Ameerjohn v. State rep. by Inspector of Police,B-10, L&O PoliceCoimbatore City

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.10.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL NO.350 OF 2008Ameerjohn ..Appellant/AccusedVs.State rep. byInspector of Police,B-10, L&O PoliceCoimbatore City..RespondentThis Criminal Appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Additional District SessionsJudge, Fast Track Court No.I, Coimbatore, made in S.C.No.39 of 2007dated 03.09.2007.For Appellant : Mr.P. VenkatasubramanianFor Respondent : Mr.Babu Muthu Meeran, APPJUDGMENT(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.)This appeal is directed against the judgment of convictionpassed by the Additional District Sessions Judge, Fast Track CourtNo.I, Coimbaore made in S.C.No.39/2007 convicting and sentencing theaccused u/s. 302 I.P.C to undergo life imprisonment along with a fineof Rs.1000/- and in default to undergo simple imprisonment for threemonths.2. The facts which are necessary for the disposal of the appealare as follows:The victim was the wife of the accused. Accused used to drinkalcohol and had quarrel with his wife Shakila Banu. On 20.06.2006, atabout 01.00 a.m the accused, suspecting the fidelity of his wife hadpoured kerosene on the person of his wife and lit fire after accusingher fidelity. Due to the said liting of fire by the accused, the https://hcservices.ecourts.gov.in/hcservices/ victim Shakila Banu had sustained serious burn injuries on her bodyand she was immediately admitted to the Government Hospital,Coimbatore. There, she succumbed to the burn injuries sustained byher, on 26.06.2006 by 10.40 a.m and thereby the accused becamepunishable u/s. 302 I.P.C. 3. The said case was registered by the Selvapuram Police inCr.588/2006 and after completion of the investigation charge sheethas been filed and the learned Judicial Magistrate had committed thecase to the Principal Sessions Judge who took the case on file inS.C.No.39/2007 and made over the said case to Fast Track Court No.I,Coimbatore.4. The prosecution examined the P.Ws.1 to P.W.20 and producedEx.P.1 to ExP.21 and M.Os.1 to M.O.9 in order to substantiate itscase. The accused was examined u/s. 313 Cr.P.C the incriminatingcircumstances spoken against the accused. The accused had deniedthe evidence adduced by the prosecution as false and had submitted astatement in answer to the same. He also elected himself to beexamined as D.W.1 in support of his case.5. The Trial court had appraised the evidence adduced on theside of the prosecution and defence and ended the case in convictingthe accused u/s. 302 I.P.C and imposed a sentence of lifeimprisonment and a fine of Rs.1000/- and in default to undergo 3months simple imprisonment.6. The case of the prosecution as let in evidence before thelower court would be thus:(a) P.W.1, P.W.4 and P.W.5 are the sisters of the deceasedShakila Banu. P.W.2 and P.W.3 are the daughters of Shakila Banu andthe accused. P.W.6 is the son in law of P.W.4. P.W.7 and P.W.9 arethe tenants of the deceased and accused. P.W.8 is the elder sister'sdaughter of the deceased. P.W.10 is the photographer. P.W.11 is thewoman constable, who took the lady of deceased for autopsy. P.W.12is the Judicial Magistrate, who recorded the witness statement ofP.W.1 tp P.W.4 u/s.164 Cr.P.C. P.W.13 is the Doctor who examined thevictim and issued Accident Register copy. P.W.14 is the Doctor whoissued death memo. P.W.15 is the Post Mortem Doctor. P.W.16 is theScientific Officer. P.W.17 is the Sub Inspector of Police whorecorded F.I.R, P.W.18 is the Judicial Magistrate who recorded thedying declaration of the deceased. P.W.19 and P.W.20 are theInvestigating Officers who investigated and filed the charge sheetrespectively.(b) According to the evidence of P.W.1,P.W.4 and P.W.5 who arethe sisters of the deceased Shakila Banu, that at about 01.00 a.m onthe morning of 20.06.2006, the accused came to his house in aninebriated mood and scolded his wife Shakila Banu suspecting her https://hcservices.ecourts.gov.in/hcservices/ fidelity and questioned her as to who is the man she had gone, and bysaying so he had poured the kerosene on her body and lit her and hadfled away. The other witnesses P.Ws.4 and P.W.5 had spoken to thateffect that on hearing the crying of Shakila Banu they went and sawat the house of Shakila Banu where they could see that Shakila Banuwas engulfed with fire and immediately they extinguished the fire bypouring water and had taken Shakila Banu to the hospital. P.W.8 and 9are the independent witnesses, who had also supported the evidencespoken by P.Ws.1 to 5. P.W.7 is the Observation Mahazar witness.(c) After reaching the hospital the Doctor had examined thevictim Shakila Banu and had prepared the Accident Register CopyEx.P.9 that the victim Shakila Banu was assaulted by her husband by01.00 a.m on 20.06.2009. He had also made a note that the victim wasbrought by P.W.6 to the hospital. On intimation by the hospitalauthorities to the Police, they visited the victim at the hospital by03.00 a.m and recorded the statement of the victim Shakila Banu andon that basis the case was registered by P.W.17 by 04.00 a.m on thesame day. The said complaint was produced as Ex.P.1 and the case wasregistered in Cr.No.588/2006 u/s. 307 I.P.C at 05.00 a.m on the sameday. The investigation was undertaken by the Investigating Officerimmediately by visiting the plea of occurrence preparing theObservation Mahazar – Ex.P.4 and the material objects were alsoseized through Ex.P.3. Thereafter the Investigating Officer had takensteps to record the dying declaration of the victim woman ShakilaBanu and P.W.18 was nominated and accordingly he had recorded thedying declaration on the same day by 10.30 a.m after following theprocedural formalities. The dying declaration was produced as Ex.P.16wherein the victim woman had categorically spoken to the effect thather husband accused had quarrelled with her and poured kerosene overher person and lit fire and he was in a inebriated condition andquarrelled with her at that time. Thereafter the accused was arrestedby the Investigating Officer and was remanded to judicial custody.The victim women subsequently died due to the burn injuries sustainedby her in the occurrence on 26.06.2006 by 10.45 a.m. The deathintimation Ex.P.19 was given by the hospital authorities to theInvestigating Officer and in turn the Investigating Officer hadaltered the section from 307 to 302 I.P.C and sent an alterationreport in Ex.P.20. to the court. The Investigating Officer P.W.19continued to investigate case till his transfer and P.W.20 continuedto investigate thereafter by examining the Doctors and obtained PostMortem Certificate and filed the charge sheet against the accusedu/s. 302 I.P.C.7. Heard Mr.P.Venkatasubramanian, learned counsel for theappellant and Mr.Babu Muthu Meeran, learned Additional PublicProsecutor appearing for the respondent.8. Learned counsel for the appellant/accused would submit in hisargument that the lower court was wrong in ending with conviction https://hcservices.ecourts.gov.in/hcservices/ u/s. 302 I.P.C against the appellant/accused based upon the testimonyof witnesses P.W.1 to P.W.4, who are the witnesses closely related tothe deceased. He would further submit that the dying declarationwhich was mainly relied upon by the lower court cannot be acceptedbecause the Doctor who was stated to have issued the certificate ofconsciousness was not examined on the side of the prosecution andtherefore the consciousness of the deceased woman was questionableand the alleged testimony given by the victim woman cannot be deemedto have come from her mouth of the vicimt and the relatives who wereactively in and around her had tutored the victim woman to say so andtherefore the dying declaration cannot be relied upon. 9. He would further submit in his argument that the 164Statement produced in Ex.P.2, P.5 and Ex.P8 given by the witnessesshould not have been relied upon as those witnesses are related tothe deceased woman. Moreover, he would submit in his argument thatthe defence taken by the accused in his statement as well as in hisevidence was not considered by the lower court. He would also submitthat the deceased women had committed suicide when her character wasquestioned by the accused and therefore,it cannot be said that theaccused had committed the offence of murder. He would also submit inhis argument that the lower court did not appreciate the evidence ofthe prosecution by considering the evidence of the prosecution spokenin the cross examination. As the incident was wrongly spoken by theprosecution witnesses, the conviction and sentence passed by thelower court cannot be sustained and therefore it has to be set asideand the appeal be allowed.10. Learned Additional Public Prosecutor would submit in hisargument that the lower court had entered conviction promptly afterappraising the evidence adduced before it. He would further submitthat the eye witnesses who are said to be the relative witnesses arealso related to the accused and therefore the mere relationship withthe deceased woman would not in anyway affect the veracity of thewitnesses. He would further submit that the dying declaration of thedeceased women was promptly recorded in accordance with law and basedupon the said dying declaration and evidence of the JudicialMagistrate who recorded the dying declaration, the trial court hadcome to a correct conclusion and there was nothing to rely upon theplea of the defence that the deceased woman committed suicide bypouring kerosene on herself. He would draw the attention of the courtto the the evidence of the children namely P.W.2 and P.W.3 who hadspoken that their father was the accused and he who had committed theoffence. Therefore, he would request the court to dismiss the appeal.11. After giving anxious thoughts to the argument advanced oneither side, we could understand that the occurrence had taken placeduring night hours on 19.06.2006 (i.e) at 01.00 a.m in the earlymorning on 20.06.2006, when the accused came to the house in aninebriated condition, where the victim women Shakila Banu was https://hcservices.ecourts.gov.in/hcservices/ sleeping and the accused had quarrelled with his wife and pouredkerosene on Shakila Banu and lit fire. According to the plea of theaccused, the victim had poured kerosene on herself and lit fire inorder to commit suicide. P.Ws.1,4 and P.W.5 are the sisters of thedeceased women and P.W.2 and P.W.3 are the children of the accusedand the deceased. As per the evidence of P.W.2 and P.W.3 who are thechild witnesses, the incident had happened on 20.06.2006 at about01.00 a.m when the accused had come and quarrelled with their motherand poured kerosene on her person and lit fire and thereby the victimwoman sustained burn injuries. The said evidence of child witnesseswho are the children of both the accused and deceased also cannot besimply brushed aside. Moreover, the defence case was that the victimwoman Shakila Banu had committed suicide after quarrelling with theaccused. Therefore, the occurrence in which the deceased sustainedburn injuries has been admitted and the cause of the fire was alsospoken by the victim woman Shakila Banu. The said evidence of P.W.2and P.W.3 was also corroborated by the evidence of P.Ws.1,4,5 andP.W.6. The independent witnesses P.W.8 and P.W.9 are the tenantsunder the victim woman and they had also spoken to the effect thatthey had seen the accused running from the scene of occurrence, onthe fateful night. In these circumstances, the evidence produced onthe side of prosecution cannot be brushed away as interestedtestimony.12. As regards the dying declaration of the deceased womanrecorded by P.W.18, as in Ex.P.16. is concerned a careful perusalwould show the certificate of the doctor about the consciousness ofthe deponent, namely the victim to give such declaration. Thecertification would be sufficient to hold that the victim wasconscious enough to give such dying declaration. It is the settledposition of law as laid down by Hon'ble Apex court that the doctorwho gave certificate of consciousness need not be examined forproving the same. The Judicial Magistrate examined as P.W.18 wassatisfied and therefore there is no impediment for the court toaccept the dying declaration recorded by the learned JudicialMagistrate, P.W.18. 13. Therefore, the arguments advanced by the learned counsel forthe appellant that the dying declaration was not reliable cannot beaccepted. In the said dying declaration, it has been categoricallyspoken to the effect that the accused had quarrelled with his wifeand poured kerosene over the person of the victim woman and lit fireand the accused was in an inebriated condition when he wasquarrelling with the deponent. Therefore, the plea of the accusedthat the victim woman Shakila Banu had committed self immolation byliting fire herself cannot be true at any stretch of imagination. 14. The witnesses P.W.2 and P.W.3 being the children of thedeceased had themselves spoken to the effect that the accused used toquarrel with their mother, deceased Shakila Banu and the accused had https://hcservices.ecourts.gov.in/hcservices/ poured the kerosene on mother Shakila Banu on such quarrel wouldindicate that the accused had acted on sudden provocation without anyintention to cause her death. The said argument cannot be correct,because if it happened on sudden provocation he would himself takethe said Shakila Banu to the hospital and look after her with greatcare. But the ocular evidence was to the effect that the accused wasflying away immediately from the scene of occurrence. In theaforesaid circumstances, the plea of the accused that the victimwomen set herself ablaze towards commission of suicide or the accusedhad suddenly provocated by the victim women and the accused hadpoured the kerosene due to sudden provocation and the offence cannotbe classified as a murder, cannot be sustained. The Trial Court hadpromptly analysed the evidence and had come to the conclusion to relyupon the dying declaration recorded by P.W.18 supported by the ocularevidence including the children of the accused and had come to theconclusion of convicting the accused u/s. 302 I.P.C and sentencedhim to undergo life imprisonment with fine of Rs.1000/-, which cannotbe found as without merits. 15. Therefore, we are of the considered view that there is thiscourt has no reason to interfere with the judgment of conviction andsentence passed by the Trial court and accordingly the appeal isliable to be dismissed.16. In fine, the criminal appeal fails and therefore it isdismissed by confirming the judgment of conviction and sentencepassed by the Trial Court. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkprTo1. The Additional District Sessions Judge Fast Track Court No.I, Coimbatore.2. The District Collector, Coimbatore District at Coimbatore.3. The Director General of Police, Mylapore, Chennai-4.4. The Superintendent, Central Prison, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/

5. The Inspector of Police, B-10, L&O Police Coimbatore City6. The Public Prosecutor, High Court, Chennai. Crl.A.No.350 of 2008MBS (CO)GSK 10.11.2009.