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BALAKRISHNAN versus THE STATE OF TAMIL NADU

High Court of Madras

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Balakrishnan v. The State of Tamil Nadu - CRIMINAL APPEAL (MD) NO.382 OF 2005 [2007] RD-TN 915 (13 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 13/03/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR

CRIMINAL APPEAL (MD) NO.382 OF 2005

Balakrishnan .. Appellant Vs.

The State of Tamil Nadu,

rep. by the Inspector of Police,

Karungal Police Station,

Kanyakumari District .. Respondent This criminal appeal is preferred under Section 374(2) Cr.P.C. against the judgment of the learned Sessions Judge, Kanyakumari at Nagercoil made in S.C.No.191 of 2003, dated 5.7.2005.

For Appellant : Mr.Beno Bencigar

For Respondent : Mr.V.Kasinathan, APP

:JUDGMENT



(The judgment of the court was made by M.CHOCKALINGAM, J.) The sole accused in a case of murder in S.C.No.191 of 2003 on the file of the learned Sessions Judge, Kanyakumari Division at Nagercoil, on being found guilty as per the charge and awarded life imprisonment and to pay a fine of Rs.1000/-, in default to undergo 3 months SI, has brought forth this appeal before this court, challenging the conviction and sentence.

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

a)P.W.3 is the mother of the deceased. The deceased was married to one Mani 20 years ago and out of the wedlock, they had three children. 10 years prior to the occurrence, due to strained relationship, she was living apart and she developed intimacy with the accused and they have lived together during the relevant time. The accused is a drunkard and there arose a quarrel between the accused and the deceased. On the date of occurrence, namely on 3.1.2003 at about 9.15 p.m., the accused demanded money and thereafter, he asked the deceased to remove the ear stud. When she refused, the accused threw the burning kerosene lamp on the deceased and the deceased caught fire and she sustained burn injuries. The accused ran away from the place of occurrence. b)Immediately, on hearing the distressing cry, P.Ws.1 and 2 came over there and immediately, the deceased was taken to the Government Hospital, Colachel. P.W.7, the Doctor attached to the said Hospital, at about 9.45 p.m. gave initial treatment to her. Ex.P.5 is the wound certificate. Thereafter, she was referred to the Government Hospital, Nagercoil. P.W.8, the Doctor, gave treatment to her. Pending treatment, there was an intimation given to the Judicial Magistrate, P.W.6. On being certified by the Doctor that she was mentally and physically fit to give dying declaration, the dying declaration was recorded by the Judicial Magistrate. The dying declaration proceedings was marked as Ex.P.4.

c)On receiving an intimation, P.W.13, the Head Constable of the respondent police station went over to the hospital and recorded Ex.P.14, the statement of the severely injured, on the strength of which, a case came to be registered by the respondent police in Crime No.5 of 2003 under Section 307 IPC. Ex.P.15, the FIR was despatched to the concerned court.

d)P.W.15, the Inspector of Police, on receipt of the copy of the FIR, took up the investigation, proceeded to the scene of occurrence and made an inspection in the presence of the witnesses. He prepared Ex.P.1, the observation mahazar and Ex.P.16, the rough sketch. He also recovered the material objects, including M.O.1 kerosene lamp from the place of occurrence in the presence of the witnesses. Further investigation was done by P.W.16, the Inspector of Police. He received the intimation that the injured died in the hospital on 7.1.2003 at 5.15.a.m. Then, the case was altered to Section 302 IPC and Ex.P.17, the express report was sent to the court. He went to the Government Hospital, Nagercoil and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.18, the inquest report. e)Pursuant to the requisition, the dead body of the deceased was sent for the purpose of autopsy along with a requisition. P.W.10, the Doctor attached to the Government Hospital, Nagercoil, on receipt of the requisition, has conducted autopsy on the dead body of the deceased. she has issued Ex.P.10, the post- mortem certificate, wherein she has opined that the deceased would appear to have died of 90 of burn injuries.

f)In the meanwhile, the accused went over to James Hospital for treatment and P.W.11, the Doctor gave treatment to him. Ex.P.11 is the wound certificate of the accused. Further investigation was done by P.W.15. Pending investigation, he arrested the accused on 10.01.2003 in the presence of the witnesses. The accused voluntarily gave a confessional statement, which was recorded in the presence of the witnesses. Pursuant to the confessional statement, the accused took the investigator and the witnesses and identified the occurrence place. Thereafter, the accused was sent 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 the Forensic science Department. Ex.P.8 is the Chemical Examiner's report. On completion of the investigation, the Investigating Officer has filed the final report.

3.The case was committed to the court of sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has examined 16 witnesses and relied on 18 exhibits and 2 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned procedurally under Section 313 Cr.P.C as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial court heard the arguments advanced on either side and found the accused/appellant guilty, agreeing with the prosecution case and awarded punishment as referred to above. Hence, this appeal at the instance of the accused/appellant.

4.Advancing his arguments on behalf of the appellant, the learned counsel would submit that in the instant case, there are two eyewitnesses, namely P.Ws.1 and 2, but they have turned hostile; that the prosecution had no direct evidence to offer; that before the trial court, the prosecution relied on two documents; that Ex.P.14 was one of the documents, which was the statement alleged to have been given by the deceased to P.W.13, the Head Constable and on the strength of the same, the case came to be registered under Section 307 IPC by the respondent police; that the other one was the dying declaration alleged to have been given by the deceased to P.W.6, the Judicial Magistrate, which was marked as Ex.P.4; that a perusal of both the documents would clearly indicate that such statements could not have been given by the deceased; that according to the post-mortem Doctor, the deceased died out of 90 burn injuries; that when a person sustained 90 burn injuries, such statement with details could not have been given at all; that apart from that, P.W.6, the Judicial Magistrate was very candidly clear to the fact that she had no idea whether the deceased was tutored either by her relatives or by the police officials before recording the dying declaration, which would be quite clear that the dying declaration was only an outcome of tutoring; that when the deceased sustained 90 burn injuries, there was no possibility for her to make Ex.P.14, statement before P.W.13, the Head Constable and hence, the lower court should have rejected the case of prosecution outright.

5.Added further the learned counsel that even according to the dying declaration, she was wearing ear stud; that when the accused demanded the same, she refused and immediately, the accused threw the burning kerosene lamp; that at the time of post-mortem, no ear stud was found either, or they were removed, which would go to show that there was no ear stud at all; that if to be so, the case of prosecution that there was a demand for ear stud and she refused to remove the same and the accused immediately threw the burning kerosene lane is completely nothing, but a falsehood; that even assuming that it was the accused, who threw the burning kerosene lamp, the act of the accused would not attract the penal provisions of murder, but it was only due to quarrel and provocation and hence, it has got to be considered by the Court.

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

7.In the instant case, it is not the fact in controversy that the deceased died out of burn injuries. Following the incident at about 9.15 p.m., she was taken to the Government Hospital, Colachel, where she was given treatment by P.W.7, the Doctor and thereafter, she was taken to the Government Hospital, Nagercoil and she was given treatment by P.W.8, the Doctor. Despite treatment, she died on 7.1.2003 at about 5.15 a.m. Following the same, P.W.16, the Inspector of Police conducted inquest on the dead body in the presence of the witnesses and panchayatdars and prepared Ex.P.18, the inquest report. Pursuant to the requisition given by the Investigator, the dead body was subjected to post-mortem by P.W.10, the Doctor. She has issued Ex.P.10, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of 90 burn injuries. Apart from that, the fact that she died of burn injuries was not questioned by the appellant/accused at any stage of proceedings. This would go to show that the prosecution has proved the fact that she died out of burn injuries.

8.In order to substantiate the fact that it was the accused, who threw the burning kerosene lamp on the deceased, as a result of which, she caught fire and sustained burn injuries, the prosecution examined two witnesses, namely P.Ws.1 and 2. Though both the witnesses have turned hostile, the prosecution had sufficient evidence in the instant case. On scrutiny of the materials, the Court is able to see that there are two vital documents against the accused. One is the statement given by the deceased herself to P.W.13, the Head Constable, which was marked as Ex.P.14. Admittedly, the occurrence has taken place on 3.1.2003 at about 9.15 p.m. She was immediately taken to the Government Hospital, Colachel. On intimation, P.W.13, the Head Constable rushed to the hospital and recorded Ex.P.14, the statement of the deceased. The Doctor has deposed that she was conscious enough to give such a statement. In the said statement, she has stated that her husband demanded money and she refused and immediately, the accused threw the burning kerosene lamp on her and she sustained injuries. Following the same, there was an intimation given to P.W.6, the Judicial Magistrate. From the testimony of P.W.6, it would be quite clear that she went to the hospital and the Doctor has also certified that the injured was physically and mentally fit to give dying declaration and she was also conscious and then only, P.W.6 has recorded the dying declaration, which was marked as Ex.P.4. A reading of Ex.P.4 would clearly point to the guilt of the accused. Insofar as Ex.P.4 was concerned, no attack could be made, since only after being certified by the Doctor that the injured was in a fit state of mind, P.W.6 has recorded the same. In the instant case, there is no circumstance or reason brought forth as to why the deceased came forward to give such a statement against the accused, with whom she had associated in the past. Apart from that, the accused was found with injuries and he was medically treated by P.W.11, the Doctor and Ex.P.11 is the wound certificate in that regard. In Ex.P.11, it is stated that the accused sustained burn injuries when his wife poured kerosene and set herself ablaze.

9.In the instant case, the defence plea before the lower court and equally here also was the self immolation, but it would be quite clear from the dying declarations, two in number, one before the Head Constable under Ex.P.14 and the other before the Judicial Magistrate under Ex.P.4 that it was the accused, who threw the burning kerosene lamp on the deceased and none else has committed the same. Hence, the lower court was perfectly correct in coming to the conclusion that it was the accused, who has committed the offence. All the points now put forth by the learned counsel for the appellant will be of no consequences. In a case like this, where dying declaration points to the guilt of the accused and it is free from all doubts, the court has to sustain the conviction. The lower court was perfectly correct, both factually and legally, in recording an order of conviction and sentence. Hence, the judgment of the lower court is sustained.

10.In the result, the criminal appeal must fail and fails. Accordingly, it is dismissed.

vvk

To

1.The Sessions Judge,

Kanyakumari Division

at Nagercoil.

2.The Inspector of Police,

Karungal Police Station,

Kanyakumari District.

3.The Addl. 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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