Vijaya Babu v. State rep. by Inspector of Police, Ambattur Estate Police Station, Chennai (Crime No.560/2007)

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.10.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL NO.350 OF 2009Vijaya Babu.. Appellant/AccusedVs.State rep. byInspector of Police,Ambattur Estate Police Station,Chennai (Crime No.560/2007).. Respondent/ComplainantThis criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Principal Sessions Judge,Thiruvallur made in S.C.No.99 of 2008 dated 12.06.2009.For Appellant : Mr.R.SankarasubbuFor Respondent : Mr.Babu Muthu Meeran, APP- - - - JUDGMENT(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.)This appeal is directed against the judgment of the PrincipalSessions Judge made in S.C.No.99 of 2008 dated 12.06.2009 where bythe accused was found guilty of offence under Section 302 I.P.C. andwas convicted and sentenced to undergo life imprisonment along with afine of Rs.1000/-, in default to undergo rigorous imprisonment forone year. 2.The brief facts necessary for the disposal of the appeal arestated as follows:(a) P.W.1 to P.W.5 are the occurrence witnesses. P.W.13 hadrecorded the statement for registering the case. P.W.8 was theobservation mahazar witness. P.W.7 and P.W.12 are the confession andseizure mahazar witnesses. P.W.8 was the Doctor who had given firstaid to the deceased Nagarani and prepared the A.R.copy. P.W.11 wasthe Judicial Magistrate recorded the dying declaration of the victim.P.W.14 had done the investigation and filed the charge sheet. The https://hcservices.ecourts.gov.in/hcservices/ victim was the wife of the accused. The accused was addicted toalcohol and he rendered himself jobless and therefore he used toquarrel with the deceased always and developed enmity towards hiswife Nagarani. When she questioned about his jobless life, theaccused, had planned to end the life of the victim and accordingly on29.09.2007 at about 00.15 hours at the house of the accused when thewife Nagarani was in deep sleep along with her daughter, he pouredkerosene on her body after removing his daughter from the side of hiswife and lit fire on her and the said Nagarani who was engulfed withfire had sustained sever burn injuries. On her screaming for help,the witnesses P.W.1 to P.W.4 came to her rescue and the accused hadfled away from the scene of occurrence, with his daughter. (b) P.W.1 had poured water on her and tamed the fire and senther to the hospital by engaging an auto rickshaw. P.W.2 also saw theaccused fled away with his child. Victim Nagarani also told P.W.2that her husband lit fire and ran away. P.W.3 and P.W.4 who were theneighbours, had seen the accused ran away from the scene ofoccurrence and victim also stated them that her husband lit fire onher. P.W.5 is the mother of the victim who had spoken to the effectthat her daughter had phoned up to her and said she was burnt by theaccused.(c) Doctor who attended the victim on her arrival to thehospital was P.W.8 and he had examined her on the same day at 01.45a.m. and he recorded the reasons for the accident that her husbandpoured kerosene and set her fire at 00.12 hrs. P.W.8 – Doctor hadalso found that burn injuries found on her body was to an extent of80%. The said facts were recorded in A.R. copy Ex.P5.(d) On receiving the message, the Sub Inspector of Police P.W.13had rushed to the K.M.C. hospital where she was admitted and herecorded her statement at 02.30 a.m. in Ex.P.10 and on that basis hehad registered the case in Cr.No.560/2007 under section 307 I.P.C.against the accused at 03.45 a.m on the same day. Immediately hedespatched the express F.I.R to the court concerned and gave arequisition for recording dying declaration to the Chief MetropolitanMagistrate. On that request P.W.11 was nominated at 04.10. a.m hewent to K.M.C hospital and saw the victim and ascertained the factorswhich are relevant and had recorded the dying declaration from themouth of the victim. The victim Nagarani had spoken to her that herhusband poured kerosene and set her ablaze. The Doctor who waspresent at that time had given certificate of consciousness and theJudicial Magistrate - P.W.11 had also recorded the dying declarationaccordingly in Ex.P.7.(e) Investigating Officer P.W.14, on receipt of records visitedthe scene of occurrence and prepared observation mahazar – Ex.P1 andthe Rough Sketch Ex.P.12 and recovered material objects at the sceneof occurrence and in the presence of the witnesses examined the https://hcservices.ecourts.gov.in/hcservices/ ocular witnesses and recorded their statement. Since the victim diedon the same day by 11.55 a.m, after getting death intimation fromK.M.C. hospital he altered the F.I.R through alteration report inEx.P.13 and despatched the same to the court. Thereafter he conductedinquest by 15.00 hours and completed the same by 17.00 hours on thatday. The inquest report prepared by him was produced as Ex.P.14. Healso sent the body of the victim Nagarani with a requisition toconduct autopsy. Accordingly, P.W.9, Doctor conducted autopsy andfound various burn injuries on the body of the deceased and had giventhe opinion that the deceased would appear to have died on thecomplications of burn injuries in the post mortem certificate- Ex.P.6.(f) The Investigating Officer had arrested the accused on30.09.2007 at about 07.00 a.m and the accused had given confessionstatement in the presence of P.W.7 and P.W.12 and on the basis of thedisclosure, recovery of plastic can was made through the seizuremahazar - Ex.P.9 M.O.7 blue colour plastic can with some kerosene.Thereafter the material objects recovered from the place ofoccurrence and through the confession made by the accused were sentto the court and sought them to be subjected to chemical analysis bythe Forensic Science Department. After the receipt of chemical report– Ex.P.17, he has filed the final report against the accused undersection 302 I.P.C. (g) The case was committed to the court of Sessions and it wastaken on file and on appearance of the accused, necessary chargeswere framed. In order to substantiate the charges, the prosecutionhad examined P.W.1 to P.W.14 and relied upon Exs.P.1 to P.17 andmaterial objects M.O.1 to M.O.7. On completion of the evidence on theside of the prosecution, the accused was questioned under Section 313Cr.P.C. as to the incriminating circumstances found in the evidenceof prosecution witnesses, of which the accused denied as false. Thetrial court, on hearing the arguments advanced on either side and onscrutinizing the materials available, took the view that accused hadcommitted the offence of murder and he was liable to be punishedunder section 302 I.P.C. and had awarded the life imprisonment alongwith fine. Aggrieved over the judgment, the accused has brought forththis appeal.3. While canvasssing the case for the appellant, the learnedcounsel for the appellant would submit in his argument that the lowercourt had erred in relying upon the evidence of Prosecution Witnessesand the dying declaration said to have been given by the victim andhad wrongly convicted the accused. He would further submit that themotive stated by the prosecution was feeble as the quarrel in betweenthe husband and wife is natural in every house and it could notconstitute a motive for murder. He would further submit that theevidence of P.W.1 cannot be accepted as he was not present and otherwitnesses had not spoken about pouring of kerosene by the accused onthe victim and liting fire on her. He would also submit that dying https://hcservices.ecourts.gov.in/hcservices/ declaration recorded by the Judicial Magistrate in Ex.P.7 was atutored one and the victim was influenced by P.Ws 2 to 5 to deposeagainst the accused. He would again insist the court that obtainingof thumb impression by the police and the toe impression by theDoctor from the same victim due to burn injuries would go a long wayto show that the dying declaration obtained by the JudicialMagistrate without getting any of the impression from the victim ladywould make it invalid. He would further submit that the trial courthad not found that the victim was in a sound state of mind to givethe dying declaration in the absence of examination of the Doctor whowas said to have been present at the time of recording dyingdeclaration. He would further submit that the trial court failed tosee that the accused was having two children at the age of 4 yearsand 1 ½ years respectively, while imposing the sentence against him.He would submit that it is a fit case for acquittal and therefore,the judgment of the trial court has to be set aside. 4. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made. 5. By the evidence adduced on the side of prosecution, it hadbeen clearly shown that the victim Nagarani was the wife of theaccused and they were having two children born out of there wedlockand their was quarrel everyday in between the husband and wife.P.W.5-mother of the deceased would speak to the effect that theaccused would not go for any work and on occasions he use to quarrelwith the deceased Nagarani. According to the evidence of P.W.1 toP.W.4 who happened to be the neighbours, that on 28/29.09.2007 theyheard the hue and cry of Nagarani in the midnight (early morning) andthey saw Nagarani caught in fire and was screaming and P.W.1 hadpoured water followed by other witnesses and they sent her to thehospital in an autorickshaw. Their evidence would go to show that thevictim told them that her husband had poured kerosene and lit fire.The Doctor who examined her at the hospital had prepared the AccidentRegister Ex.P.5. The said Doctor P.W.8 would speak to the effect thatthe victim Nagarani sustained 80% of the burn injuries and she wasadmitted in the hospital and she told that her husband pouredkerosene on her and lit fire and therefore the burn injuries werecaused to her. It is also found that the said Nagarani died due toburn injury by 11.55 a.m on 29.09.2007. The complaint was given bythe victim Nagarani through the statement given by her to the P.W.13prior to her death which is produced as Ex.P.10. In Ex.P.10 also shehad categorically stated as follows:@vd; fzth; ntiyf;F nghfhky; Foj;Jtpl;L tPl;onyna ,Ug;ghh;/ ,jdhy; mtUf;Fk;vdf;Fk; mof;fo jfuhW tUk;/ ,d;W 28.09.2007e; njjp mth; ntiyf;F nghfhjjhy;fhiyapy; ehd; nfl;nld;/ mjw;F mth; vg;g ghh;j;jhYk; cd;dhny nuhjidah ,Uf;F. ,d;dpf;F iel;Lf;Fs;s cd;id vd;d gz;nwd; ghU mg;god;D brhy;ypl;L btspnanghapl;lhU/ ,d;W 28.09.2007e; njjp ,ut[ 12/15 kzpf;F ehd; Jh';fp bfhz;oUe;j rkak; https://hcservices.ecourts.gov.in/hcservices/ $py;byd;W jz;zp gl;w(>) khjphp ,Ue;jpr;rp. vGe;J ghu;j;jnghJ kz;bzz;bza; thridvd; kPJ ,Ue;jpr;rp. mg;nghJ vd; fztu; jPf;Fr;rpia fpHpr;rp jP itj;J bfhSj;jptpl;lhh;/ehd; rj;jk; nghlnt mth; btspg;gf;fkhf Xotpl;lhh;/ vd; rj;jj;ij nfl;L mf;fk;gf;fj;jpy; ,Ue;jt';f Xote;J jPia mizr;rp vd;id fPH;ghf;fk; M!;gj;jpupny nrh;j;jh';f//////@After registering of the case by P.W.13, the learned JudicialMagistrate P.W.11had recorded dying declaration in Ex.P7 and theevidence of P.W.11 Judicial Magistrate would prove Ex.P.7. It wasspoken by the victim Nagarani that her husband poured kerosene andlit fire when she was asleep. The dying declaration recorded bylearned Judicial Magistrate P.W.11 was supported by the complaintgiven by the victim in Ex.P.10 and the foremost opinion given by theDoctor in Ex.P.5 Accident Register. The oral evidence adduced throughP.Ws.1 to P.W.4 would also speak to the effect that the victim wastelling them that her husband poured kerosene and lit fire. 6. The judgment of the Hon'ble Apex court reported in AIR 2002SC 2973 in between (LAXMAN vs. STATE OF MAHARASHTRA) would come upwith the following proposition of law:" .... What is essentially required is that theperson who records a dying declaration must be satisfiedthat the deceased was in a fit state of mind. Where itisproved by the testimony of the magistrate that thedeclarant was fit to make the statement even withoutexamination by the doctor the declaration can be actedupon provided the Court ultimately holds the same to bevoluntary and truthful. A certification by the doctor isessentially a rule of caution and therefore thevoluntary and truthful nature of the declaration can beestablished otherwise."7. The evidence of P.Ws.1 to P.W.4 and the admission of thevictim in the hospital immediately on the same night and the AccidentRegister in Ex.P.5 and thereafter the recording of statement byP.W.13 and the recording of dying declaration before the dawn of theday by P.W.11 would make the court to believe the version of thevictim spoken before all officials.8. However, alternatively the learned counsel for the appellantwould insist in his argument that the said pouring of kerosene andliting of fire should have been taken place on the sudden provocationdue to the quarrel between the husband and wife, which is taken placein every house and therefore the lower court was wrong in arriving toa conviction under section 302 I.P.C.9.He would also draw the attention of the court to a judgment ofHon'ble Apex Court reported in 2001 SCC (Cri) 714 between (AKHTARI BI(SMT) vs. STATE OF M.P) to a proposition of law that depriving theappellant from looking after his child would not only be against the https://hcservices.ecourts.gov.in/hcservices/ interests of the child but against the interests of the society aswell. He would again submit in his argument alternatively that thelower court had not given any consideration that the incident couldhave been happened due to a quarrel taken place in between theaccused and the victim and the said incident would invoke only suddenprovocation for the committing of the said crime. 10. This argument levelled by the learned counsel for theappellant cannot hold good because the dying declaration given by thevictim on three occasions namely in Ex.P.5, Ex.P.10 and Ex.P.7 wouldgo a long way to show that the victim was fast asleep along with herdaughter and when she felt wet and awake, she could smell thekerosene and after her daughter was removed from bed immediately byher husband, he lit fire on her. If really the husband was provokedby the quarrel had by his wife namely the victim, he would havepoured the kerosene at the time of quarrel had in between them. Buthe had waited for the victim to go for sleep and thereafter he hadexecuted the plan. This should have been hatched in his mind in themorning itself, when he had quarrel with his wife and it was utteredagainst her that he would finish her in that night. The pretension ofthe husband by saying that he had bought the kerosene for cleaningthe cycle parts would also go to show the clandestine and criminalaction of the husband to execute his plan. The accused was said tohave flied away as per the evidence of the witnesses of P.Ws.1 to 4.If he had really poured kerosene on his wife and lit fire on thesudden provocation he would have immediately understood his mistakeand tried to extinguish the fire. On the other hand he had taken hisdaughter and galloped from the scene of occurrence. Actually oneValliammal, a relative of the victim accompanied her in the autorickshaw arranged by the P.Ws.1 to 4 to the hospital. More overvictim sustained 80% of burn injuries even at the place ofoccurrence, this would go a long way to show that the injuries causedby the accused on the victim Nagarani was not on provocation but onpremeditation of the accused. The victim is none other than the wifeof the accused who was expecting secured life from her husband,especially when she had discarded her parents due to the loveraffairs had with the accused and lead a separate life with him. Whensuch is the case, the husband who has to protect his wife had turnedto be an enemy and had poured kerosene and lit fire withoutconsidering the life of their children. Certainly this circumstancewould lead to an inference that the offence committed by the accused,a heinous one. When the accused himself has not considered the futureof the life of their children, the lower court was right inconvicting the accused under section 302 I.P.C. Therefore, norevision is possible in awarding of sentence, since the minimumsentence for the offence under section 302 I.P.C. is lifeimprisonment.11. Therefore, the contentions raised by the learned counsel forthe appellant that the lower court had landed in a wrong footing inconvicting and sentencing the accused are liable to rejected. https://hcservices.ecourts.gov.in/hcservices/

12. The lower court had appreciated the evidence properly andhad found the appellant guilty under section 302 I.P.C for havingcaused the death of his wife by pouring kerosene on her and litingfire. This court is unable to notice any reason to interfere with thejudgment of the trial court.13. Accordingly, the criminal appeal fails and the same isdismissed, confirming the judgment of conviction and sentence passedby the trial Court. kpr Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Principal Sessions Judge, Thiruvallur2.Inspector of Police, Ambattur Estate,Police Station. Chennai3.The Judicial Magistrate, Ambattur.4.-do-through the Chief Judicial Magistrate, Thiruvallur.5.The District Collector, Thiruvallur.6.The director general of Police, Mylapore, Chenani -47.The Superintendent of Police, Mylapore, chennai - 48.The Public Prosecutor, High Court, Chennai.1CC to Mr.R.Sankarasubbu, Advocate (SR.55916)Crl.A.No.350 of 2009PKB (CO)SS (09.11.2009