BAIL SLIPKishore the 4th v. State rep. ByAssistant Commissioner of Police,Pulianthope Range,P-2, Vyasarpadi Police Station,Chennai-39

BAIL SLIPKishore the 4th Appellant herein (Accused NO. 5 on thefile of the III Additional Sessions Judge, Chennai) wasreleased on bail by the order of this Court dated 22.01.01and made in CRL MP NO. 288/01 in CRL A NO. 859/00.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25-01-2007CORAMTHE HONOURABLE MR.JUSTICE R.REGUPATHICrl. Appeal No.859 of 20001.Pukkraj2.Kamalabai3.Prakash4.Kishore.. Appellants/Accused 1,2,3 and 5VersusState rep. ByAssistant Commissioner of Police,Pulianthope Range,P-2, Vyasarpadi Police Station,Chennai-39... Respondent.For Appellants:Mr.V.Gopinath Senior Counsel forMr.K.Selvarangan (A1)Mr.U.Venkatesan (A-2, A-3 and A-5)For Respondent:Mr.N.KumananGovernment Advocate (Criminal side)PRAYER: Appeal under Section 374 of Crl PC preferredagainst the order of judgment passed by the Hon'ble IIIAdditional Sessions Judge, Chennai in SC.No.36 of 1999.dated 20.09.2000.J U D G M E N TThe appellants are A-1, A-2, A-3 and A-5. A-1 and A-2are the father-in-law and mother-in-law of the deceased andA-3 is the brother-in-law and A-5 is the husband of thedeceased. A-4 is the sister-in-law of the deceased. Except https://hcservices.ecourts.gov.in/hcservices/ A-4, all the accused have been convicted under Section 498Aand 304(B) IPC and they have been sentenced to undergoimprisonment for 7 years for the offence under Section 304B IPC and no separate sentence was imposed for the offenceunder Section 498A IPC. A-4 has been acquitted for thecharges. 2. The marriage of the deceased with A-5 was performedon 30.05.1996 and at that time the deceased was given 1 kgof gold, 40 kgs of silver, One set of Diamond pair, cash ofRs.2,00,000/-, Air conditioner, Fridge, Vacum Cleaner, Twoemergency lights, Kitchen wares, Furnitures, Dressing Tableand Bureau and in spite of that the deceased was ill-treated was not given food and she was not permitted to usethe air conditioner and a further demand of air cooler wasmade. In view of the said demand, the deceased was notleading a happy married life. 3. P.W.1, the father of the deceased on 04.09.1997 at11.00 p.m received intimation about the sustaining of burninjuries by the deceased on account of accidental fire andabout the admission of the deceased in the Apollo Hospital.He rushed to the Hospital and on enquiry with the deceased,the deceased alleged to have repeatedly stated that she gotburn injuries due to accident. At the time when she made anattempt to pick up the chimney from the loft, the same hasfallen on her, in the darkness and got burn injuries. P.W.1suspected some foul play and therefore, gave a complaintagainst the accused on 05.09.1997. 4. P.W.2 is the mother of the deceased and she hascorroborated the evidence of P.W.1. P.W.3 is the brother ofthe deceased and he also speaks about the dowry given tothe deceased at the time of marriage and the further demandmade to the deceased. P.W.4 and P.W.5 are neighbours andthey have been cited as witnesses to speak about thedisturbance of electricity supply on 04.09.1997 at about9.00 p.m for a while and resumed after some time. Howeverthey have not supported the case of the prosecution andtherefore treated hostile. P.W.6 is the driver of theaccused, who has attested the observation mahazar and hehas been treated hostile, as he has not supported the caseof the prosecution. However, he has admitted the signatureand the same has been marked as Ex.P-4. P.W.7 is thewitness, who speaks about the recovery of the brokenchimney glasses-M.O.1 and the burnt out clothings of thedeceased-M.O.2 and M.O.3. Ex.P-6 is the ObservationMahazar. P.W.10 is the Assistant Engineer working in theelectricity board and he has been examined to substantiatethat there was continuous electricity supply on 04.09.1997from 7.00 pm. to 10.00 p.m at the scene of occurrence andEx.P-11 is the certificate issued by him. https://hcservices.ecourts.gov.in/hcservices/

5. P.W.11 is the medical officer working in ApolloHospital, Chennai, who speaks about the admission of thedeceased on 04.09.1997 at about 9.30 p.m. The deceased wasconscious at the time of admission and it was informed bythe first accused that the deceased alleged to havesustained burn injuries at the time of attempting to getthe chimney lamp. 6. P.W.15 is the Sub Inspector of Police attached withthe Tiruvottriyur Police Station. On 04.09.1997 he receivedintimation from the Apollo Hospital at about 4.45 a.m(05.09.1997) and reached the Apollo hospital, Ward No.485and received a statement from the deceased in the presenceof the medical officer and the staff nurse. The deceasedalleged to have stated that the chimney lamp accidentallyfell on her at the time when she made an attempt to take itand sustained burn injuries. P.W.15 reached the policestation and registered a case in Crime No.1021 of 1997 asfir accident as per Ex.P-18. 7. Thereafter, a requisition was made for recordingthe dying declaration. P.W.8 the Judicial Magistrate,Tiruvottriyur on receipt of the requisition Ex.P-7, reachedthe Apollo Hospital at 12.10 p.m and recorded the dyingdeclaration of the deceased, Ex.P-8 in the presence of themedical officer. Questions were put to the deceased forwhich the deceased alleged to have stated that she made anattempt to get the chimney, which has fallen on her andthereby the deceased got burn injuries all over the body.P.W.8 has recorded that the deceased was conscious and thestatement has been recorded in the presence of the medicalofficer. 8. P.W.16 took up the investigation on 05.09.1997, receivedthe complaint-Ex.P-1 from the father of the deceased. Againon 07.09.1997, P.W.1 has given another report which hasbeen marked as Ex.P-23. After receipt of such report, theoffence has been modified into one under Section 498A andexpress report P-24 has been sent to the Magistrate. Whenhe went to the Hospital to examine the deceased, he foundher unconscious. He has examined the medical officers on07.09.1997. On 08.09.1997 A-3 was arrested. On 14.09.1997he has received an intimation from P.W.12 at about 3.15p.m, regarding the death of the deceased and altered theoffence into one under Sections 498A and 306 IPC.Thereafter sent a requisition to the RDO for conductinginquest through P.W.14 the Assistant Commissioner of Police. https://hcservices.ecourts.gov.in/hcservices/

9. The RDO-P.W.13, reached the scene of occurrence on15.09.1997 at about 3.30 p.m. During the course of inquest,he has examined the mother of the deceased who alleged tohave stated that the deceased sustained injuries at thetime when the deceased made an attempt to get the chimneyfor the purpose of going to the toilet, since there was noelectricity at the time. Though the inquest has commencedon 15.09.1997, the witnesses were produced on 16.09.1997and P.W.13 has opined after examination of five witnessesthat the death of the deceased is due to the ill treatmentof the accused. Ex.P-16 is the inquest report. 10. P.W.9 is the post mortem Doctor who attached tothe Stanley Government Hospital, on receipt of therequisition-Ex.P-9, conducted post mortem on 16.09.1997 onthe dead body of the deceased aged about 23 and opined thatthe death of the deceased was due to complication onaccount of burn injuries. Ex.P-10 is the post mortemreport. 11. On the conclusion of the investigation and afterreceiving the reports, P.W.17, Assistant Commissioner ofPolice, filed a final report on 25.05.1998 under Section498 A and 306 IPC. 12. Learned trial Judge questioned the accused underSection 313 Cr.P.C for which they have denied the offenceand claimed innocence. The learned trial Judge afterhearing both the parties convicted the accused asaforementioned. Aggrieved against the conviction andsentence, the appellants have preferred the present appeal. 13. The learned counsel appearing for the appellantssubmit that the occurrence took place at about 9.00 pm on04.09.1997. The statement of the deceased given to themedical officers at the time of admission, to the SubInspector of Police P.W.15 at the time of giving the FIR,to the learned judicial Magistrate P.W.8, at the time ofrecording the dying declaration that she sustained injuryaccidentally at the time of taking the chimney, which hasfallen on her, was consistent. In the contemporaneousmedical records, namely, the accident register-Ex.P-12, thecause of the injury has been stated as follows:"Sustained burns while trying to lit kerosenelantern". 14. P.W.1 has reached the Apollo hospital on the nextday and even at that time the deceased was conscious. P.W.1and P.W.2 spoken to her. It is the statement of P.W.1 thatthe deceased has stated that she has sustained injury onlyat the time of attempting to get the chimney lamp. However,only by suspecting foul play, a complaint has been given on https://hcservices.ecourts.gov.in/hcservices/

05.09.1997. 15. It is the case of P.W.1 that the statement givenby the deceased is not acceptable and the same has beenmade only at the instance of the accused. Such version ofP.W.1 cannot be believed. In view of the contemporaneousother evidence available. Though it has been stated thatthere was demand of dowry, P.W.1 himself has admitted thatthose demands have not been stated at the time, when he wasexamined by the police. P.W.1 himself has admitted that thedeceased has never returned to his residence afterquarrelling with her husband. In such circumstances,submitted that neither of the offence is made out .16. Learned counsel for the appellants submits thatsoon before the death of the deceased, the deceased was notsubjected to harassment and cruelty and on a perusal of thematerials available on record, the offence is notsubstantiated. It is the case of the deceased herself thatshe sustained injury only due to the accident and it is anatural death. To substantiate his contention, the learnedcounsel for the appellants relied on the cases reported inKaliyaperumal and another Vs. State of Tamil Nadu (2004 SC(Cri) 1417) and Kamesh Panjiyar alias Kamlesh Panjiyar Vs.State of Bihar (2005 SCC (Cri) 511) 17. Per contra the learned Government Advocate submitsthat though the parents of the deceased reached theHospital on 05.09.1997. The statement of the deceased thatthe death is due to accident, is unbelievable. P.W.1 toP.W.3 speak about the demand of dowry and quarrel onaccount of that. The accidental fire on account of the fallof chimney is not a believable one and the first accusedwho admitted the deceased initially, the deceased wouldhave threatened and tutored to give such statement. 18. P.W.10 who is the Assistant Engineer, ElectricityBoard stated that the supply of the electricity wasuninterrupted at the time of occurrence. Because of theseriousness and the nature of the injuries sustained, onecan presume that such injury would not have been caused bythe fall of a small chimney lamp and submitted that thecase of the prosecution has been substantiated throughP.W.1 to P.W.3 and other witnesses.19. I have perused the materials available on recordand heard the submissions made. 20. Admittedly the deceased was conscious at the timeof admission in the Apollo Hospital at 9.30 p.m. Thesincerity of admitting the deceased within ½ hour in areputed private hospital by the first accused shows thebonafide interest of the first accused in saving the life https://hcservices.ecourts.gov.in/hcservices/ of the deceased. 21. As soon as the intimation is received the, SubInspector of Police reached the hospital and the deceasedwas conscious. The FIR has been given by the deceasedherself and this itself must be considered as a dyingdeclaration. Though Ex.P-18 has been given to the SubInspector of Police, the bonafide of the same cannot bedoubted, since the same has been attested by the medicalofficer. Intimation has been given to the JudicialMagistrate for recording the dying declaration and thedying declaration itself was recorded on the next dayitself at about 12.10 p.m, in which the learned Magistrateafter observing the formalities and ascertaining theconsciousness of the deceased, recorded the dyingdeclaration, wherein, the deceased has stated that theinjury was sustained only due to the accident. 22. Even in the judicial dying declaration, themedical officer has attested, to substantiate theconsciousness of the deceased. In Ex.P-12, the medicalofficer who has admitted the deceased has specificallymentioned that the injury has been sustained accidentally.Even at the time when the RDO conducted inquest over thedead body of the deceased on the next day of theoccurrence, P.W.2 herself has stated that the death was dueto accident. 23. On a perusal of the observation mahazar and roughsketch, the broken pieces of chimney has been mentioned.P.W.1 to P.W.3 came to the Hospital after she was admittedfor burn injuries and in it appears that they made anattempt to elicit answers from the deceased, implicatingthe accused. It is the specific version of P.W.1 and P.W.2in Ex.P-1 and Ex.P-23 that the deceased repeatedly answeredthat sustained injury was due to the accident. 24. Though P.W.5 has been cited by the prosecution tosubstantiate that the electricity supply was uninterrupted,in the cross examination, they have specifically statedthat there was interruption of the supply of electricity on04.09.1997. The statement of the deceased, receivescorroboration from all these materials and I am of the viewthat such statement must be given importance and in theevent of giving importance to such statement of thedeceased, the offence under Section 304 B IPC is not madeout. Even in so far as the ill-treatment and demand ofdowry, the evidence of P.W.1 to P.W.3 is inconsistent andimprovement has been made at the time when they have givenevidence before the Court. 25. A-4 has been rightly acquitted by the trial Court,since there is no material to connect A-4 with the crime.Even in so far as the appellants are concerned, I do not https://hcservices.ecourts.gov.in/hcservices/ find any material to substantiate that the deceased wassubjected to cruelty and harassment soon before her deathand there was any ill-treatment on account of demand ofdowry. The death of the deceased was due to fire accident.In such circumstances, the conviction and sentence of thetrial Court is set aside and the appellants are acquitted.The appeal is accordingly allowed. The bail bonds, if any,shall be executed by the accused shall stand cancelled.CshSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The III Additional Sessions Judge2. - do – Thro The Principal Sessions Judge, Chennai3. The V Metropolitan Magistrate, Egmore Chennai4. - do – Thro The Chief Metropolitan Magistrate, Egmore,Chennai5. The Superintendent, Central Prison for Women. Vellore6. The Superintendent, Central Prison, Vellore7.The Superintendent, Central Prison, Chennai – 38.The Public Prosecutor, High Court, Madras9 The Assistant Commissioner of Police,Pulianthope Range,P-2, Vyasarpadi Police Station,Chennai-39.+ one cc to Mr. K. Selvarangan, Advocate sr no. 5089KSJ(CO)NM(03.02.07)Crl. Appeal No.859 of 2000