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MURUGESAN versus STATE REPRESENTED BY

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Murugesan v. State represented by - Criminal Appeal (MD) No.202 of 2004 [2007] RD-TN 1040 (21 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 21/03/2007

CORAM

THE HONOURABLE MR. JUSTICE M. CHOCKALINGAM

AND

THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR

Criminal Appeal (MD) No.202 of 2004

Murugesan .. Appellant

Vs

State represented by

Superintendent of Police,

Keeranur,

Udayalanpatti Police Station. .. Respondent

Appeal filed against the judgment in S.C.No.88/2002 on the file of the Additional District Judge-cum-Fast Track Court, Pudukkottai dated 27.2.2004. For Appellant : Mr.G.R.Swaminathan For Respondent : Mr.Senthurpandian Addl.Public Prosecutor

:JUDGMENT



(Judgment of the Court was delivered by M.CHOCKALINGAM,J.) Challenging the judgment of the Additional District-cum-Fast Track Court, Pudukkottai made in S.C.No.88/2002 whereby the sole accused/appellant stood charged, tried and found guilty under Sections 498-A and 302 IPC and awarded three years rigorous imprisonment along with fine and default sentence for the first charge and life imprisonment along with fine and default sentence for the second charge, has brought this appeal before this Court.

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

(a)P.W.1 is the father and P.W.11 is the brother of the deceased Sayavathi. The deceased was given in marriage to the accused and got four issues out of which two were alive at the time of occurrence. At the time of marriage, "Seervarisai" were given to the accused. But he was not satisfied. On different occasions, he treated the deceased cruelly and was asking for more dowry. The accused demanded money for purchasing a motor bike. But P.W.1 pacified the deceased that he will meet the demand of the accused later. Since the accused was not satisfied with P.W.1's reply, on the date of occurrence,i.e., 30.3.2002 at about 7.00 p.m. he poured kerosene on the deceased, set her ablaze and went out of the house. Immediately P.W.1 and others were informed

about the occurrence. But, no one witnessed the occurrence. (b)P.W.1 along with his family members, took the deceased to Tanjore Government Hospital where she was medically examined and treated by P.W.16, the doctor, attached to Tanjore Government Hospital. He also recorded the statement given by the deceased which is noted in Ex.P.6, the Accident Register. Despite treatment, the deceased died on 31.3.2002 at 7.30 a.m. An intimation was given through Out Post Police Station to the respondent Police Station and P.W.19, the Sub-Inspector of Police, on receipt of the intimation, proceeded to Tanjore Government Hospital and recorded the statement of P.W.1 under Ex.P.1 on the strength of which a case came to be registered under Section 302 IPC and the Express F.I.R., Ex.P.9, was despatched to the Court. An intimation was sent to P.W.22, the Judicial Magistrate No.2, Tanjore, who went over to the hospital. On being certified by P.W.16, the doctor that the deceased was in a fit state of mind to give the dying declaration, P.W.22, the Judicial Magistrate recorded the dying declaration in the presence of P.W.17, the doctor, which is marked as Ex.P.11. Then section 498-A IPC was included. The Express F.I.R., Ex.P.12 was sent to the Court.

(c)P.W.23, the Investigating Officer, took up investigation, proceeded to the spot, made an inspection and prepared Ex.P.4-the Observation Mahazar and Ex.P.13-the rough sketch in the presence of witnesses. P.W.23, conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P.14, the Inquest Report. Following the inquest, a requisition was sent to Tanjore Government Hospital for the purpose of autopsy and the dead body was subjected to postmortem by P.W.18, the doctor attached to Tanjore Government Hospital who gave the postmortem certificate, Ex.P.8 wherein she had opined that the deceased would appear to have died due to the extensive burn injuries. (d)Pending investigation, the Investigating Officer arrested the accused on 4.4.2002. The accused came forward to give a confessional statement in the presence of two witnesses, the admissible part of which is marked as Ex.P.2, pursuant to which a kerosene can was recovered under a cover of Mahazar. The accused was sent for judicial remand.

(e)On completion of investigation, the Investigating Officer filed the final report and the case was committed to Court of Sessions. Necessary charge was framed. In order to substantiate its case, the prosecution marched 23 witnesses and also relied upon 14 exhibits and 4 material objects. (f)On completion of the evidence on the side of the prosecution case, the accused was questioned under section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and he denied them as false. No defence witness was examined and the Trial Court heard the arguments advanced on either side, took the view that the prosecution has proved its case beyond reasonable doubt, found the accused guilty as per the charge under Section 498-A and 302 IPC and awarded three years rigorous imprisonment along with fine and default sentence for the first charge and life imprisonment along with fine and default sentence for the second charge which is the subject matter of challenge before this Court in this appeal.

3.Advancing his arguments on behalf of the appellant/accused, Mr.G.R.Swaminathan, learned Counsel inter-alia made the following submissions: (a)There are no eye witnesses to the occurrence and P.Ws.3 to 10 who spoke about the cruel treatment and dowry harassment have turned hostile and the prosecution has no other evidence except P.Ws.1 and 11. The learned counsel stated that P.W.1 is the father and P.W.11 is the brother of the deceased and they are interested and partisan witnesses. Under such circumstance their evidence should not be relied upon and if careful scrutiny test is applied, the Lower Court should have rejected their evidence and the circumstance relied upon by the prosecution did not bring home the guilt of the accused. (b)Added further, the learned counsel that the document relied upon by the prosecution, i.e., the dying declaration, Ex.P.11, alleged to have been given by the deceased to P.W.22, the Judicial Magistrate cannot be a reliable piece of evidence for more reasons than one. P.W.16, the doctor attached to Tanjore Government Hospital admitted the deceased for treatment. P.W.18, the doctor who conducted the postmortem, had opined that the deceased sustained 100 burn injuries. If it be so, the deceased could not have been in a frame of mind to give any declaration and such declaration could not have been given at all. (c)The learned counsel further stated that the thumb impression found in the dying declaration is not certified by P.W.22, the Judicial Magistrate, that it was the thumb impression of the deceased. Further, there was all possibility of she being tuted. Thus, this Court should not give any credence for the same. (d)Added further, the learned counsel that the occurrence, according to the prosecution, has taken place at about 7.00 p.m. in the house of the accused, and she was taken to Tanjore Government Hospital where she was given treatment and despite treatment, she died on the next day, i.e., 31.3.2002. In the meanwhile, P.W.1 would claim that when he accompanied the deceased to the hospital, the deceased did not speak anything about the occurrence to him. Had it been true, that such an occurrence has taken place, naturally one would expect the deceased to speak only to the father who is the next person to whom she is expected to speak. But, she had not done so. It would be quite clear that such an occurrence could not have been taken place at all and the dying declaration alleged to have been given by the deceased to P.W.22, the Judicial Magistrate, was nothing but the result of tutoring which has taken place subsequently.

(e)The next contention put forth by the learned counsel for the appellant is that there was a huge delay in registering the case and despatching the F.I.R. which remained unexplained. The occurrence has taken place at 7.00 p.m. on 30.3.2002. But, the information was sent to the respondent Police Station only at about 9.00 a.m. in the next morning, i.e., on 31.3.2002. P.W.19, the Sub-Inspector of police, had claimed that he went to the hospital at about 11.30 a.m. on 31.3.2002 and recorded the statement of P.W.1, the father of the deceased and returned to the Police Station at about 16.15 hours. If to be so, there was an inordinate delay in registering the case which remained unexplained. The learned counsel also stated that the prosecution came forward stating that the case was registered on 31.3.2002 and the F.I.R. has reached the Court only on 5.4.2002 and thus, this inordinate delay has not also been explained. Thus, the delay in registration of the case and despatching the F.I.R. is fatal to the prosecution case. Under such circumstances, without considering anyone of the aspects, the Trial Court has found the accused guilty and awarded the sentence which has got to be set aside and the accused should be acquitted by this Court.

4.The Court heard the learned Additional Public Prosecutor on the above contentions, paid its anxious consideration on the submissions made and made a thorough scrutiny of the materials available.

5.According to the prosecution case, one Sayavathi, the daughter of P.W.1, was given in marriage to the accused before ten years and was having four children out of which two were alive during the relevant period. Following an incident that took place on 30.3.2002, the deceased sustained burn injuries and was taken to hospital for treatment and despite treatment she died on 31.3.2002. Following the inquest, the Investigating Officer sent the dead body for postmortem. P.W.18, the doctor, attached to Tanjore Government Hospital conducted the postmortem and issued the postmortem certificate, Ex.P.8, wherein she has opined that the deceased would appear to have died due to the extensive burn injuries sustained by her. The fact that the deceased died out of burn injuries was not disputed by the accused. Hence, without any impediment, it can be factually recorded so.

6.The case of the prosecution, in gist, is that it was the accused who poured kerosene on her, set her ablaze and fled away from the place of occurrence. It is true that the prosecution had no one to speak about the fact that it was the accused who poured kerosene and set the deceased ablaze. But, after careful scrutiny of the materials available on record, this Court is able to see number of circumstances pointing to the guilt of the accused.

7.Admittedly, the accused and the deceased were living together during the relevant time. It is not the case of the accused that on the particular day, i.e., on 30.3.2002, he was away at the time of occurrence. It is also not the case of the accused that the deceased was either mad or insane or committed suicide. Under circumstance, the accused, as a responsible man and the husband of the deceased was duty bound to explain as to how the deceased died. But, no such explanation was forth coming from the accused as to how the death of the deceased was ensued.

8.The strong circumstance in favour of the prosecution is the dying declaration given by the deceased. After the incident, she was immediately taken to Tanjore Government Hospital where she was admitted by P.W.16, the doctor, attached to the said hospital to whom she has clearly mentioned that it was her husband who poured kerosene and set her ablaze. This fact is clearly mentioned in Ex.P.6, the Accident Register, which was never disputed by the accused.

9.The next circumstance is the dying declaration given by the deceased to P.W.22, the Judicial Magistrate No.2, Tanjore. According to P.W.22, on receipt of the intimation, he proceeded to Tanjore Government Hospital where the deceased was admitted for treatment. P.W.17, the doctor, attached to the said hospital, certified that the deceased was conscious enough and was having frame of mind to give the dying declaration. P.W.22 enquired the deceased and recorded her statement in the form of questionnaire. The dying declaration is also perused by this Court wherein the deceased had, in candid terms, stated that it was the accused who poured kerosene and set her ablaze. P.W.17, the doctor, has also been examined and he has clearly stated that the deceased was conscious and in a fit state of mind to give the dying declaration, and he has also certified the said fact. At this juncture, it is to be pointed out that P.W.22, the Judicial Magistrate, after getting the certificate from the doctor that the deceased was in a fit state of mind, recorded her statement. The contention put forth by the learned counsel for the appellant that the dying declaration could have been recorded due to tutoring has got to be discountenanced. There is no reason or circumstance to disbelieve the evidence of either P.W.17, the doctor who has given certificate that the deceased was mentally fit enough to give statement like that or P.W.22, the Judicial Magistrate.

10.The contention of the learned counsel for the appellant that the thumb impression of the deceased in the dying declaration was not certified either by P.W.22, the Judicial Magistrate, or P.W.17, the doctor, attached to Tanjore Government Hospital, has got to be rejected. This Court is unable to see any merit in this contention for the simple reason that the evidence of the doctor that the deceased gave the declaration and it was recorded by the Judicial Magistrate in the presence of P.W.17, the doctor and the same has been certified by P.W.17 remains unshaken and no question or suggestion was put to them in that regard. Under such circumstance, the contention put forth before this Court will not carry any merit whatsoever.

11.The next contention that there was delay in lodging information to the Police Station will be of no avail. The occurrence has taken place at 7.00 p.m. on 30.3.2002 in the house of the accused. The victim was taken to Tanjore Government Hospital where she was admitted and given treatment by P.W.16, the doctor, attached to the said hospital. The deceased gave the statement to P.W.16 when she was under treatment. But the information has reached P.W.19, the Sub-Inspector of Police through the Out Post Police Station only by 9.00 a.m. on 31.3.2002. Thereafter, P.W.16 went to the hospital, recorded the statement of P.W.1 on the strength of which a case came to be registered. At this juncture, it is to be pointed out that the Police Station is situated 50 or 60 kilometres away from the hospital and after receiving the information, P.W.16 went to the hospital at 11.30 a.m. on 31.3.2002. After recording the statement of P.W.1, he returned to the Police Station at 16.15 hours and registered the case. If there is any delay, it has taken place in the natural course of events. This cannot be considered as a delay as the same remained explained by the circumstances.

12.Yet another contention that the delay in despatching F.I.R. cannot be accepted for the simple reason that, when the F.I.R. is perused, this Court finds that the case was registered at 16.30 hours and it reached P.W.22, the Judicial Magistrate, at 7.05 p.m. and within a short span of 2 hours and 45 minutes, the F.I.R. has reached the Judicial Magistrate and as such, this Court is unable to notice any delay. There is nothing to cast doubt on the initial put by P.W.22, the Judicial Magistrate, stating that it was received by him on 31.3.2002 at 7.05 p.m. Under such circumstances, that point also does not defend the case of the accused.

13.All the points narrated above are considered by this Court and this Court is of the opinion that the above stated contentions put forth by the learned counsel for the appellant do not carry any merit whatsoever. The further argument of the learned counsel that P.Ws.3 to 10 have turned hostile and P.Ws1 and 11 are only hear say witnesses and therefore, the prosecution has not proved the ill-treatment or cruellty for dowry harassment and if that evidence in this regard fails, the prosecution case in entirety must fail, though attracts the attention of this Court, does not stand the scrutiny of law. P.W.12, who is a villager and also an independent witness, also spoke about the dowry harassment. The fact of dowry harassment should have been mainly known to three persons-firstly, the accused, who could not speak because it is against him. Secondly, the deceased from whom it cannot be expected since she has died and thirdly, the parents of the deceased. According to P.W.1, there were occasions when the deceased was driven out from her marital home. He spoke about the demand of dowry by the accused to P.W.1. There were occasions in which P.W.1 pacified and advised his daughter, the deceased to live with her husband and that the demands would be met later. The dowry harassment was also spoken to by P.W.12 who is a villager and an independent witness. Hence, the contention put forth by the learned counsel for the appellant that there was no evidence to show that there was dowry harassment, has got to be rejected.

14.Thus, all the contentions put forth by the learned counsel for the appellant do not merit acceptance and thus, the Trial Court has marshalled the evidence properly, considered the same, found the accused guilty as per the charges and sentenced him to undergo the punishment as stated supra.

15.The judgment of the lower Court in convicting and sentencing the accused to life imprisonment under Section 302 IPC and three years rigorous imprisonment under Section 498-A IPC along with fine and default sentence, does not require any interference and the same is affirmed. Hence, the appeal must fail and fails. Accordingly, the criminal appeal is dismissed. To

1. The Additional District Judge-cum-Fast Track Court, Pudukkottai

2. The Principal Sessions Judge, Pudukkottai.

3. The Superintendent of Police,

Keeranur,

Udayalanpatti Police Station.

4. The Additional Public Prosecutor,

Madurai Bench of Madras High Court, Madurai. 


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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