Afsal Khan v. State, rep. by Inspector of Police, B-3 Kattur Police Station, Coimbatore City

BAIL SLIPThe Appellant/Accused viz. Afsal Khan was directed to bereleased on bail as per the order of this Court dated 18.9.2006in Crl.M.P.No.4247 of 2006 in Crl.Appeal No.269 of 2006.IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.04.2008CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE R.REGUPATHICriminal Appeal.No.269 of 2006Afsal Khan... Appellant (Sole Accused)vs.State, rep. by Inspector of Police, B-3 Kattur Police Station,Coimbatore City.(Cr.No.1430/2004).... Respondent (Complainant)Appeal against the judgment of the learned PrincipalDistrict and Sessions Judge, Coimbatore, dated 15.11.2005 made inS.C.No.132 of 2005.For Appellant:Mr.R.John SathyanFor Respondent :Mr.N.R.ElangoAdditional Public Prosecutor* * * * * https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T(Delivered by P.D.DINAKARAN,J.)The appellant, sole accused, was convicted for havingcommitted uxoricide and sentenced to imprisonment for life and afine of Rs.2,000/- with a default sentence, by judgment dated15.11.2005 in S.C.No.132 of 2005 on the file of PrincipalDistrict and Sessions Judge, Coimbatore.2.The charge against the appellant is that on 11.10.2004 atabout 2.15 p.m., due to aversion towards his wife, viz., ThahiraBanu, on account of her continuous illicit relationship with oneMani @ Manikandan and for having filed a petition for divorcebefore Jamath, the appellant poured sulphuric acid on the body ofhis wife, when she was lying down in their residence and onaccount of that she succumbed to the burn injuries suffered on14.11.2004 and thereby, committed an offence under Section 302I.P.C.3.On being committed to Court of Sessions, the accused wasquestioned as to his complicity in the crime, but he denied andhence, the trial was taken up. To substantiate the above charge,the prosecution marched 18 witnesses armed with 26 documents and10 material objects. On the side of defence, the accusedproduced two witnesses, but did not mark any document. The trialCourt, on careful scrutiny of the materials, both oral anddocumentary and on listening to the arguments of both sides,convicted and sentenced the appellant/accused as referred toabove.4. The brief facts leading to the conviction are that:(a) P.W.2 is the brother of the deceased Thahira Banu. Thedeceased Thahira Banu was given in marriage to the accused aboutten years prior to the occurrence and out of their wedlock, twochildren were born – a girl aged 10 years and a boy aged 8 yearsat the time of occurrence. The accused was a painter-coolie byprofession. They were residing at Karunanidhi Nagar. About 6months prior to the occurrence, the deceased developed intimacywith one Manikandan, P.W.4, who was running a workshop oppositeto the residence of the deceased and accused, when he used tovisit frequently under the guise of getting the money due to himfrom the accused. This was objected by the accused, resulting infrequent quarrels. Even after they shifted their residence, theintimacy continued, due to which the accused left the house withhis children to his parents house. P.W.2, brother of thedeceased, was requested to join the children with the deceased. https://hcservices.ecourts.gov.in/hcservices/ On 11.10.2004 at about 7.00 a.m., the accused returned to thehouse, where P.W.1 was also present and the accused and thedeceased decided to get divorce before Jamath (Palli Vaasal).P.W.1, thereafter, went to his house to bring lunch for thedeceased and the accused. At about 2.15 p.m., the accused, whowent out and came back, brought acid and threw it on thedeceased, who was lying down on a mat. Immediately, she raisedhue and cry on account of burning sensation. The accused wentaway and on hearing the distressing cries of the deceased, P.Ws.2and 3 came to the house and took her to Government Hospital,Coimbatore.(b) P.W.10 is the medical officer who admitted and examinedthe injured at about 3.10 p.m. He noticed 41% burn injures on herperson and issued Ex.P.9, accident register copy and also sent anintimation Ex.P.1 to the police. (c) P.W.1, Head Constable of B-3 Police Station, on receiptof intimation, Ex.P.1, at about 5.00 p.m. proceeded to thehospital and recorded the statement of the injured, which isEx.P.2 in the case and thereafter, returned to police station andregistered a case in Crime No.1430 of 2004 for an offence underSection 324 I.P.C. Ex.P.3 is the printed F.I.R. P.W.1 despatchedthe F.I.R. to Court and copies to superior officers.(d) P.W.16, Sub-Inspector of Police, on receipt of copy ofF.I.R., took up investigation; proceeded to the spot; observedthe same and prepared Exs.P.4 and P.20, observation mahazar andrough sketch respectively. The scene of occurrence was caused tobe photographed. Ex.P.10 series are the photographs andnegatives. M.Os.1 to 8 were recovered from the scene ofoccurrence under a mahazar Exs.P.5 in the presence of P.Ws.5 and6.(e) In the meantime, on receipt of information from thehospital authorities to record the dying declaration of theinjured Thahira Banu on 12.10.2004 at 1.00 p.m., P.W.8, JudicialMagistrate No.6, Coimbatore, proceeded to the hospital and afterascertaining from the medical officer, who was present there, asto the consciousness of the injured to give statement, proceededto record her statement. Ex.P.8 is the certificate issued byP.W.9, doctor, to the effect that the patient is conscious, well-oriented and in a fit state of mind to give statement and Ex.P.9is the proceeding of the learned Magistrate. https://hcservices.ecourts.gov.in/hcservices/ (f) On 20.10.2004, P.W.16 came to know that the accusedsurrendered before the Court. He examined P.W.4 and recorded hisstatement. On 3.11.2004, he registered a case in Crime No.1589 of2004 on the basis of a complaint given by one Mohammed Aasamagainst the accused and arrested the accused and sent him toCourt for judicial remand. Ex.P.21 is the printed F.I.R. in thesaid case. Thereafter, he came to know about the death of thedeceased and hence, after examining P.Ws.2,3, 5 and 6, he handedover the investigation to P.W.17, Inspector of Police. (g) In the meantime, P.W.11, the medical officer, who gavetreatment to the injured Thahira Banu, caused the plastic surgeryto be conducted on the body of the injured Thahira Banu by expertdoctors and he also noticed infections on charred portions of thebody. But, in spite of effective treatment, the injured ThahiraBanu died on 14.11.2004 at about 1.30 p.m. and an intimation,Ex.P.10 was sent by P.W.12 to the police station. According toP.Ws.11 and 12, death could have been occurred on account ofsepticemia and that the acid-burn injuries suffered by thedeceased are sufficient in the ordinary course of nature to causedeath.(h) P.W.17, on taking up investigation and the deathintimation, Ex.P.10, altered the case to one under Section 302I.P.C. Ex.P.22 is the express F.I.R. in the altered crime. Heconducted inquest over the dead body of Thahira Banu in thepresence of panchayatdars and witnesses and prepared Ex.P.23,inquest report. He recorded the statements of the witnesses andsent the body to the hospital with a request to conduct post-mortem. He, thereafter, handed over investigation to hissuccessor, P.W.18, on his return from leave.(i) P.W.13, Civil Assistant Surgeon, Coimbatore MedicalCollege Hospital, Coimbatore, conducted post-mortem on the deadbody of Thahira Banu and noticed infected dermal-muscle deepwounds on various regions of the dead body. He issued Ex.P.12,post-mortem certificate, opining that the deceased would appearto have died of infected wounds and their complications.(j) P.W.18 took up investigation and sent the seizedmaterial objects to Court with a request to forward them forchemical analysis. On a petition, he caused the arrest of theaccused on P.T. Warrant and on interrogation, the accused cameforward to give a confession statement, which was recorded in thepresence of P.W.15 and another. The admissible portion isEx.P.17, pursuant to which M.O.9, acid can, was seized underEx.P.18 mahazar, attested by P.W.15 and another. The accusedtook the police to the shop of P.W.7, where Ex.P.6, cash billbook was recovered under Ex.P.19 mahazar. On 28.12.2004 and on https://hcservices.ecourts.gov.in/hcservices/

3.1.2005, he examined witnesses and medical officers and recordedtheir statements. On completion of investigation on 16.2.2005,he laid the charge sheet against the accused for the offencepunishable under Section 302 I.P.C.(k) When the accused was questioned under Section 313Cr.P.C. on the incriminating materials, he denied them as false.He filed written statement, in which he has stated that thedeceased was not interested in leading a happy life with him andshe did not even take care of the children. He has furtherstated that the deceased developed intimacy with P.W.4 when heused to visit the house and that she also eloped with P.W.4taking their son with her, resulting in a complaint lodged beforepolice and after some time, the deceased returned to live withhim and that she informed him that P.W.4 ill-treated her andhence, she realised her mistake and returned back. The accusedhas further stated that P.W.4 came to their house and scolded thedeceased for having given complaint against him and alsothreatened danger to her life. But, according to the accused,when he was in his parent's house along with his children, heheard from P.W.2, brother of the deceased, that the deceased gotinjured and admitted in the hospital. On his side, he examinedD.Ws.1 and 2, mother of the deceased and daughter of the deceasedand the accused. (l) According to D.W.1, mother of the deceased, she admitsthe illicit intimacy of the deceased with P.W.4, Manikandan anddue to the intervention of the police, the deceased leftManikandan and lived with the accused for some time prior to theoccurrence. She has further stated that when the deceased wastaken in an auto to the hospital, the deceased told her thatP.W.4 again came back and called her and since she refused to goalong with him, he threw acid on her. But, however, she admitsthat in order to save the family's reputation, she asked thedeceased to tell the police that it was the accused, who pouredacid on her and as such, the deceased told the police accusingher husband. D.W.2 also admits that P.W.4 used to come to theirhouse and when he asked her mother to accompany him, she refusedand therefore, P.W.4 picked up quarrel with her mother. She hasstated that on the date of occurrence she was in her grandmother's house and that the accused had gone to attend hispainting work.(m) In short, the accused claimed alibi; that he did nothave any grudge or ill-will against his wife, the deceased; andthat he accused of P.W.4, Manikandan, for the death of his wife. https://hcservices.ecourts.gov.in/hcservices/ (n) The trial Court, on scrutinisation of materialsavailable and on hearing the submissions of both sides, slappedthe conviction on the appellant/accused rejecting the defencetheory. Hence, the appeal.5. Mr.John Sathyan, learned counsel appearing for theappellant, contended that the dying declarations, Ex.P.1, andEx.P.7 could not have been given by the deceased voluntarily andthey must have been on account of tutoring by her mother, asevident from the evidence of D.W.1. However, alternatively, heargued for modification of conviction under lesser offence, sinceadmittedly, the deceased developed intimacy with P.W.4,Manikandan, due to which there was no love-lost between theaccused and the deceased and hence, in view of the sustainedprovocation given by the deceased, without any intention to causeher death, the appellant threw acid on her, which resulted in herdeath.6. Per contra, Mr.N.R.Elango, learned Additional PublicProsecutor, submits that on the strength of Exs.P.1 and P.7,dying declarations and the evidence of P.Ws.2, 3, 4 and 6 theprosecution has not only established the motive, but also theoccurrence proper that it was the accused who poured sulfuricacid on the deceased and caused her death. The learnedAdditional Public Prosecutor also opposed the plea of lesseroffence by submitting that by the act of the accused he had shownhis intention to cause such bodily injury which is likely tocause her death and hence, no lesser offence is attracted and anoffence under Section 302 I.P.C. is made out.7. In the light of the submissions made on both sides, wewent through the entire materials placed before us.8. It is not in dispute that the deceased died due to theburn injuries suffered on account of throwing of sulfuric acid onher body. The said fact stands established through the evidenceof doctors, P.Ws.10, 11 and 12, who admitted and treated thedeceased and P.W.13, who conducted autopsy as well as Ex.P.9,accident register copy and Ex.P.12, post-mortem certificate,which clinchingly show that the deceased died on account ofinfected wounds (septicemia) and their complications.9. The questions that are to be decided by this Court are:(i)Whether it was the accused who threw sulfuric acid on the deceased and caused such burn injuries ?; and https://hcservices.ecourts.gov.in/hcservices/ (ii) Whether the act committed by the accused attracts any lesser offence?10. The prosecution, to substantiate its case, relies upontwo dying declarations of the deceased, one given to P.W.1, HeadConstable and the other given to P.W.6, Judicial Magistrate.Before proceeding to delve into the issue, it would be appositeto refer the ruling with regard to the acceptability of the dyingdeclaration.11.1. In Jai Karan v. State of Delhi (NCT) [1999 SCC (Crl.)1385], the Supreme Court has laid down the following law:"A dying declaration is admissible in evidence onthe principle of necessity and can form the basisfor conviction if it is found to be reliable. Whileit is in the nature of an exception to the generalrule forbidding hearsay evidence, it is admitted tothe premise that ordinarily a dying person will notfalsely implicate an innocent person in thecommission of a serious crime. It is this premisewhich is considered strong enough to set off theneed that the maker of the statement should state soon oath and be cross-examined by the person who issought to be implicated. In order that a dyingdeclaration may form the sole basis for convictionwithout the need for independent corroboration, itmust be shown that the person stating it had theopportunity of identifying the person implicated andis thoroughly reliable and free from blemish. If, inthe facts and circumstances of the case, it is foundthat the maker of the statement was in a fit stateof mind and had voluntarily made the statement onthe basis of personal knowledge without beinginfluenced by others and the court on a strictscrutiny finds it to be reliable, there is no ruleof law or even of prudence that such a reliablepiece of evidence cannot be acted upon unless it iscorroborated. A dying declaration is an independentpiece of evidence like any other piece of evidence--neither extra strong nor weak--and can be acted uponwithout corroboration if it is found to be otherwisetrue and reliable."(emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/

11.2. In P.V. Padhakrishna v. State of Karnataka [2003 SCC(Crl.) 1679], the Supreme Court has held as under:"This is a case where the basis of conviction of theaccused is the dying declaration. The situation inwhich a person is on the deathbed is so solemn aridserene when he is dying that the grave position inwhich he is placed, is the reason in law to acceptthe veracity of his statement. It is for this reasonthe requirements of oath and cross-examination aredispensed with. Besides, should the dyingdeclaration be excluded it will result inmiscarriage of justice, because the victim beinggenerally the only eyewitness in a serious crime,the exclusion of the statement would leave the courtwithout a scrap of evidence.Though a dying declaration is entitled to greatweight, it is worthwhile to note that the accusedhas no power of cross examination. Such a power isessential for eliciting the truth as an obligationof oath could be. This is the reason the court alsoinsists that the dying declaration should be of sucha nature as to inspire full confidence of the courtin its correctness. The court has to be on guardthat the statement of the deceased was not as aresult of either tutoring, or prompting or a productof imagination. The court must be further satisfiedthat the deceased was in a fit state of mind after aclear opportunity to observe and identify theassailant. Once the court is satisfied that thedeclaration was true and voluntary, undoubtedly, itcan base its conviction without any furthercorroboration. It cannot be laid down as an absoluterule of law that the dying declaration cannot formthe sole basis of conviction unless it iscorroborated. The rule requiring corroboration ismerely a rule of prudence..."11.3. In Thurukanni Pompiah and Anr. v. State of Mysore, AIR1965 SC 939, the Supreme Court has held that a truthful andreliable dying declaration may form the sole basis of conviction,even though it is not corroborated. But the Court must besatisfied that the declaration is truthful. The reliability ofthe declaration should be subjected to a close scrutiny,considering that it was made in the absence of the accused who https://hcservices.ecourts.gov.in/hcservices/ had no opportunity to test its veracity by cross examination. Inthe event the Court finds that the declaration is not whollyreliable and the material and integral portion of the deceased'sversion of the entire occurrence is untrue, it would be onlyunsafe to convict the accused on the basis of such declarationalone without there being any corroboration.12. It is, thus, clear from the above principles that adying declaration, which is admissible under Section 32 of theIndian Evidence Act, is entitled to great weight, but, it must bekept in mind that the accused has no power of cross examinationand such a power is essential for eliciting the truth. The Courtmust see reasons that the dying declaration of such a nature hasinspired full confidence as to its correctness. The main test ofreliability of a dying declaration is mental and physical fitnessand capability of the person to make the statement at that pointof time.13. The first dying declaration in the instant case is thestatement of the deceased, Ex.P.1, given to P.W.1, HeadConstable, who recorded the same on receipt of intimation fromhospital authorities and based on such statement, the law was setin motion. Thus, Ex.P.1 is the earliest document to come intoexistence, in which, it is stated that the accused was suspectingthe fidelity of the deceased due to her illicit intimacy with oneManikandan. To substantiate the same, the prosecution examinedthe said Manikandan as P.W.4 and according to him, he used tovisit the house of the deceased frequently under the pretext ofgetting back the amount payable by the accused to him and thus,developed intimacy with the deceased. Even as per the defencecase, this fact stands established through D.W.1, mother of thedeceased. From the evidence of P.W.4 and P.W.17, Investigatingofficer as well as Ex.P.24, complaint given by the accusedagainst P.W.4, it could be culled out that P.W.4 and the deceasedlived as husband and wife for some period and only due tointervention of the police, they were separated and the deceasedjoined the accused and lived together for some months prior tothe occurrence. Thus, we are convinced that the prosecution hasestablished the motive part of the case.14. It is the further case of the prosecution that evensubsequently the intimacy of the deceased with P.W.4 continuedand hence, the accused and the deceased decided to get themselvesseparated before Jamath (Palli Vaasal) in the presence of P.W.2,brother of the deceased. It was under such circumstances, on theday of occurrence, the accused returned to the house from hisparental home and when P.W.2, brother of the deceased, left thehouse to bring lunch for them, the accused, taking advantage ofthe same, went out; bought sulfuric acid from P.W.6; returned to https://hcservices.ecourts.gov.in/hcservices/ the house and threw the same on the deceased when she was lyingdown. The deceased, on account of burn injuries, raised hue andcry, on hearing which, P.Ws.2 and 3 came to the scene. It is thecategorical evidence of P.Ws.2 and 3 that they saw the accusedwith a silver pot in his hand and after throwing it away, he leftthe scene. Therefore, we are fully convinced that Ex.P.1 wasgiven by the deceased voluntarily within a short span of time,without any iota of doubt that it could not have been on accountof tutoring.15. The next dying declaration is Ex.P.7 recorded by thelearned Judicial Magistrate No.6, Coimbatore, at 1.20 p.m. on12.10.2004. In the said statement also, the deceased implicatedher husband as the person who poured acid on her body when shewas lying down. She has also stated in Ex.P.7 that since theaccused was in the habit of picking up quarrels with hersuspecting her fidelity, they decided to go before Jamath fordivorce, but the authorities at Jamath prolonged the issue andeven on the date of occurrence, her brother, P.W.2, pacified themand after he went away, the accused came and poured the acid onher. The said statement was recorded in the presence of P.W.9,who appended his certificate that the deceased was conscious andin a fit state of mind during the recording of dying declaration.Therefore, we are of the confirmed opinion that both the dyingdeclarations are truthful and reliable and same has come from themouth of the deceased, who was on her deathbed and hence, shewould not have falsely implicated an innocent person in thecommission of a serious crime.16. That apart, there are other materials by way ofcorroboration, viz., the evidence of the doctors, P.Ws.10 and 11,as well as Ex.P.9, accident register copy, which disclose thatwhen they questioned as to the cause for such injuries, they wereinformed that it was the accused who poured acid on the body ofthe deceased. 17. From the above materials, it is undoubtedly clear thatit was the accused who threw sulfuric acid on the body of thedeceased, which resulted in her death.18. The only question that is left to be decided is thenature of offence committed by the accused. It is free from alldoubts that all was not well with the accused and the deceased onaccount of the incorrigible character of the deceased. Thoughin the case on hand, there is no sudden provocation given by thedeceased, the accused had committed the offence due to the https://hcservices.ecourts.gov.in/hcservices/ sustained provocation caused by the deceased by her immoralcharacter in spite of the accused requesting her not to continuewith such relationship taking note of the paramount interest ofthe children. 19. That apart, the accused, in his statement under Section313 Cr.P.C., apart from claiming alibi, also stated that he hadno grudge or ill-will against his wife and in spite of herimmoral character, he accomodated with her in the interest of hischildren and he also accused of P.W.4 for the death of his wife.He examined D.Ws.1 and 2 in support of his plea. But, we areunable to accept the theory of alibi, in view of the directevidence of P.Ws.2 and 3, who saw the accused at the scene ofoccurrence having M.O.1, the silver pot, in his hand, whichcontained sulfuric acid, and we find no reason to disbelievetheir evidence. But, taking note of the lewd character of thedeceased, we have no hesitation to draw an inference that therewas a burning uncontrolled sustained provocation in the mind ofthe accused, which made him to commit such an act against hiswife. Therefore, we are of the confirmed opinion that theoffence committed by the accused can be brought down underException 1 to Section 300 I.P.C. But, it is established throughEx.P.1, statement of the deceased to P.W.1, Ex.P.7 - judicialdying declaration and the evidence of P.W.2 - brother of thedeceased, P.W.3 - neighbour and P.W.6 - acid vendor, that theaccused by pouring sulfuric acid had the intention to cause suchbodily injury as is likely to cause the death of the deceased.Hence, we are of the confirmed opinion that the conviction can bemodified to one under Section 304 Part-I I.P.C., instead ofSection 302 I.P.C.20. As far as the sentence part is concerned, consideringthe mental agony of the accused and also considering theparamount interest of the children, aged 10 and 6 years at thetime of occurrence, we are of the view that a sentence of fiveyears rigorous imprisonment would meet the ends of justice.In result, (i) the conviction of the appellant/accused underSection 302 I.P.C. is set aside and instead, he isconvicted under Section 304 Part-I I.P.C.;(ii) for the said conviction, he is sentenced tofive years rigorous imprisonment; https://hcservices.ecourts.gov.in/hcservices/ (iii) as the accused is reported to be on bail,the bail bonds shall stand cancelled and the learnedSessions Judge shall take steps to commit him to jailto undergo the remaining period of sentence;(iv) with the above modification in conviction andsentence, the appeal is allowed in part.sraSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1. The Principal District and Sessions Judge, Coimbatore.2. The District Collector, Coimbatore.3. The Director General of Police, Chennai.4. The Inspector of Police, B-3 Kattur Police Station, Coimbatore City. 5. The Superintendent, Central Prison, Coimbatore.6. The Public Prosecutor, High Court, Madras.Klt (co)dv/29.5.Crl.A.No.269 of 2006