NagendranS/o Chinnan @ Chinnaya v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.01.2008CORAMTHE HONOURABLE MR.JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCriminal Appeal No.285 of 2007NagendranS/o Chinnan @ Chinnaya ..Appellant/Accused-vs-State rep.by Inspector of PolicePeranampet Police StationPeranampetGudiyatham Taluk(Crime No.1365/99)..Respondent/RespondentVellore District.Memorandum of Grounds of Criminal Appeal under Section374(2) of the Criminal Procedure Code against the judgmentdated 23.9.2003 made in S.C.No.58 of 2001 on the file of thelearned Additional District and Sessions Judge (Fast TrackCourt), Vellore.For Appellant::Mr.A.S.ChakravarthyFor Respondent::Mr.P.KumaresanAddl. Public Prosecutor JUDGMENT(Judgment of the Court was delivered by D.MURUGESAN, J.)The appellant is the sole accused, who stands convictedfor the offence under Section 302 IPC and sentenced to undergoimprisonment for life and also to pay a fine of Rs.5,000/-, indefault to undergo rigorous imprisonment for six months by thejudgment dated 23.9.2003 passed by the learned AdditionalDistrict and Sessions Judge, Vellore made in S.C.No.58 of 2001.2. The appeal arises under the following circumstances:-The prosecution charge sheeted the appellant/accused forcommission of the offence of murder of one Latha, the sister ofP.W.1, aged about 15 years, by pouring kerosene and setting herablaze. The accused was assisting one Lakshmanan-P.W.2, who is https://hcservices.ecourts.gov.in/hcservices/ the husband of P.W.1, in his electrical works. Therefore, heused to visit the house of P.Ws.1 & 2 frequently and used tofreely move with the family members. Taking advantage of theabove, he closely moved with the deceased. On the day ofoccurrence i.e., on 30.12.99, at about 3.00 p.m., when thedeceased was alone in the house of P.W.1, the accused camethere and started to misbehave with the deceased, to which thedeceased objected. Thereafter, the deceased pushed the accusedoutside the house. In the meantime, the accused took a kerosenecan and, after leaving the house, poured the same through thewindow on the deceased, who had locked the doors from inside,and set her ablaze. P.W.1, who had gone to fetch water alongwith the deceased just prior to the occurrence, sent thedeceased to the house, as there might be delay in fetchingwater, and after sometime, she returned and found the accusedrunning away from the place. While she shouted, P.W.15 came tothe place of occurrence and, after breaking the doors, broughtthe deceased outside the house and saw the serious burninjuries on her. He also made attempts to save her life bycovering the body with a gunny bag. Thereafter, P.W.1 took thedeceased in a van to Pernampet Government Hospital andthereafter to Gudiyatham Government Hospital and lastly toVellore Government Hospital, where she succumbed to the burninjuries at 10.00 p.m., on the same day. 3. On receipt of intimation from the Vellore GovernmentHospital, P.W.16, the then Inspector of Police attached toPernampet Police Station, went to the hospital and recorded thecomplaint, Ex.P-1 from P.W.1 at about 12.30 a.m., on 31.12.99.He came to the police station at 3.00 a.m., and registered acase in Cr.No.1365 of 1999 for the offence under Section 302IPC. The First Information Report is Ex.P-15. He forwarded theexpress reports to the Court as well as to the higher policeofficials. He proceeded to the Vellore Government Hospital at9.30 a.m., on 31.12.99 and conducted inquest on the body of thedeceased in the presence of panchayatdars and witnesses andrecorded their statements. The inquest report is Ex.P-16.Thereafter, he sent a requisition through the Head Constable1877 to the duty doctor for conducting post-mortem on the bodyof the deceased.4. P.W.12, Senior Assistant Surgeon deputed to VelloreGovernment Hospital, commenced post-mortem on the body of thedeceased at 3.30 p.m., on 31.12.99 and she noted the followingexternal injuries:-"There are extensive II degree burnspresent on the face, neck, front of thorax, frontof both arms, palms, abdomen, pubic area, frontof both thighs, legs (L) foot, on the back ofneck, back of both arms, palms, whole of back,genital regions, back of thighs, legs and (L)foot, (R) foot alone is spared and in most of theplaces skin is peeled off. The scalp hair isburnt and crinkled, eyes are closed, mouth closed https://hcservices.ecourts.gov.in/hcservices/ and tongue inside jaws clenched. Rigor mortispresent in all four limbs."She issued the post-mortem certificate, Ex.P-12 with her finalopinion that the death was due to hyporolemic shock due toextensive 100% II degree burns and the deceased would appear tohave died 16 to 20 hours prior to post-mortem.5. P.W.16, continuing with his investigation, went to thescene of occurrence and prepared the Observation Mahazar, Ex.P-2 and also drew rough sketch, Ex.P-17 in the presence ofwitnesses. He examined the other witnesses and recorded theirstatements. He examined the doctors, P.Ws.10 & 11 and theJudicial Magistrate, Gudiyatham-P.W.9 on 1.1.2000 and recordedtheir statements. On receiving information as to thewhereabouts of the accused on 4.1.2000, he went toKothamarikuppam village at about 8.00 a.m., and arrested theaccused in the presence of P.Ws.7 & 8. In pursuance of theadmissible portion of the confession of the accused under Ex.P-18, he recovered the 5 litres plastic kerosene can, M.O.1 inthe presence of the same witnesses under the mahazar, Ex.P-19.He brought the accused and the seized material object to thePernampet police station at 12.00 noon and remanded him tojudicial custody. He examined P.W.1 and recorded herstatement. He examined the post-mortem doctor and recorded herstatement. He thereafter transferred the investigation toP.W.17.6. P.W.17, the successor Investigating Officer,scrutinised the files and the investigation carried out by hispredecessor and after getting legal opinion, laid the chargesheet against the accused for the offence under Section 302 IPCbefore the Court.7. To bring home the charges against the accused, theprosecution examined 17 witnesses, marked 24 exhibits andproduced 1 material object.8. When the accused was questioned under Section 313 ofthe Criminal Procedure Code as to the incriminating materialsappearing against him, he denied them as false. No witness wasexamined and no document was marked on the side of the defence.However, the learned trial Judge found the accused guilty,convicted and sentenced him for the offence as stated above.9. Learned counsel for the appellant/accused hasquestioned the veracity of the judgment mainly on the followinggrounds:(i) The dying declaration, Ex.P-8 recorded by theJudicial Magistrate, Gudiyatham-P.W.9 cannot be relied upon, asthere was sufficient time in between for tutoring the deceasedby P.W.1, who happened to accompany the deceased right from theplace of occurrence till the dying declaration was recorded. https://hcservices.ecourts.gov.in/hcservices/ (ii) There is enormous delay in sending the FirstInformation Report to the Court. When the complaint, Ex.P-1 wasregistered at 12.30 a.m., on 31.12.99, it reached the Courtonly on 2.1.2000 and there is no explanation for the delay.Such delay assumes importance in this case, as the prosecutionhas heavily relied upon the dying declaration, Ex.P-8, which istutored.10. So far as the first contention relating to thechallenge to the dying declaration is concerned, the learnedcounsel would elaborately refer to the deposition of P.Ws.9,10& 11 and the Exs.P-8, P-10 & P-11. He would also submit thatEx.P-13 is the intimation to the doctor, P.W.12 for conductingpost-mortem. Conspicuously, the name of the accused is missing.He would submit that P.W.1, who is none other than the sisterof the deceased, has tutored the deceased to falsely implicatethe accused, as her husband, P.W.2, was seen in a compromisingposition with the deceased just before the time of occurrence,as the accused and the deceased were in love, and when the saidcompromising position was seen by the accused, he uttered thatinstead of marrying the deceased, better he can die, and onlyin view of the above, the deceased had committed suicide.Therefore, P.W.1 wanted to save her husband, P.W.2, as he wasthe cause for the deceased to commit suicide. The learnedcounsel would further submit that though the prosecution hasrelied upon the dying declaration, as the accused had noopportunity to cross examine such dying declaration, it shouldbe looked cautiously and if the suggestions put forth on behalfof the accused coupled with the fact as to the possibility ofthe deceased being tutored by P.W.1 are taken intoconsideration, the dying declaration loses its credit and ifthe dying declaration is disbelieved, there is no otherevidence to prove the guilt of the accused. 11. On the other hand, Mr.P.Kumaresan, learned AdditionalPublic Prosecutor would submit that the deceased had informedP.W.1 only in the hospital implicating the accused for pouringkerosene on her when she resisted the attempt of molestationmade by the accused. The accident register, Ex.P-9 alsocontains the information said to have been given by thedeceased to the doctor implicating the accused. There isabsolutely no time for P.W.1 to tutor the deceased, as,admittedly, she was taken with severe burn injuries and shestarted talking only when she was attended by the doctor atPernampet Government Hospital at 5.00 p.m., on 30.12.99.Thereafter, a statement was recorded by P.W.10, another doctorbetween 5.00 p.m., and 5.15 p.m., under Ex.P-10, which alsospecifically indicates the implication of the accused by thedeceased. Further, the accident register, Ex.P-11 prepared at6.50 p.m., at Gudiyatham Government Hospital also contains thesame version of the deceased as deposed by P.W.11. Lastly, thelearned Additional Public Prosecutor would submit that thedying declaration, Ex.P-8 recorded by the Judicial Magistrate,Gudiyatham, P.W.9 between 7.12 p.m., and 7.45 p.m., on 30.12.99 https://hcservices.ecourts.gov.in/hcservices/ also implicates the accused. Thereafter, the complaint, Ex.P-1was given at 12.30 a.m., on 31.12.99 mentioning specificallythe name of the accused for the commission of the offence andthe said First Information Report reached the Court at 9.30a.m., on the same day. The learned Additional PublicProsecutor therefore submitted that there is absolutely noground to disbelieve the dying declaration given by thedeceased not only to the doctors, P.Ws.10 & 11, but also to theJudicial Magistrate, P.W.9. So far as the contention as to thedelay in the First Information Report is concerned, the learnedAdditional Public Prosecutor, by drawing our attention to therecords, submitted that the First Information Report reachedthe Judicial Magistrate, Gudiyatham at 9.30 a.m., on 31.12.99itself and not on 2.1.2000 as contended by the learned counselfor the appellant. The learned Additional Public Prosecutorwould also submit that P.W.7, the Village President, thoughturned hostile, has deposed that the accused presented himselfbefore him on the night of 30.12.99 and gave a confessionalstatement implicating himself in the offence. In addition tothe above, P.W.8, who was also present at the time when theaccused appeared before P.W.7, has stated that the accused gavea confession to P.W.7 and thereafter the accused was producedto the police at 8.00 a.m., on the next day. Hence the learnedAdditional Public Prosecutor submitted that the prosecution hasestablished its case beyond reasonable doubt and the judgmentof the learned trial Judge requires no interference. 12. We have considered the rival submissions with greatcare and caution. So far as the second contention as to thedelay in the First Information Report reaching the Court isconcerned, it is seen from the records that the complaint wasregistered at 12.30 a.m., on 31.12.99 and the same reached theCourt at 9.30 a.m., on the same day. Hence the contention ofthe learned counsel for appellant that the First InformationReport reached the Court only on 2.1.2000 is incorrect andtherefore cannot be accepted. Accordingly, the said contentionis rejected.13. So far as the challenge to the dying declaration isconcerned, the learned counsel vehemently relied upon thesuggestions put forth to P.Ws.1, 2 & 3 that when the accused,who developed love with the deceased, saw both P.W.2, thehusband of P.W.1, and the deceased in a compromising position,he left the place after uttering that he will die instead ofmarrying the deceased in view of her conduct. Once thedeceased came to know that the relationship with P.W.2 has cometo be known to the accused, she felt shy and therefore shecommitted suicide. The cause for her suicide is P.W.2 andtherefore P.W.1, in all probability, wanted to save her husbandfrom the allegations and therefore she has tutored the deceasedto falsely implicate the accused. The suggestion, in ourconsidered view, appears to be highly reasonable and serious innature. https://hcservices.ecourts.gov.in/hcservices/

14. As it suggests the false implication of the accusedonly to allow P.W.2 to escape from the clutches of law, we,therefore, propose to consider the same at length. Of course,P.W.1 and P.W.2 are the wife and husband. A mere suggestioncannot be proved and such suggestion should be considered withreference to the evidence in its entirety. It is the case ofP.W.1 that both herself and the deceased had gone to fetchwater and, as there was delay in fetching the water, she toldthe deceased to go to the house. After sometime, when P.W.1came to the house, she heard the shouting from the house andtherefore, she also shouted. On hearing the noise, P.W.15 cameto the scene of occurrence. P.W.15 is an independent witness.He broke opened the doors and saw the deceased ablaze andthereafter he brought the deceased outside the house and madeattempts to save her life. When P.W.15 was making attempts tobreak open the doors to save the life of the deceased, P.W.1saw the accused running away from the scene of occurrence. Itis argued by the learned counsel for appellant that when P.W.15was present as spoken to by the prosecution, in allprobability, he could have spoken about the running of theaccused from the scene of occurrence and strangely, he has notmentioned anything about the accused. Hence the version ofP.W.1 for having seen the accused running from the scene ofoccurrence is only to falsely implicate him. In our opinion,the said contention cannot be accepted, as, admittedly, P.W.15broke opened the doors and attempted to save the life of thedeceased and he could not have concentrated on the personspresent there or the accused running away from the scene place.In fact his evidence is quite natural in not specificallynaming the accused for having seen him in the scene ofoccurrence.15. The next circumstance is that when the deceased wastaken to the hospital, P.W.1 has specifically stated that thedeceased has not whispered anything as she was not in goodcondition at that time and she spoke only in the hospital. Ofcourse, for the first time, the deceased has spoken about theaccused pouring kerosene and setting her ablaze to P.W.1 in thehospital. The deceased has stated the same to P.W.10, thedoctor who recorded the statement, Ex.P-10 between 5.00 p.m.,and 5.15 p.m., on 30.12.99 and she has implicated the accusedin Ex.P-10. Even in the accident register, Ex.P-9 prepared at5.00 p.m., on 30.12.99, it has been mentioned that the deceasedinformed the doctor that the accused poured kerosene and sether ablaze in the house. We have no reason to discard Exs.P-9& P-10 as well as the evidence of P.W.10, who recorded Ex.P-10.P.W.10 has specifically deposed before the Court that she hasrecorded the statement of the deceased after ascertaining herstate of mind and the fitness to give such a statement. Nosuggestion was put to the doctor during cross examination as tothe possibility of any tutoring of the deceased at the instanceof P.W.1. This goes against the submission of the learnedcounsel for appellant. The further circumstance is that whenthe deceased was advised to be taken to Gudiyatham Government https://hcservices.ecourts.gov.in/hcservices/ Hospital, the doctor, P.W.11 prepared the accident register,Ex.P-11 at 6.50 p.m., on 30.12.99, wherein also it has beenrecorded that the deceased has informed the doctor about theaccused pouring kerosene and setting her on fire. Equally nosuggestion was also put to P.W.11 during cross examination asto any possibility of tutoring of the deceased by P.W.1. Inthe absence of any questions put to the witnesses as to thepossibility of tutoring the deceased by P.W.1, in our view, theappellant cannot be permitted to take such a stand in theappeal. 16. The next circumstance is the dying declaration, Ex.P-8 recorded by P.W.9, the Judicial Magistrate, Gudiyathambetween 7.12 p.m., and 7.45 p.m., on 30.12.99. We have perusedthe dying declaration with great caution. The Magistrate hasensured as to the condition and fitness of the deceased to givesuch a statement before and after the dying declaration wasrecorded. The fact that the deceased was in fit state of mindto give the dying declaration was also certified by P.W.11.For better appreciation of the dying declaration, Ex.P-8recorded by P.W.9, we reproduce the same as under:-"bgah; nf/yjh mg;gh bgah; gp/nf/fpUc&;zd; ml;u!;gy;yhyFg;gk; yjh taJ 14. 8tJ tFg;g[ muRcah;epiyg;gs;sp. vd;gthpd; kuz thf;FK:yk;/,d;W rha';fhyk; 19/05 Foahj;jk; muR bghJkUj;JtkidapypUe;J jfty; fpilj;jJ/ kUj;Jtkidf;F19/12 brd;nwd;/ thu;oy; mDkjpf;fg;gl;oUe;j nehahspiakUj;Jth; milahsk; fhl;odhu; nehahsp Raepidt[lDk;thf;FK:yk; bfhLf;f Toa kdepiyapYk; ,Ug;gjhfkUj;Jth; rhd;wspj;jhh;/thf;FK:yk; Muk;gpj;j neuk; 19/13 c';f bgah;vd;d>yjhtaJ vd;d> ve;j standard gof;fpwha;>taJ 15 8th standardehd; te;J xU kh$p!;nul;k;thf;FK:yk; jhp';fsh>vd;dJ. k;. k;,e;j jPf;fhak; vg;go Vw;gl;Lr;R>v';f mf;fh jz;zPf;F bjUKid nghndhk; mJt[k;vd;Tl te;jJ m";rht[ eilapy; jz;zP epd;Wr;R/ ehd;xU jpz;izapy; cl;fhu;e;njd; mf;fh rhg;gpwJf;F vd;idmDg;gpr;R mg;g[wk; ehd; tPl;Lf;Fnghap fjt[jpwe;J nrhWnghl;Ll;L $d;dyhz;l nghndd;/ ehnfe;jpud; te;jhd;te;J vd; khh;g[ Jzpia gpor;R ,Gj;jhd; mg;g[wk; vd;d https://hcservices.ecourts.gov.in/hcservices/ ele;jJ>ehd; ePf;fp js;spl;nld;jhH;ghs; nghl;Lfpndd;gpwF>mtd; $d;diy bjhwe;jhd;ehnfe;jpud; ahU>rhuhak; tpf;fwtd;mg;g[wk; vd;dk;kh ele;jpr;R>fpUc&;zhapy; $d;dy; tHpa Cj;jpdhd; gj;jbtr;rpl;lhd;ahh; bfhz;L te;J M!;gj;jphpapy; nrh;j;jh>Rrpyh vd; mf;fhehnfe;jpud; ,Jf;F Ke;jp bjhpa[kh>vd; tPl;Lf;F beiwa tUthd; ehnfe;jpud; vd;idbfLj;jhd; 29/10/99 ,e;j jPf;fhak; rk;gtk; vj;jidkzpf;F ele;Jr;R>njhuhakh 3/30 kzpf;FCh; vJkh>gy;yhyFg;gk;ele;jJ mnj Cu;ny nehahspapd; clk;gpy;jPf;fha';fs; nehahsp brhy;y brhy;y vd;dhy; vGjg;gl;Lnehahspf;F goj;Jf;fhl;o rhpbad bjhptpj;J ,lJ ifbgUtpuy; nuif ,l;lhh;/fPuy;-?thf;FK:yk; Koe;j neuk; 19/24xk;-?30/12/99, Time 19.10 to 19.25The patient conscious and fit to give dyingdeclaration. The dying declaration is recorded inmy presence and to my hearing while recording thedying declaration neither the police nor therelation were present.Sd/-(Dr.S.Amuthamani)rhd;Wfs;/?1) nehahsp Raepidt[lDk; thf;FK:yk; bfhLf;Fk;kdepiyapy; ,Ue;jhh;/2) mt;thnw kUj;JtUk; rhd;wspj;Js;shh;/3) thf;FK:yk; kUj;Jth; Kd;dpiyapy; mtUf;Fnfl;FkhW gjpt[ bra;ag;gl;lJ/4) thf;FK:yk; gjpt[ bra;jbghGJ nehahspapd;cwtpdnuh nghyPrhnuh mUfpy; ,y;iy/5) nehahsp jk;kpr;irahf thf;FK:yk; je;jhh;/19/35f;F rhg;gpl;L jpUk;g miHj;J ehd; office https://hcservices.ecourts.gov.in/hcservices/ sealf;fhf btapl; gz;zpapUe;njd;/gr;irf;Fg;gj;J fPnH fhzhW(>) ehnfe;jpud; ,l;Lf;fpl;L nghdhd; ehd; mGJfpl;nl nghndd;/ me;jgf;fk; ehy";R ngh; $%!; For;rpfpl;L ,Ue;jh';f mt';fmf;fh khkh fpl;l brhd;ndd;/ bfLj;Jl;lhd; mg;g tPl;Lyahu;fpl;la[k; brhy;yypah>,y;yehnfe;jpud; ahh;fpl;la[k; brhy;y ntzhKDbrhd;dhd;brhd;dh eP J}f;F fapW jhd; epf;fDk; brhd;dhd;/Koe;j neuk; 19/45fPuy;-?Nehahsp brhy;y brhy;y vd;dhy; vGjg;gl;Lnehahspf;F goj;Jf;fhl;l rupbad ,lJ if bgUtpuy;nuifapl;lhh;/xk;-?30.12.99, Time 19.35 to 19.45The patient is conscious and fit to givedying declaration. The dying declaration isrecorded in my presence and to my hearing whilerecording the dying declaration neither the policenor the relation were present.Sd/-(Dr.S.Amuthamani)rhd;Wfs;/1) nehahsp Raepidt[lDk;. thf;FK:yk; bfhLf;Fk;kdepiyapy; ,Ue;jhh;/2) mt;thnw kUj;JtUk; rhd;wspj;Js;shh;/3) thf;FK:yk; kUj;Jth; Kd;dpiyapy; mtUf;Fnfl;FkhW gjpt[ bra;ag;gl;lJ/4) thf;FK:yk; gjpt[ bra;jbghGJ nehahspapd;cwtpdnuh. NghyPrhnuh mUfpy; ,y;iy/5) nehahsp jk;kpr;irahf thf;FK:yk; bfhLj;jhh;/xk;-?This patient Latha was referred for G/HPernambut on 30.12.99 at 6.50 pm.Sd/-17. From the above sequence of evidence, we have noreason whatsoever to hold that the deceased was tutored byP.W.1. Of course, P.W.1 was present right from the time thedeceased was taken to the hospital till the dying declarationwas recorded by P.W.9. Learned counsel for the appellant hasrelied upon the judgment of the Apex Court in Rasheed Beg v.State of Madhya Pradesh (AIR 1974 SC 332) and submitted thatwhen there is a possibility of the deceased being tutored toname the accused, the dying declaration cannot be believed. https://hcservices.ecourts.gov.in/hcservices/

18. We have carefully considered the said submission.The Apex Court has not held that even if there is a possibilityof tutoring, the dying declaration should be disbelieved. TheApex Court has only cautioned that in that circumstance, tobelieve the dying declaration, the Court must see theavailability of corroborative materials. From the judgment, wecould see that the Apex Court has in fact laid down the lawthat even when there is a possibility of tutoring the deceased,such dying declaration can be believed in the event there aresufficient corroborative materials. As we have elaboratelynarrated the sequence of events right from the time when thedeceased was taken to the hospital and till the dyingdeclaration, Ex.P-8 was recorded by P.W.9, we find enoughcorroborative materials to show that the dying declarationcould be believed and it was not given at the instance of P.W.1by way of tutoring. We are forced to arrive at the saidconclusion for yet another reason namely, that there isabsolutely no suggestion put forth either to the doctors whohave prepared the accident registers namely, Exs.P-9 and P-11or the statement, Ex.P-10 recorded by P.W.10 or the JudicialMagistrate, P.W.9 who recorded the dying declaration, Ex.P-8during cross examination. In the absence of such stand takenby the appellant before the trial Court, it will not lie in themouth of the appellant to canvass the said point for the firsttime before this Court and if this Court entertains such aplea, it would result in failure to give any opportunity to thewitnesses to rebut such suggestions. Learned counsel for theappellant also relied upon yet another judgment of this Courtin Rajendran and another v. State represented by Inspector ofPolice, Vrinchipuram Police Station, Vellore District (2003)M.L.J.(Crl.) 1037 as to the possibility of tutoring thedeceased when her dying declaration was recorded in thepresence of the relatives. That case also can be distinguishedhaving regard to the facts of the present case. In that case,initially the deceased had stated to the doctor who saw thedeceased for the first time that she sustained burn injuriesaccidentally while she was cooking food in the kitchen.Strangely, she changed her mind and gave a dying declarationbefore the Judicial Magistrate implicating A-1 and A-2, whohappened to be her husband and mother-in-law respectively. Inthat context, this Court had come to the conclusion that therelatives were present in between the period along with thedeceased and hence there was a possibility of tutoring thedeceased. However, on the facts of this case, right from thefirst accident register, Ex.P-9 which was recorded at 5.00p.m., on 30.12.99 till the dying declaration Ex.P-8 wasrecorded by P.W.9 between 7.12 p.m., and 7.45 p.m., on the sameday, the deceased had been consistent in implicating theaccused for the commission of the offence. Hence the judgmentsrelied upon by the learned counsel for the appellant are of noassistance to the facts of the present case. 19. Further, even on facts, P.W.1 has specifically statedthat for the first time the deceased had opened her mouth and https://hcservices.ecourts.gov.in/hcservices/ deposed only in the hospital. Immediately at that time, thedoctor, P.W.10 who prepared the accident register, Ex.P-9 at5.00 p.m., came there and prepared the accident register.Therefore, in our opinion, there was no occasion for P.W.1 totutor the deceased within that short period when the deceasedwas taken to the hospital and was seen by the doctor firstly.Unless we have enough material to hold that there will be apossibility of tutoring, mere presence of P.W.1 along with thedeceased when the deceased was not in a state of mind to speak,we are unable to come to the conclusion that there could havebeen a possibility of tutoring the deceased. Hence thecontention that the dying declaration should be disbelievedcannot be accepted. 20. As we have rejected all the contentions raised by thelearned counsel for appellant, the appeal must necessarilyfail. Accordingly, the criminal appeal is dismissed confirmingthe judgment of the Court below. SsSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Addl. District & Sessions Judge (Fast Track Court), Vellore2. -do- thru’ the Principal Sessions Judge, Vellore3. The Superintendent, Central Prison, Vellore4. The Public Prosecutor, High Court, Madras5. The Inspector of Police, Pernampet Police Station, Gudiyatham Taluk, Vellore District.6. The District Collector, Vellore7. The Director General of Police, Chennai+ 1 cc to Mr. A. S. Chakarawarthi, Advocate SR No. 1946Crl.A.No.285 of 2007ASM(CO)SR/29.1.2008