Azhagu @ Azhagar v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 26.11.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL No.543 of 2009 Azhagu @ Azhagar ..Appellant/Sole AccusedVs.State by: Inspector of Police, Kadampuliyur Police Station, Cuddalore District. (Crime No.357/2005) ..Respondent/ComplainantThis criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Sessions Judge (Mahila Court)Cuddalore made in S.C.No.8 of 2007 dated 18.5.2009For Appellant : Mr.Philip Ravindran JesudossFor Respondent : Mr.Babu Muthu Meeran, Addl.P.P.J U D G M E N T(The judgment of the Court was made by M.CHOCKALINGAM, J.)This appeal challenges the judgment of the Sessions Division, Mahila Court, Cuddalore, made in S.C.No.8/2007 whereby the soleaccused/appellant stood charged under sections 302 and 498(A) ofI.P.C and on trial, found guilty of both the charges and awarded life imprisonment along with fine of Rs.3000/-, in default, to undergo three months rigorous imprisonment for the first charge and three years rigorous imprisonment along with fine of Rs.2,000/-, in default, to undergo three months rigorous imprisionment for the second charge.

The short facts necessary for the disposal of this appeal can be stated as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) The deceased Savithri, pursuant to the love affair, married the accused/appellant on 10.9.2004. P.W.1 is the sister of the deceased. P.Ws.2 and 3 are the parents of the deceased. At the time of marriage, gold jewels were given to the accused and there was ademand for two wheeler but the same was not given. After the marriage, both lived together in the house of the accused. Theaccused demanded for two wheeler and beat the deceased and drove herto her parent's house. Thereafter, she was sent to the accused house. She became pregnant. When P.Ws.2 and 3 went to the accused house, the accused demanded for two wheeler. After a week, the accused beat the deceased and drove her out of the house. The deceased went to her parents house and was staying there. The deceased informed that she was suffering from pain but the accused did not take her to the hospital but demanded for the vehicle, TVS 50.

Advancing the arguments on behalf of the appellants, the learned counsel Mr.Philip Ravindran Jesudoss would submit that in the instant case, the prosecution much relied on the evidence ofP.W.1 as an eye witness, but from her evidence, it is quite clear that P.W.1 could not have seen the occurrence at all. The learned counsel pointing to the evidence of P.W.1 would submit that she has admitted that, at the time of occurrence, she was sleeping. At the time of R.D.O. enquiry also, she has not whispered that she witnessed the occurrence. Thus, it would go to show that she could not have witnessed the occurrence at all. But the trial Court has accepted her evidence.

So far as the dying declaration recorded by the JudicialMagistrate is concerned, it should have rejected. According to the prosecution, the deceased was first taken to Panruti GovernmentHospital and the accident register copy was given by P.W.8, doctorat 11.50 p.m. Ex.P3 is the accident register copy where she has categorically stated that she attempted to commit suicide. This would clearly indicate that the story of the prosecution that it was act of the accused is falsified.

Added further learned counsel, the deceased was taken to the Cuddalore Government Hospital. P.W.14 Judicial Magistrate recorded the dying declaration. According to him, she was conscious and oriented enough to give declaration but the declaration should not https://hcservices.ecourts.gov.in/hcservices/ have been given at that time at all, for the simple reason that according to P.W.9, she was given seductive injection at 2.00 a.m.If to be so, she could not have been in an position to give dying declaration at 2.40 a.m. on 21.7.2005. She could be unconscious and she could not have spoken at all. Such a declaration could not have been recorded by the Judicial Magistrate. She could not have been ina fit state of mind as certified by the doctor. Therefore, the dying declaration should not have be given any effect to.

In the dying declaration allegedly recorded by the JudicialMagistrate which was marked as Ex.P.13 and in the statement alleged to have been given by her and recorded by Sub Inspector of Police inEx.P11, the deceased had not signed in the documents but she has made her thump impression. Thus, it would go to show that she was not conscious. In view of the above, the dying declaration cannot be given any evidentiary value and it cannot but be false.

Added further learned counsel, in the instant case, the motive, according to the prosecution was, since the demand of dowry was not met, the accused poured kerosene on her and set fire on her.P.Ws. 1 and 2 would categorically state that the accused did not make any dowry demand. Therefore, that charge would automatically will fall to ground. Hence, the trial Court has erroneously found him guilty. The prosecution case, is not only lacking in evidence, but also bereft of evidence. Hence, the judgment of the trial Court has got to be set aside.

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

It is not in controversy that one Savithri wife of theaccused/appellant, following the incident that had taken place on21.7.2005 at 11.00 p.m. was taken to Panruti Government Hospitalwhere she was given initial treatment by P.W.8. Thereafter, she was taken to Cuddalore Hospital on the very day at about 2.00 a.m. Then, she was taken to Pondichery Government Hospital, where she succumbed to injuries. Originally, a case was registered under section 307 IPCby P.W.13 Sub Inspector of Police on the strength of the statement given by the deceased which was marked as Ex.P11. After her death, the case was altered to section 302 IPC. P.W.9, R.D.O conducted inquest on the dead body and on request P.W.7 doctor conducted autopsy on the dead body and gave certificate under Ex.P.7 that she died out of burn injuries. The cause of death as put forth by the prosecution was never disputed by the accused before the trial Courtor before this Court. Hence, the trial Court was perfectly correct in recording so.

In order to substantiate that it was the accused who poured kerosene on the deceased and set her fire, the prosecution relied on https://hcservices.ecourts.gov.in/hcservices/ the direct evidence of P.W.1 and also other circumstances namely dying declaration recorded by the Judicial Magistrate, P.W.14 markedEx.P.13 and also statement given by the deceased to P.W.13, SubInspector marked as Ex.P.11. In the instant case, as rightly pointed out by the learned counsel for the appellant, the evidence of P.W.1was to be rejected for two reasons. P.W.1 has categorically stated at the time of cross examination that she was sleeping at the time of occurrence. Apart from that, at the time, when he was enquired by theR.D.O., she has not whispered that she had seen the occurrence. Hence, both would go to show that P.W.1 could not have seen the occurrence at all.

Insofar as the other part of the evidence placed by the prosecution before the trial Court are concerned, it would be quite clear that the prosecution has brought home the guilt of the accused. Admittedly, from the place of occurrence, P.Ws. 2 and 3 have taken her to Panruti Hospital where P.W.8, doctor was on duty. On 11.50p.m., she was given initial treatment and Ex.P3 is the AccidentRegister copy in that regard. A perusal of Ex.P3 would indicate that she attempted to commit suicide. It is pertinent to point out that this statement was not given by the deceased but by P.W.2 who was not an eye witness. The statement given by P.W.2 as found in Ex.P.3need not be given any importance in the considered opinion of the Court.

Further, the deceased was taken to Cuddalore Hospital and was given treatment. On requisition, P.W.14-Judicial Magistrate went to the Hospital and after being certified that she was in a fit state of mind, he recorded Ex.P13 dying declaration at 2.40 p.m. Thedoctor has categorically spoken to the fact that at the time when the Magistrate came over there and from the commencement of the dying declaration till the end of the said proceedings, the deceased was conscious and was in a fit state of mind. A perusal of Ex.P13 would clearly indicate that at the time there was demand of two wheeler, for which, the accused raised quarrel and he took her to the backside of the house and poured kerosene on her and set her ablaze. Aperusal of Ex.P.13 would clearly indicate that it was the accused who poured kerosene and set her ablaze since the demand of two wheeler was not met.

Now, the contention put forth by the learned counsel for the appellant that just prior to the alleged dying declaration, seductive injection was given and hence, she was not conscious cannot be accepted for the simple reason that the doctor who was present. The evidence of P.W.9-doctor, from the time of examination by the prosecution till he was cross examined in full, his evidence remains unshaky. Apart from that, the evidence of P.W.14, JudicialMagistrate was clear to the effect that the deceased was conscious at the time of recording the dying declaration. After being certified that the deceased was in a fit state of mind, she had recorded the https://hcservices.ecourts.gov.in/hcservices/ same. Under such circumstances, the Court is unable to agree with the learned counsel for the appellant. Thus, the said dying declaration, Ex.P.13 which was recorded by the Judicial Magistrate in the presence of the said medical person inspires the confidence of the Court. This Court is of the considered opinion that this single piece of evidence is suffice to sustain the conviction.

Further, the deceased has given the statement to P.W.13 SubInspector which was marked as Ex.P.10. On the strength of Ex.P.10, acase came to be registered under section 307 IPC by the respondent police and the statement also was in the nature of dying declaration.A reading of both the documents together would clearly indicate that the accused poured kerosene on her and set fire and caused her death since the demand of two wheeler was not met.

Insofar as the other contention put forth by the learned counsel for the appellant that there was no dowry demand and the finding of the trial Court has to be set aside is concerned, the Court is unable to agree with the said contention. It is true thatP.Ws. 1 and 2 have categorically stated that he has not made any dowry demand at the time of marriage. From the dying declaration, it could be seen that two wheeler was actually demanded by the accused at the time of marriage and it was not given and he was going on demanding for the same and this fact has also found place in the dying declaration. Under such circumstances, when a demand was made, it cannot but be a dowry demand and it is seen that when the demand was not fulfilled, the accused has committed a crime. The trial Courtwas correct in finding him guilty under section 498A IPC and the contention put forth by the learned counsel for the appellant do not carry any merit and it is liable to be rejected and accordingly, rejected. The learned trial Judge has marshalled the evidence proper and narrated all the reasons for finding the accused guilty, which in the opinion of the Court cannot be interfered with either factually or legally.

In the result, the appeal fails and the same is dismissed confirming the judgment of conviction and sentence passed by the trial Court. Sd/Asst. Registrar/true copy/Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ vsiTo1. THE SESSIONS JUDGEMAHILA COURTCUDDALORE2. THE INSPECTOR OF POLICEKADAMPULIYUR POLICE STATION, CUDDALORE3. THE SUPERINTENDENTCENTRAL PRISONCUDDALORE4. THE DISTRICT COLLECTORCUDDALORE5. THE DIRECTOR GENERAL OF POLICECHENNAI6. THE SECTION OFFICERCRIMINAL SECTIONHIGH COURT, MADRAS7. THE PUBLIC PROSECUTORHIGH COURT,MADRAS1 cc To Mr.Philip Ravindran Jesudoss, Advocate, SR.64234CRL.APPEAL No.543 of 2009RB(CO)sra 10.12.2009