospital. From his evidence, it would be clear that the said Kodimalar was not identified by anybody, and hence, it casts a doubt on the dying declaration so recorded. Even the dying declaration recorded by the Judicial Magistrate does not disclose any dowry demand. No crime number is given in the dying declaration. All the witnesses examined during the R.D.O. enquiry were relatives, and thus, the lower Court without any factual foundation has found them guilty under Ss 498A and 304B of I.P.C. Both the accused are 62 and 67 respectively at the present. Hence, the judgment of the lower Court has got to be set aside.

5. Strongly opposing the above contentions put forth by the appellants' side, the learned Government Advocate (Criminal Side) Mr.V.Jaya Prakash Narayanan would submit that in the instant case, the case was registered originally under Ss 498A and 307 on the complaint given by Kodimalar, the deceased, and dying declaration has also been recorded by P.W.8 Judicial Magistrate; that the occurrence had taken place at 1.30 P.M.; that she was admitted in the Government Hospital, Thenkasi by P.W.7 Doctor at 3.20 P.M., where she has categorically stated that her father-in-law and mother-in-law poured kerosene and set fire on her; that the R.D.O. has conducted a detailed enquiry and has also given a report; that immediately after the occurrence, the victim Kodimalar has informed about the occurrence to a witness who was examined on the side of the prosecution as P.W.3, a neighbour, and thus, the prosecution placed sufficient evidence pointing to the cruelty by making dowry demands and also the graver act of the appellants in pouring kerosene and setting fire which resulted in her death, and hence, the lower Court was perfectly correct in finding them guilty under Ss 498A and 304B of IPC, and therefore, the judgment of the trial Court has got to be confirmed.

6. A careful analysis and appraisement of the entire materials and consideration of the rival submissions has led this Court to the conclusion that the appeal is devoid of merits.

7. Admittedly, the victim Kodimalar was given in marriage to Bathel Raj, the son of A-1 and A-2, and they had a female born, and seeking a better job and income, the husband of the victim left for Bombay. During the relevant time, the victim and he ild were living with A-1 and A-2 under the same roof. P.W.1 has given evidence stating that there was occasion when she came to her house telling that they were demanding for moneys. The occurrence has taken place on 28.5.1992 at 1.30 P.M., and Kodimalar was found with burn injuries by P.W.3 and other witnesses in that house. It is not the case of the appellants that they were not available at that time and place of the occurrence in that house. She was taken and admitted to the Hospital at 3.20 P.M. with burn injuries, and she succumbed to injuries on 29.5.1992 at the Government Hospital, Thenkasi, when she was undergoing treatment, and, hence, it cannot be disputed that she died out the burn injuries. Not only Kodimalar has informed to P.W.3 that A-2 poured kerosene on her and A-2 set fire, but also she has stated to P.W.9 Doctor at the time of admission in the hospital at 3.20 P.M. the very day. P.W.9 has recorded in Ex.P7 accident register copy as follows:

"Alleged to have caught fire by pouring Kerosene by father in law and mother-in-law at 1.30 P.M. on 28.5.92 and setting fire." This would clearly indicate that at the earliest i.e. at the time of admission in the Hospital, she has informed to the Doctor the act committed by the appellants/A-1 and A-2. Finding the condition serious, P.W.9 Doctor sent a requisition to P.W.8 Judicial Magistrate, Thenkasi who on receipt of the same, went to the Hospital, ascertained from P.W.9 Doctor that the victim was conscious and recorded her dying declaration which is marked as Ex.P5. The Doctor has also certified that he was present during the time of recording the statement. A reading of the statement would clearly reveal that A-2 poured kerosene and A-1 lit fire. The Court is of the considered view that this dying declaration recorded by the Judicial Magistrate and marked as Ex.P5 is a strong piece of evidence, pointing to the heinous crime committed by the appellants/A-1 and A-2.

8. In the instant case, on the intimation by P.W.9 Doctor, P.W.14 the Head Constable attached to Pavurchathiram Police Station proceeded to the hospital and obtained the complaint of Kodimalar under Ex.P1, wherein she has affixed her thumb impression, and on the strength of the same, a case came to be registered in Cri me No.228/92 under Sec.4 98A and 307 of I.P.C. A perusal of Ex.P1 complaint given by the victim would clearly reveal that there was a dowry demand by the appellants. On her death, the case was subsequently converted to Sec.302 of I.P.C., and investigation was proceeded with. In the instant case, the prosecution has put forth all the above narrated pieces of evidence directly pointing to the guilt of the accused in respect of the cruelty by way of dowry demand and their heinous act of pouring kerosene and setting fire on her and thereby causing death. In view of the overwhelming evidence clinchingly pointing to the guilt of the accused beyond all reasonable doubts, the above contentions put forth by the appellants' side do not carry any significance. Thus, the lower Court was perfectly correct in finding the accused guilty under Ss 498 A and 304 B of I.P.C. Coming to the question of punishment, the lower Court has awarded 2 years R.I. under Sec.498A IPC along with a fine of Rs.1,000/- and in default, 3 months R.I., and has also awarded the minimum sentence of 7 years R.I. under Sec.304 B of IPC. The Court is of the view that the sentence imposed by the lower Court cannot be interfered with. Hence, there is nothing to interfere either in the conviction or in the sentence imposed by the Court below.

9. In the result, this criminal appeal fails, and the same is dismissed, confirming the judgment of the lower Court. The Sessions Judge shall take steps to commit the appellants/A-1 and A-2 to prison, if they are on bail, to undergo the remaining period of sentence. Index: Yes

Internet: Yes

To:

1) The Judicial Magistrate No.VI, Tirunelveli.

2) The Judicial Magistrate No.VI, Tirunelveli,

Thro' The Chief Judicial Magistrate, Tirunelveli. 3) The I Additional Sessions Judge, Tirunelveli. 4) The I Additional Sessions Judge, Tirunelveli

Thro' The Sessions Judge, Tirunelveli.

5) The Superintendent, Central Prison, Palayamkottai. 6) The Officer in charge of Special Sub Jail (Women), Kokkarakulam, Tirunelveli District.

7) The Public Prosecutor, High Court, Madras.

8) The D.I.G. of Police, Chennai 4.

9) Mr.V.Jaya Prakash Narayanan, Government Advocate (Crl. Side), High Court, Madras.

10)The Inspector of Police, Pavoor Chatram Police Station Nellaikattabomman District.

nsv/




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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