Madesh v. State rep.byInspector of Police,Mahendra Mangalam Police Station,Marand Halli,Dharmapuri District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21-10-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCRL.A.No.368 of 2009 Madesh..Appellant / Sole Accused..vs..State rep.by Inspector of Police, Mahendra Mangalam Police Station, Marand Halli, Dharmapuri District. (Crime No.211 of 2006)..Respondent / ComplainantCriminal Appeal filed under Section 374(2) of CriminalProcedure Code, against the judgment of the learned PrincipalSessions Judge, Dharmapuri District, made in S.C.No.23 of 2008, dated24.09.2008.For Appellant : Mr.M.G.Sankaran For Respondent : Mr.Babu Muthu Meeran, A.P.P.,JUDGMENT(Judgment of the court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Principal SessionsDivision, Dharmapuri District, made in S.C.No.23 of 2008, whereby the single and sole accused stood charged, tried and found guilty under Section 302 I.P.C.and awarded the life imprisonment along with a fine of Rs.2,000/-, in default to undergo three months rigorous imprisonment.

Short facts, necessary for the disposal of the appeal, can be stated thus: (a) The deceased was the wife of the appellant/accused, P.W.1 is the brother of the deceased and P.W.2 is the wife of P.W.1. Theywere all living at Pommanur Village. They were cobblers by profession and the house of P.Ws.1 and 2 is situated abutting the house of the deceased. The marriage between the accused and the deceased took place ten years before the date of incident and they were living happily. There were frequent quarrels between the deceased and the appellant and on the date of occurrence i.e., on30.08.2006, the accused came in a drunken mood and there was aquarrel about the missing of Rs.100/-. The deceased informed P.W.2 https://hcservices.ecourts.gov.in/hcservices/ that it was the accused, who took it in a drunken mood and spent the same, but, on the contrary, the accused was telling that it was the deceased, who took Rs.100/-, and thus, there was a quarrel in the night hours.

Advancing arguments on behalf of the appellant, the learned counsel would submit that in the instant case, the prosecution has examined P.Ws.1 and 2 as eye witnesses, of whom, admittedly, P.W.1is the brother of the deceased and P.W.2 is the wife of P.W.1 and thus, they are the interested witnesses; that a careful scrutiny of the evidence of P.Ws.1 and 2 would clearly indicate that such occurrence could not have taken place at all and apart from that, they could not have seen the occurrence at all; that both witnesses spoke to the effect that they were actually seeing the accused standing near the place of occurrence, but from the first information report produced before the Court, it is clear that neither P.W.1 norP.W.2 has seen the occurrence and they only admitted Mathammal in the hospital. Thus, it clearly shows that P.Ws.1 and 2 could not have seen the occurrence.

Added further the learned counsel that in the instant case, the dying declaration, the earliest statement Ex.P-17 was given toP.W.14, the Sub Inspector of Police of Mahendramangalam PoliceStation and when the said statement was compared with the dying declaration alleged to have been given by the deceased to P.W.8, the https://hcservices.ecourts.gov.in/hcservices/ Judicial Magistrate II, Dharmapuri, it would clearly indicate that there are lot of discrepancies and that such a declaration could have been obtained only after tutoring the deceased. Added further that since the prosecution had no direct evidence to offer, the learned trial Judge should not have passed the order of conviction and hence, the judgment has got to be set aside.

Further, as a second line of arguments, the learned counselwold submit that even assuming that the prosecution has proved its case that it was the accused who poured the kerosene on the deceased and set her ablaze, P.Ws.1 and 2 have categorically stated that they used to have frequent quarrels and on the date of occurrence, Rs.100/- was actually missing and both the husband and wife were accusing each other and in that quarrel, within a short span of time, the occurrence took place and from the above, it is quite clear that the accused had no intention to kill her but it was only aconsequence to the quarrel. Apart from that in the instant case, the accused having not tolerated the accusation made by his wife that he had taken away Rs.100/-, could have committed the act and though it was done with the knowledge, he had no intention and the trial court failed to appreciate the legal position and hence, he is entitled for an acquittal in the hands of the Court.

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

It is not in controversy that one Mathammal, following an incident that took place on 30.08.2006 at about 9.00 PM in her residence, was originally taken to the Government Hospital, Palacode, where she was given the initial treatment for burn injuries and thereafter, she was taken to Dharmapuri Government Hospital and despite the treatment, she died on 02.09.2006. The case, which was originally registered at 9.30 AM on 31.08.2006 under section 307I.P.C. was converted into section 302 I.P.C. following the inquest made by the investigator and the dead body was subjected to post-mortem by P.W.7, who gave a categorical opinion that she died due to the burn injuries. Thus, the prosecution has clearly proved that asa direct consequence of the incident that had taken place in the residence of the deceased on 30.08.2006, she had died out of burn injuries and thus, this fact has also not been controverted by the learned counsel for the appellant and thus, it has got to be recorded.

In order to substantiate that it was the accused, who poured kerosene on his wife and set her ablaze, the prosecution fortunately had the evidence of P.Ws.1 and 2. It is true that P.W.1 is the brother of the deceased and P.W.2 is the wife of P.W.1, but on the ground of mere relationship, their evidence cannot be discarded but it has to be scrutinized carefully. Both the witnesses have spoken https://hcservices.ecourts.gov.in/hcservices/ in one voice that the deceased and the accused were living for adecade and they had quarrels often with each other and on the date of occurrence, Rs.100/- was missing and they were accusing each other and their attempts to pacify the situation went in vain and following the same, the occurrence took place. Despite the cross examination, their evidence remains unshaken. On a careful scrutiny, the trialJudge has actually accepted the same, which is right and apart from that, in the instant case, the prosecution, to its benefit, added the dying declaration given by the deceased on two occasions.