Velu v. State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.8.2009CORAM:THE HONOURABLE MR. JUSTICE C.NAGAPPANAND THE HONOURABLE MR. JUSTICE M.JEYAPAULCriminal Appeal No.95 of 2009Velu .. Appellant/Accused Vs.State of Tamil Nadu, rep. by Inspector of Police,Marandahalli Police StationDharmapuri District.(Crime No.104/2007) .. Respondent/ComplainantPrayer : Appeal against the Judgment, dated 9.1.2009, passed inS.C.No.46 of 2008 on the file of Principal Sessions Judge,Dharmapuri.* * *For Appellant :: Mr. R.SelvakumarFor Respondent :: Mr. Hassan Mohamed Jinnah Addl. Public ProsecutorJ U D G M E N T (The Judgment of the Court was delivered by M.JEYAPAUL, J.) Appellant/Accused Velu was convicted for offence underSection 302 of Indian Penal Code and was sentenced toLife Imprisonment and to pay a fine of Rs.2000/-, in default, toundergo Rigorous imprisonment for six months. Aggrieved by theaforesaid verdict passed by the Trial Court as against theappellant/accused, the present appeal has been preferred.2. On the side of the prosecution, eleven witnesses wereexamined and thirteen documents and six material objects weremarked. On the side of defence, Dr.Ramalingam was examined as https://hcservices.ecourts.gov.in/hcservices/ DW.1 and copy of the Accident Register issued by DW.1 to thedeceased Venkattamma was marked as Ex.D1. 3. The sum and substance of the case of the prosecution,as unfolded by the witnesses examined on their side, reads asfollows:- Natarajan-PW.1 is none other than the son of thedeceased Venkattamma alias Panjali. The deceased Venkattammaalias Panjali was residing at Siriyampatti village. She had agrocery shop adjoining her house. Natarajan-PW.1, having received a communication about theburn injuries sustained by his mother at about 9 pm on 21.3.2007,rushed from Bangalore straight to the Government Hospital,Dharmapuri and reached at about 3.30 am on 22.3.2007. Venkattammawas in a conscious state of mind. PW.1 enquired her about theincident. She informed him that at about 8 pm on the previousnight, the accused Velu, who having perturbed by the refusal of thedeceased Venkattamma to part with any money, poured kerosene on herand set fire to her. Thereafter, PW.1 proceeded to Bangalore tobring his wife and children. Dr.Pandurangan-PW.7, who was serving in the GovernmentHospital, Dharmapuri, despatched a communication-Ex.P4 to thelearned Judicial Magistrate, Dharmapuri Mr.K.Karunanidhi-PW.6 fortaking steps to record dying declaration. On receipt of suchinformation, PW.6 rushed to the Government Hospital, Dharmapuri at8.30 am on 22.3.2007. The Judicial Magistrate, Dharmapuri Mr.K.Karunanidhi-PW.6having located the deceased Venkattamma with burn injuries in theGovernment Hospital, Dharmapuri with the assistance ofDr.Pandurangan-PW.7, ascertained that the deceased Venkattamma wasin a conscious state of mind and was fit to give dying declaration.Dr.Pandurangan-PW.7 certified the conscious and fit state of mind ofVenkattamma even before the dying declaration was recorded by PW.6.The Judicial Magistrate-PW.6 also put certain questions to the saidVenkattamma and having ascertained that she was in a conscious andfit state of mind, started recording the dying declaration. Thesaid Venkattamma declared that it was only the accused Velu, whocame in an inebriated state, poured kerosene and set fire to her.Dr.Pandurangan-PW.7 certified immediately after recording of thedying declaration by Judicial Magistrate-PW.6 that Venkattamma wasin a conscious and fit state of mind throughout the proceedingsconducted by PW.6. The proceedings of Dying Declaration recorded https://hcservices.ecourts.gov.in/hcservices/ by the Judicial Magistrate-PW.6 was marked as Ex.P5. Natarajan-PW.1 came down from Bangalore alongwith his family members and found that his mother Venkattamma haspassed away. He went to Marandahally Police Station at about 5pm on 23.3.2007 and submitted a Complaint-Ex.P1 to the HeadConstable S.Ramuru-PW.10 who registered a case in Crime No.104/2007under Section 302 IPC. He prepared First Information Report-Ex.P8and despatched the original to the Judicial Magistrate, Palacode andsubmitted the copies thereof to the higher officials concerned. TheInspector of Police Mr.S.Venugopal-PW.11, having received the copyof First Information Report registered by PW.10, rushed to thescene of occurrence at about 5.30 pm on 23.3.2007. He, havinginspected the scene of occurrence, prepared Observation mahazar-Ex.P2 in the presence of PW.5 Panniappan and another. He alsoprepared Rough Sketch-Ex.P9 reflecting the scene of occurrence.He seized M.Os.1 to 6 from the scene of occurrence. He alsoexamined the witnesses who were present at the scene of occurrenceand recorded their statements. Kullavedi-PW.2, who was at the temple located close by theshop of the deceased Venkattamma, saw Venkattamma emerging out ofher house with burn injuries. Subramani-PW.3 also made arrangementalong with PW.2 to take Venkattamma to the hospital for treatment. On 24.3.2007, Inspector Mr.S.Venugopal-PW.11 proceeded tothe Government Hospital, Dharmapuri and held inquest in the presenceof panchayatars and prepared Inquest Report-Ex.P10. He sentRequisition-Ex.P7 to Dr.Pandurangan-PW.7 for conducting post-mortem on the dead body of Venkattamma. Dr.Pandurangan-PW.7 having received the requisition fromPW.11 commenced Post-mortem examination at about 12 noon on24.3.2007 on the dead body of Venkattamma and found the following: "Internal Examination:- Hyoid Bone intact. Bothsides ribs normal. Lungs: Weight normalon cut section congested. Heart: Weight normalon cut section congested. Chambers full.Carbon particles seen in both Trachea and lungs.Liver: Weight normal on cut section congested.Spleen: Weight normal on cut section congested.Stomach: Contains water about 100 ml. Intestines:Distended with air and fecal matter. Bladder :Empty. Kidney: Both kidney weight normal on C/Scongested. Uterus: Weight normal on C/Scongested and empty. Skull: Normal. https://hcservices.ecourts.gov.in/hcservices/ No fracture was seen. Base of the skull:Normal. Brain: Weight normal on C/S congested."He opined in the Post-mortem Certificate-Ex.P6 that the deceasedappeared to have died about 24 hours to 30 hours prior to Autopsy onaccount of Burns and Septicemic shock. Inspector Mr.S.Venugopal-PW.11 submitted a Requisition-Ex.P11 to the learned Judicial Magistrate, Palacode to despatch theMaterial Objects recovered and submitted to the Court for chemicalexamination. The learned Judicial Magistrate despatched theMaterial Objects under Covering letter-Ex.P12. On 24.4.2007, accused Velu was arrested and wasremanded to judicial custody. Inspector Mr.S.Venugopal-PW.11completed the investigation and filed final report as against theaccused under Section 302 IPC on 2.6.2007. 4. The incriminating circumstances spoken to by theaforesaid witnesses were put to the accused Velu underSection 313 Cr.P.C in the form of Questionnaire. The accused Velucame out with a total denial of his involvement in the case ofmurder. 5. On the side of defence, Dr.Ramalingam-DW.1, who admittedthe injured Venkattamma to hospital for treatment, was examined. Hehas deposed that the injured Venkattamma, who was brought by herrelative Santhi, informed him that at about 8 pm on 21.3.2007 shesustained burn injuries at her residence. He found burn injurieson the person of Venkattamma all over her body above her knees.He issued copy of the Accident Register-Ex.D1, having found that theinjured Venkattamma sustained 90% burn injuries. 6. The Trial Court, having completed trial, placed relianceon the Dying Declaration-Ex.P5 recorded by the learned JudicialMagistrate-PW.6 in the background of the medical evidence availableon record, has returned a verdict of conviction and the accused Veluwas sentenced to life imprisonment. https://hcservices.ecourts.gov.in/hcservices/

7. Mr. R.Selvakumar, learned counsel appearing for theappellant/accused, submits that Ex.P1 Complaint lodged by P.W.1Natarajan does not speak about the dying declaration alleged to havebeen given by the deceased Venkatamma. Referring to theproceedings of Ex.P5 Dying Declaration it is submitted that it hasbeen tailored and modulated. Referring to the evidence of theInvestigating Officer, the learned counsel for the appellant wouldsubmit that the Investigating Officer never mentioned about thedying declaration alleged to have been recorded by P.W.6 JudicialMagistrate Mr.Karunakaran; the list of witnesses annexed along withthe Final Report does not refer to the learned Judicial Magistrateas one of the witnesses proposed to be examined on the side of theprosecution; the prosecution has wantonly not examined D.W.1Dr. Ramalingam, who admitted the injured Venkatamma to hospital;though the prosecution witnesses would state that P.W.2 Kullavedi,P.W.3 Subramani and yet another person, proceeded to GovernmentHospital, Dharmapuri, for admitting the injured Venkatamma, D.W.1,Dr. Ramalingam has categorically deposed that it was Shanthi, whobrought the injured Venkatamma for admission to the hospital;and only after about 7 hrs. delay, Venkatamma was admitted tohospital. It is his further submission that the First InformationReport was registered after almost two days delay and no plausibleexplanation is forthcoming from the side of the prosecution in thisregard; there is no corroborating material to vouchsafe the dyingdeclaration recorded by P.W.6 Judicial Magistrate Mr.Karunakaran;P.W.7 Dr. Pandurangan never referred to during the course ofexamination the certificate issued by him as to the conscious andfit state of mind of the injured Venkatamma. He would furthersubmit that the prosecution has come out with two parallel versions,one through the dying declaration and another through the evidenceof other witnesses; there is also some contradiction with respectto the time of occurrence; and the deceased Venkatamma would statethat the occurrence took place at 6.00 p.m., but others would statethat the occurrence took place at 8.00 p.m. on the fateful day. Itis his vehement submission that the Court had not framed anyquestion based on the incriminating circumstances spoken to by thewitnesses to squarely fix accused Velu for the offence of murder andwhen such a question was not framed and put to the accused, thequestioning under Section 313 CrPC put to accused Velu is not validin the eye of law. The last submission made the learned counsel forthe appellant/accused is that the person who sustained 90% burninjuries could not have spoken clearly that it was only the accusedwho committed the offence.8. Mr. Hassan Mohamed Jinnah, learned Additional PublicProsecutor, would submit that no motive was attributed forimplicating accused Velu in this case; the evidence of P.W.1Natarajan lends corroboration to the dying declaration given by the https://hcservices.ecourts.gov.in/hcservices/ deceased Venkatamma; there is no inconsistency found in the dyingdeclaration; it has been recorded by P.W.6 Judicial MagistrateMr.Karunakaran after complying with all the required formalities andthere is no reason to reject the dying declaration recorded by P.W.6Judicial Magistrate Mr.Karunakaran. Therefore, the learnedAdditional Public Prosecutor would submit that there is no warrantfor interfering with the well merited judgment of the trial Court.9 There is no eye witness to the occurrence. The entirecase of the prosecution rests on the dying declaration recorded byP.W.6 Judicial Magistrate Mr.Karunakaran. If the said dyingdeclaration inspires confidence, there is no embargo for the Courtto rely upon the dying declaration. If the dying declaration isfound to be true and it is not influenced by the close relatives ofthe sinking injured Venkatamma, there is no bar for the Court torely upon the dying declaration and render a verdict of conviction.10. Let us now referred to the evidence of P.W.6 JudicialMagistrate Mr.Karunakaran in the background of the proceedings ofthe dying declaration marked as Ex.P5. It is found that P.W.6Judicial Magistrate Mr.Karunakaran having ascertained, even beforehe embarked upon the process of recording of dying declaration,the conscious and fit state of mind of the injured Venkatamma fromP.W.7 Dr. Pandurangan, who was on duty at that time. P.W.6Judicial Magistrate Mr.Karunakaran also chose to put certainquestions to satisfy himself as to the conscious and fit state ofmind of the injured Venkatamma. Only after his satisfaction, it isfound that he started recording the dying declaration of Venkatamma.Venkatamma had quite categorically stated before P.W.6 JudicialMagistrate Mr.Karunakaran that it was only the accused Velu whoauthored the crime. She had reiterated the role of accused Velu inthe dying declaration given by her. P.W.6 Judicial MagistrateMr.Karunakaran has ascertained, whether she was conscious and in afit state of mind during the entire course of recording the dyingdeclaration, from P.W.7 Dr. Pandurangan. P.W.7 Dr. Panduranganalso certified after completion of dying declaration that theinjured Venkatamma was in a fit and conscious state of mindthroughout the proceedings.11. It is true that P.W.7 Dr. Pandurangan did not referto the Certificate given by him as to the conscious and fit state ofmind of the victim Venkatamma. It may be a lapse on the part ofthe prosecuting agency in not eliciting from P.W.7 Dr. Panduranganas to the role he had played in the matter of recording the dyingdeclaration. But that will not definitely go to the root of thecase inasmuch as P.W.6 Judicial Magistrate Mr.Karunakaran has https://hcservices.ecourts.gov.in/hcservices/ performed his official duty while recording the dying declaration.12. It is a settled proposition of law that where thelearned Judicial Magistrate, who records the dying declaration,deposes before the Court that the deceased was in a fit andconscious state, lack of certification, if any, by the doctor as tothe fitness of mind of the declarant will not invalidate the dyingdeclaration recorded by the learned Judicial Magistrate. Theessential thing is that the person recording the dying declarationmust be satisfied that the deceased was in a fit state of mind. Ithas been proved before the trial Court that the learned JudicialMagistrate only after satisfying himself that the declarant was in aconscious and fit state of mind, recorded the dying declaration. 13. The learned counsel for the appellant/accusedreferred to the observation made by the Supreme Court in SMT.LAXMIV.. OM PRAKASH AND OTHERS [2001 CRI. L.J. 3302]. That was a casewhere an Assistant Sub-Inspector of Police came out with a versionthat the deceased gave the dying declaration. It appears that theAssistant Sub-Inspector in that case did not refer to the dyingdeclaration alleged to have been given by the deceased to him to theInvestigation Officer, who investigated the case. The dyingdeclaration made by the deceased to the Assistant Sub-Inspector ofPolice also did not find a place in First Information Report lodgedsubsequently by the Investigation Officer. Under suchcircumstances, the Supreme Court observed that it was not safe torely upon the only material in the form of dying declarationalleged to have been given by the deceased to the Assistant Sub-Inspector of Police and record conviction.14. The learned counsel for the appellant also referred tothe decision in SHEIKH MEHEBOOB ALIAS HETAK AND OTHERS V.. STATEOF MAHARASHTRA [AIR 2005 SC 1805]. That was a case where therewere two parallel versions of the prosecution as to the cause ofdeath of the victim, one version being that the victim sustained'accidental burns' and yet another version being that it was a'self-inflicted burns'. The dying declaration itself would suggestthat the victim poured kerosene on himself and set fire to him.Therefore, the Supreme Court observed that the facts andcircumstances projected by the prosecution raised serious doubts asto the credibility of the dying declaration alleged to have beengiven by the victim. 15. The learned counsel for the appellant referred to yet https://hcservices.ecourts.gov.in/hcservices/ another decision in CHACKO V.. STATE OF KERALA [(2003) 1 SCC112]. That was a case where the contents of the dying declarationappeared to have been arranged in such a way to accommodate thelimited space available above the thumb impression of the deceased.Therefore, the Supreme Court entertained doubt about the genuinenessof the dying declaration given by the victim. In the instant case,the prosecution has not come out with two parallel versions aboutthe cause of death. It is true that D.W.1 Dr. Ramalingam,who in fact admitted the victim to the hospital, has spoken to thefact that the victim informed him that she sustained burn injuriesin her house. Such a first version of the victim before the doctordoes not go to the root of the case. The information passed on toD.W.1 Dr. Ramalingam does not say that she sustained 'self-inflicted' burn injuries. Of course, he has not enquired about themanner in which she sustained injuries. This is not a case whereany dying declaration given to a police officer is solely reliedupon for the purpose of recording conviction. Here is the casewhere the learned Judicial Magistrate has performed his officialduty in recording the dying declaration after complying with all therequired formalities. 16. On a careful perusal of the dying declaration, we findthat the learned Judicial Magistrate has not chosen to arrange thesentences in order to accommodate the space above the thumbimpression of the deceased. Of course, one thumb impression on yetanother thumb impression is found in the dying declaration given bythe deceased. The learned Judicial Magistrate has come out with aplausible explanation with regard to the over-lapping thumbimpression that he had to obtain thumb impression of the deceasedagain as the first thumb impression put by her first was notlegible. In view of the above facts and circumstances of the case,the Court finds that the aforesaid decisions submitted by thelearned counsel for the appellant/accused do not apply to the caseon hand. 17. As rightly pointed by the learned counsel for theappellant/accused, there is almost delay of about two days inlodging First Information Report. P.W.1 Natarajan has categoricallydeposed that immediately after seeing his mother Venkatamma in theGovernment Hospital, Dharmapuri, he had to rush back to Bangalore tobring his wife and children, but, by that time the injuredVenkatamma had already passed away. The injured had sustained 90%of burn injuries. It is quite natural for the relatives to givebest of treatment to the injured who is sinking without minding toset the law in motion. It is found that the injured Venkatamma wasrushed to the hospital during mid of night for admission to theGovernment Hospital, Dharmapuri, for treatment. The next day https://hcservices.ecourts.gov.in/hcservices/ itself she had given the dying declaration to P.W.6 JudicialMagistrate Mr.Karunakaran. As D.W.1 Dr. Ramalingam had notspecifically recorded as to the cause of injury, the policeauthorities had no occasion to seize of the crime. It is only P.W.1Natarajan after coming down from Bangalore and also after coming toknow that his mother had passed away, went to the police station andlodged the complaint, of course, belatedly. The aforesaid facts andcircumstance would go to show that there was no scheme on the partof the Investigating Agency to rope in a person, who was notinvolved in this case. The aforesaid delay in the above facts andcircumstances of the case does not affect the case of theprosecution.18. Coming to the proceedings under Section 313 CrPC,recorded by the learned Sessions Judge, it is submitted that properquestion was not put to the accused based on the incriminatingcircumstances spoken to by the witnesses. To support hissubmission, the learned counsel for the appellant referred to adecision reported in SHAIKH MAQSOOD V.. STATE OF MAHARASHTRA[(2009) 6 SCC 583]. That was a case where the incriminatingcircumstance that it was only the accused who authored the crime wasspoken to by witnesses but quite unfortunately the proceedings underSection 313 CrPC was quite silent about such an incriminatingcircumstance spoken to by the witnesses. In view of the above, theSupreme Court has observed that the improper proceedings conductedunder S.313 CrPC inasmuch no question was asked even remotelyregarding existence of any material to hold the appellant guilty wasfatal. The Supreme Court has observed thus -"14. The word 'generally' in sub-section (1)(b) does not limit the nature of the questioningto one or more questions of a general naturerelating to the case, but it means that thequestion should relate to the whole casegenerally and should also be limited to anyparticular part or parts of it. The questionmust be framed in such a way as to enable toaccused to know what he is to explain, what arethe circumstances which are against him and forwhich an explanation is needed. The whole objectof the section is to afford the accused a fairand proper opportunity of explainingcircumstances which appear against him and thatthe questions must be fair and must be couched ina form which an ignorant or illiterate personwill be able to appreciate and understand. Aconviction based on the accused's failure toexplain what he was never asked to explain is bad https://hcservices.ecourts.gov.in/hcservices/ in law. The whole object of enacting Section 313of the Code was that the attention of the accusedshould be drawn to the specific points in thecharge and in the evidence on which theprosecution claims that the case is made outagainst the accused so that he may be able togive such explanation as he desires to give."Each and every incriminating circumstance spoken to by the witnesseswill have to be distinctly put to the accused inviting him to comeout with explanation for such incriminating circumstances. Ifthe accused is an ignorant or illiterate person, the questionnaireshould be couched in such a way that such a person could appreciateand understand the incriminating piece of evidence spoken to by thewitnesses. The scope of S.313 CrPC is only to draw, specifically,the attention of the accused to the clinching materials available onrecord for the charge framed as against him. In the case on hand,it is found that the Sessions Judge, having culled out theincriminating circumstances found in the dying declaration recordedby P.W.6 Judicial Magistrate Mr.Karunakaran, properly brought tothe notice of the accused eliciting his response. Therefore, theabove ratio does not apply to the facts and circumstance of thiscase.19. The learned counsel for the appellant cites yet anotherdecision in BIMLA DEVI AND ANOTHER V.. STATE OF JAMMU AND KASHMIR[(2009) 6 SCC 629]. That was a case where no question was put tothe Accused while examining under S.313 CrPC relating to the chargeof demand of dowry and abetment of suicide. That being so, theSupreme Court observed that the conviction for the charge underSection 498-A IPC for dowry death and the charge under Section 306IPC for abetment of suicide would not stand legal scrutiny. Asalready pointed by this Court, in the case on hand, the learnedtrial Judge has put to the accused the incriminating circumstancesavailable on record and drawn his attention thereto. 20. He also referred to yet another decision in RANVIRYADAV V.. STATE OF BIHAR [(2009) 6 SCC 595]. That was also acase where the appellant/accused was not brought to his notice theincriminating materials available on record. Therefore, theaforesaid decision also will not apply to the case on hand.21. We are unable to appreciate the submission made thelearned counsel for the appellant that the trial Judge on his ownshould have separately couched a question based on the incriminatingmaterials available on record and put to the accused inviting his https://hcservices.ecourts.gov.in/hcservices/ response thereto. The trial Judge is supposed to refer only theincriminating circumstances spoken to by the witnesses and draw theattention of the accused to explain to those circumstances. Thetrial Judge is not supposed to frame any independent question underSection 313 of Criminal Procedure Code.22. P.W.1 Natarajan, who is the son of the victim, hasalso come out with reliable version that his mother disclosed himthat it was only the accused who poured kerosene and set fire onher. Such version which amounts to oral declaration lendscorroboration to the judicial dying declaration given by the victimto P.W.6 Judicial Magistrate Mr.Karunakaran. The court finds thatthe dying declaration of the deceased before P.W.6 JudicialMagistrate Mr.Karunakaran and also the oral declaration before hisson P.W.1 Natarajan inspires confidence. Only in a case where thedying declaration suffers from infirmities, the Court may look forcorroboration as a rule of prudence. Here, in the instant case, thelearned Judicial Magistrate after complying with all therequirements has recorded the dying declaration. It does not sufferfrom any infirmity. The same is also corroborated by evidence ofP.W.1 Natarajan. Therefore in the considered opinion of the Courtthat the dying declaration does not require any furthercorroboration from any other source. The trial Court has rightlyplaced full reliance on the dying declaration given by the deceasedand recorded conviction as against the accused.23. In view of the above, we find that there is no warrantfor interference with the well merited judgment of the trial Court.We find that there is no merit in the appeal preferred by theaccused as against the judgment of conviction recorded and sentenceimposed by the trial Court. Therefore, the judgment of the trialCourt stands confirmed and the appeal is dismissed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarvks/pb https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal Disit. & Sessions Judge, Dharmapuri.2. The Superintendent of Prison, Central Prison, Vellore.3. The Inspector of Police, Marandahalli Police Station, Dharmapuri.4. The Director General of Police, Mylapore, chennai 4.5. The District Collector, Dharmapuri.6. The Public Prosecutor, High Court, Madras. 7. The Section Officer, Criminal Section, High Court, Madras 104.+1cc to Mr.R.Selvakumar, Advocate Sr 37224NG(CO)km/1.9.Crl.A.No. 95 of 2009