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Pandiyan v. State represented by - Crl.A.(MD) No.408 of 2006  RD-TN 845 (7 March 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM
THE HONOURABLE MR. JUSTICE G.RAJASURIA
Crl.A.(MD) No.408 of 2006
Pandiyan .. Appellant
State represented by
Inspector of Police,
Tiruchendur Police Station,
Cr.No.1483 of 1995 .. Respondent Criminal Appeal filed under Section 374 Cr.P.C against the Judgment of conviction and sentence dated 29.11.2000 made in S.C.No.187 of 1996 on the file of the Additional Sessions Judge-cum-chief Judicial Magistrate, Tuticorin. For appellant : Mr.V.Kathirvelu
For respondent : Mr.S.P.Samuel Raj, Addl.Public Prosecutor :JUDGMENT
(Judgment of the Court was made by M.CHOCKALINGAM, J) The sole accused in a case of murder, who stood charged, tried and found guilty as per the charge of murder, awarded life imprisonment by judgment dated 29.11.2000 made in S.C.No.187/1996 by the Additional Sessions Court, Tuticorin, has brought-forth this appeal, challenging the conviction and sentence imposed on him.
2. The short facts necessary for the disposal of the appeal can be stated thus:
(a) The deceased Kannammal and her husband accused/appellant herein were residing along with children in Karisanvilai. They used to quarrel often with each other. On the date of occurrence viz., 27.12.1995, at about 11.30 p.m., the deceased Kannammal was sleeping along with her children in their house in Karisanvilai, at that time, the deceased came to the house and asked for his food but nothing was prepared. His wife, since deceased in the incident, told him, that without going for work and earning nothing how he could demand for food. On this score, a wordy quarrel arose between them and then, she was lying with her children. At that time, the accused poured kerosene on her and set fire and she sustained burn injuries and the accused sped away from the place of the occurrence. This was witnessed by the neighbours. Thereafter, she was taken to the Government Hospital, Thiruchendur, by PW.11 in a car. The trip sheet of the car was marked as Ex.P.9. When the injured was taken to the hospital, PW.9, the Doctor, who was on duty, admitted and examined her. Accident Register in that regard is Ex.P.4. Thereafter, she sent an intimation to the police, which was marked as Ex.P.3.
(b) On receipt of intimation, PW.16, Head Constable, attached to the Thiruchendur Police Station, proceeded to the Government Hospital, Thiruchendur and recorded her statement, which was marked as Ex.P.16. On the strength of the statement, a case came to be registered by the respondent police at about 5.00 a.m. on 28.12.2995 in Crime No.1483/95 for the offence under Section 307 IPC. The F.I.R., which was marked as Ex.P.17 along with statement Ex.P.1 was despatched to the Court.
(c) On 28.12.1995, on receipt of copy of the F.I.R., PW.17, the Inspector of Police, attached to Thiruchendur Police Station took up investigation and proceeded to the scene of occurrence, made inspection of the place of occurrence and prepared an Observation Mahazar Ex.P.18 and Rough Sketch Ex.P.19 in the presence of the witnesses and recovered Material Objects available at the place of occurrence under cover of Mahazar Ex.P.20. Thereafter, he proceeded to the Government Hospital and recorded the statements from the injured and one Ramachandran. He also examined the other witnesses. (d) On receipt of intimation, on 28.12.1995, PW.8, Judicial Magistrate, proceeded to the Tiruchendur Government Hospital, verified the physical and mental condition of the injured and after receiving a certificate from the Doctor that the injured was conscious and mentally fit to give the dying declaration, recorded such a declaration from the injured at about 9.15 a.m.,. Dying Declaration was marked as Ex.P.2, which is narrative of the entire incident.
(e) On 30.12.1995, on receipt of death intimation of the injured Kannammal, the case originally registered under Section 307 IPC was altered into one of Section 302 IPC. The Express F.I.R. which was marked as Ex.P.13 was despatched to the Court. PW.17, the Investigating Officer, took up further investigation and conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared an Inquest Report, which was marked as Ex.P.22.
(f) On receipt of a requisition, PW.10, the Doctor, attached to the Thiruchendur Government Hospital conducted autopsy on the dead body of the deceased and found burn injuries and the Doctor has given a Post-mortem Certificate, which is Ex.P.7 wherein he has opined that the deceased would appear to have died of shock due to burns, 12 - 14 hours prior to post-mortem. (g) Pending investigation, the accused was arrested by the investigator on 31.12.2995 at about 1.00 p.m. near Kayamozhi Muthuraman Kovil and he also had some simple injuries and he was given treatment in the hospital. In this regard, A.R. Copy is Ex.P.8. Then, the accused was placed before the Court for judicial remand. All the Material Objects recovered from the place of occurrence and from the dead body of the deceased were subjected to chemical analysis by Forensic Department. Ex.P.15 is the Chemical Analysis Report. (h) On completion of the investigation, the Investigating Officer filed a final report against the accused and the case was committed to the Court of Sessions, necessary charge was framed and the accused was tried by the Court of Sessions.
3. In order to substantiate the charge levelled against the accused, the prosecution marched 17 witnesses, and marked 22 Exhibits and Mos.14.
4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. The accused totally denied the same as false. No defence witness was examined nor any document was marked.
5. After hearing the arguments advanced by both sides, and on scrutiny of the materials, the trial Court found the appellant/accused guilty as per the charge of murder, and awarded life imprisonment, which is the subject matter of challenge before this court.
6. Learned counsel appearing for the appellant, Mr. V.Kathirvelu, while advancing his arguments on behalf of the appellants would submit that in the instant case, the occurrence had taken place at 11.30 p.m. on 27.12.1995 and the sole witness, according to the prosecution, who witnessed the occurrence was PW.1 but he turned hostile and thus the prosecution had no direct evidence to offer. The prosecution rested its case on two statements alleged to have been made by the deceased one to the Head Constable, PW.16, on the strength of which, a case came to be registered and the Judicial Magistrate, PW.8 proceeded to the Government Hospital, Thiruchendur, where the injured was admitted and recorded her dying declaration at about 9.30 a.m. on 28.12.1995 after ascertaining the fact that injured was mentally fit enough to give such a declaration. Insofar as these two documents are concerned, they suffer from infirmities and it is also highly doubtful whether such dying declarations have come into existence as put-forth by the prosecution for the simple reason that at the time when she was taken to the hospital, she was suffering from 90 burn injuries. That being so, she could not be so mentally fit enough to give dying declarations. Hence, the so-called dying declarations have got to be rejected on the ground that both these two dying declarations have a lot of discrepancies between them. In the instant case, other than these dying declarations, no other evidence was available to the prosecution. Under the circumstances, the trial court has rejected the defence version and came to the conclusion that the prosecution has proved its case beyond reasonable doubt and found the accused guilty of the charge levelled against him.
7. Added further the learned counsel that in the instant case, even assuming that the prosecution has proved that it was the accused who poured kerosene and set fire at the time of occurrence and at the place of occurrence, the act of the accused would not attract the penal provisions of the murder. The learned counsel relied on the evidence of PW.1 to state that it was not a homicidal death and it was the act of the deceased by self-immolation. According to PW.1, she was suffering from stomach-ache and therefore, she could not bear the pain and hence, she set herself fire and as a consequence of which, she died. According to the learned counsel, this evidence of PW.1 is found corroborated by the medical evidence viz., the post-mortem certificate, which discloses that blood particles were found in the stomach and thus, it was a case of causing death by the deceased herself by self-immolation but the trial Court has erroneously found the accused guilty of the charge levelled against him.
8. Added further the learned counsel that even if it was the accused who poured kerosene and set fire to his wife, it would not attract the penal provisions of murder. In the instant case, even according to the dying declaration given in the Government Hospital by her to the Judicial Magistrate PW.8, there was a wordy quarrel, which was spoken to by the deceased as to how the accused could expect food without going for work and without earning and under the circumstances, he got sudden provocation. Thus, the act of the accused would not attract the penal provisions of murder. Even as per the confessional statement alleged to have been recorded by the police officer from the accused and relied on by the prosecution, the fact that due to provocation, the accused acted so is very clear and hence, the act of the accused would not attract the penal provisions of murder and hence the beneficial penal provisions should be given to the accused/appellant.
9. The Court heard the learned Addl.Public Prosecutor appearing for the State on the above contentions and paid its anxious consideration on the rival submissions made and also perused the recorded evidence, both oral and documentary.
10. It is not in controversy that the deceased Kannammal, who sustained burn injuries, was admitted in the aforesaid hospital on 28.12.1995 and subsequently, she died on 30.12.1995.
11. It is an admitted fact that the husband/appellant was also very well available at the time and at the place of occurrence. According to the appellant, the deceased was suffering from stomach-ache and she could not bear the pain and hence she poured kerosene and set fire herself and the evidence of PW.1 was relied on by him for this purpose. It is pertinent to point out that PW.1 was a witness, who turned hostile and this part of the evidence cannot be given any weight at all and as it could be further seen that, in the instant case, the deceased has given two dying declarations stating that her husband only poured kerosene and set fire on her. No other circumstance or reason is brought out for involving her husband in the offence in such a manner. It is true, the Doctor, who conducted post-mortem, has pointed out that blood particles were found in the stomach, which cannot be a reason that she was suffering from the stomach ache. The prosecution has proved that she died out of burn injuries by thorough investigation on the case registered, on the strength of the statement given by the deceased.
12. With regard to the contention put-forth by the learned counsel for the appellant that she suffered 90 burn injuries and therefore, she could not have been in a position to give such alleged dying declarations and hence they have got to be rejected, no where, the medical jurisprudence says that a person who sustains 90 burn injuries, will not have a mental frame of mind and also at a loss to speak out. In the instant case, the Doctor, who had admitted the deceased in the Government Hospital had found that the injured was in conscious and was capable of giving statements and pursuant to the same, PW.16, Head Constable, had also found that the deceased was conscious and was able to speak out and hence, he recorded a statement and on the strength of which, the case came to be registered under Section 307 IPC. She had categorically narrated the entire incident to him. Similarly, the Judicial Magistrate PW.8, who proceeded to the Government Hospital where the deceased was admitted, also found the deceased was conscious and the Judicial Magistrate recorded her dying declaration after obtaining a certificate from the Doctor to the effect that the deceased was in a fit state of mind to give dying declaration. She had clearly spoken about the time of occurrence and place of occurrence and it was only her husband, who poured kerosene and set fire and she sustained burn injuries.
13. In the absence of any circumstance or reason brought out by the accused that she must have given such declarations against his interest, the dying declarations have got to be believed and thus the dying declarations, in the opinion of the Court, would be pointing to the guilt of the accused directly.
14. Coming to the contention of the learned counsel for the appellant that the act of the accused would not fall within the penal provisions of murder, the Court has to necessarily disagree with the contention put-forth by the learned counsel. In the instant case, both the dying declarations and also the Inquest Report and also other materials would clearly indicate that the appellant, who used to go to house in a drunken condition, quarrelled with her. As usual, on the day of occurrence, the accused went to the house at 11.30 p.m. (night hours) without going for work and even without earning anything, and asked the deceased for his food, she was also unemployed, and hence, she did not prepare any food and she was lying with her children and under the circumstances, she told the accused, how he could ask for food without earning anything. In such circumstances, the act of the deceased stated to be caused provocation cannot be accepted for the simple reason that it was night hours i.e. 11.30 p.m., in an inebriated condition, the accused went to the house, no earning, children were sleeping and at that time, naturally, the deceased responded to the accused, which would not amount to provocation. The accused on his won, with intention only, went back and brought kerosene, poured on her and set fire, which would only attract the penal provisions of murder. The prosecution has proved its case beyond reasonable doubt.
15. The trial Court has correctly found the accused guilty as per the charge of murder and rendered judgment convicting and sentencing the accused accordingly. Under the circumstance, the judgment of the trial Court is confirmed. The Criminal Appeal fails and the same is dismissed. asvm
1.The Additional Sessions Judge-cum-
chief Judicial Magistrate,
2.Inspector of Police,
Tiruchendur Police Station,
3.The Additional Public Prosecutor,
Madurai Bench of
the Madras High Court,
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