Rasheed v. State

Bail Slip That the Appellant/Accused viz. Rasheed S/o.Abdul Lathif, wasreleased on bail as per order of this Court dated 3.8.2007 made inCrl.M.P.No.1 of 2007 in Crl.A.No.478 of 2007 on the file of thisCourt.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.06.2009 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRIMINAL APPEAL NO.478 OF 2007Rasheed .. Appellant Vs.State represented byInspector of Police,Tiruvallur Taluk Police Station,Tiruvallur.(Crime No.379 of 2003) .. Respondent This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Additional District Judge(Fast Track No.5) Tiruvallur Division made in S.C.No.139 of 2005dated 14.3.2007. For Appellant : Mr.K.VeeraraghavanFor Respondent: Mr.N.R.Elango, APP - - - - JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the AdditionalDistrict Judge, Fast Track Court No.V,Tiruvallur made in S.C.No.139of 2005, whereby the sole accused/appellant stood charged tried andfound guilty under Section 302 IPC and awarded life imprisonment andto pay a fine of Rs.5000/-, in default to undergo six months S.I., 2.The short facts necessary for the disposal of this appeal canbe stated as follows: https://hcservices.ecourts.gov.in/hcservices/ a)PW1 is a native of Pungathur and is known to the accused.PW2 is the son of the deceaed Vijayalakshmi. She was living with theaccused, though not married him. On the date of occurrence that wason 7.8.2003 at about 11.30 p.m., there was a quarrel between theaccused and deceased. Following the same, the accused poured keroseneand setting her ablaze. This was witnessed by PW1 Ramesh and oneRajendran. When she raised a distress cry, they tried to put out theflame, but she sustained burn injuries. Then, immediately she wastaken to the Government Hospital, Tiruvallur where PW4, doctor whowas on duty has treated her. Her statement was recorded .Thestatement given by her was recorded in the presence of PW4. Theaccident Register is Ex.P.1 b) An intimation was also given to the respondent policeand PW13 Inspector of Police,Chengalpet District has proceeded to theTiruvallur Government Hospital and recorded her statement in thepresence of PW4.He came to the Police station and on the strength ofthe statement recorded from the said Vijayalakshmi, has registered acase in Crime No.379 of 2003 under Section 307 IPC against theaccused/appellant. The printed FIR Ex.P.11 was despatched to theCourt. Thereafter she was referred to Kilpauk Medical CollegeHospital for further treatment. A request was sent to the XIVMetropolitan Magistrate for the purpose of recording dyingdeclaration and that was marked as Ex.P.12.but the same could not berecorded, since she was unconsicious. Thereafter, the InvestigatingOfficer proceeded to the spot, prepared Observation Mahazar and drewrough sketch which is marked as Ex.P.13. c)Pending investigation, P.W.13 arrested the accused andthe accused has come forward to give confessional statement, whichwas recorded in the presence of the witnesses. The admissible portionof confessional statement of the accused was marked as Ex.P.14.Pursuant to the confessional statement, the accused produced M.O.5plastic lid with a smell of kerosene which was recovered underEx.P.15, the cover of mahazar. Then, he sent the accused for judicialremand.d) Pending investigation, she died on 10.8.2003 and thecase was altered into one under Section 302 IPC and printed FIR wasdespatched to Court.The alteration report is Ex.P.16. TheInvestigating officer conducted inquest on the dead body and preparedEx.P.17, inquest report in the presence of witnesses andpanchayators. A covering letter of Judicial Magistrate I,Thiruvallurfor sendind case properties to Forensic science Laboratory forchemical analysis which is marked as Ex.P.19 and chemical report ismarked as Ex.P.20 e)P.W12, the Doctor attached to the Kilpauk GovernmentHospital, on receipt of the requisition, has conducted post-mortemon the body of the deceased and has issued Ex.P.10 post-mortemcertificate, wherein he has opined that the deceased would appear tohave died due to the complication of burns.3.The case was committed to the Court of Sessions andnecessary charges were framed. In order to substantiate the charges https://hcservices.ecourts.gov.in/hcservices/ levelled against the accused, the prosecution examined 13 witnessesand also relied on 20 exhibits and 5 M.Os. On completion of theevidence on the side of the prosecution, the accused was questionedunder Section 313 Cr.P.C. as to the incriminating circumstances foundin the evidence of prosecution witnesses. The accused flatly deniedthe same as false. No defence witness was examined. The trial court,after hearing the arguments advanced and scrutinizing the materialsavailable, took the view that the prosecution has proved the casebeyond reasonable doubt and found the accused guilty and awardedpunishment as referred to above. Hence this appeal has arisen at theinstance of the accused/appellant herein. 4. Advancing arguements on behalf of the appellant, thelearned counsel for the appellant has made the following submissions.In the instant case, according to the prosecution, the occurrence hadtaken place on 7.8.2003 at 11.30 p.m and only two witnesses wereshown in the list of witnesses, viz., one is Rjendran and another isRamesh, but Rajendran was not examined for the best reasons known tothe prosecution and the other witness Ramesh has turned hostile.Thus, the prosecution had no direct evidence to offer. Theprosecution has relied upon the circumstantial evidence. Theprosecution had relied upon Ex.P.2 document which was also acceptedby the trial Court erroneously. Even as per the prosecution case, itwas the accused who took the deceased to the Government hospital,Tiruvallur and it was PW4, the doctor who was on duty has giventreatment to her and Ex.P.1 is the Accident Register, the earliestdocument where it has been stated that the said Vijayalakshmisustained burn injuries when the stove was burst and the said versionwas given by the said Vijayalakshmi when she was conscious. The saidstatement which was recorded by PW4, the doctor would clearlyindicate that she sustained injuries due to stove burst and not bythe act of the accused. But, the second document which has come intoexistence and marked as ExP2 was relied upon as dying declaration andthe same was recorded.5.According to PW13, Inspector of Polce,ChengalpetDistrict, the statement was recorded at the hospital at about 1.45hours and the said statement was also taken to the Police station anda case was also registered for the offence under Section 307 IPC.Learned counsel would further add that though the prosecution claimedthat Ex.P.2 was a true and genuine document, the evidence of PW4 ifcarefully scrutinized would indicate that such a document could notbe come into existence at all. According to PW4, immediately afterrecording Ex.P.1 document, the accused made an attempt to run awayfrom that place as he was actually secured by the staff of thehospital and thereafter the police officer was present and in thepresence of the Police officer, the said Vijayalakshmi gave astatement as found in Ex.P.2. Ex.P.2 does not speak anything as tothe attempt made by the accused who ran away from the place ofoccurrence. In the instant case, though she lived for three days till10.8.2003, a requisition was also forwarded as per the evidence ofthe police officer and medical officer that the dying declarationwas not recorded at all.But,the prosecution had no explanation to https://hcservices.ecourts.gov.in/hcservices/ offer. It was the case of the prosecution that she sustained 90%injuries and hence the deceased could not be able to give aconfession statement. Learned counsel would further add that therewas a delay in despatching the First Information Report to theCourt. The police Station and the Judicial Magistrate Court aresituated in the Town of Tiruvallur. Though the case came to beregistered at 2.30 hours. on 8.8.2003, First Information Reportreached the Court at about 6.15 p.m. on the same day. But theconstable who took the First Informatation Report was not examinedand that the said delay remains unexplained. The delay in despatchingthe FIR is also against the case of the prosecution. The earliestdocument viz., extra judicial confesion should have been relied uponby the trial Court, since it was one given by the deceaed when shewas conscious, that too, it was given to the Doctor PW4 who has beenexamined by the prosecution to that effect. Though the evidence ofPW4 was available, it cannot be said that the prosecution had provedits case. On the contrary, extra judicial confession coupled with theevidence of PW4 has disproved the prosecution case that it was theact of the accused. Therefore, the trial Court has taken an erroneousview and the accused is entitled for acquittal Hence, the accusedhas got to be acquitted. 6.The court heard the learned Additional Public Prosecutoron the above contentions and has paid its anxious consideration onthe submissions made. 7.It is not in controversy that one Vijayalakshmi who wasliving with the accused was done to death following an incident thattook place at night hours on 7.8.2003 at about 11.30 hours was takento Tiruvallur Government Hospital and after she was given initialtreatment,she was taken to Kilpauk Medical College Hospital. Despitethe treatment, she died on 10.8.2003. After the inquest was made bythe Investigating Officer, the body was subjected to post-mortem byP.W.9, the postmortem Doctor, who has given his categorical opinionthat the deceased would appear to have died due to burn injuries. Itis a relevant fact that she died due to burn injuries was neverdisputed by the appellant at any stage of the trial or before thisCourt and it has got to be recorded so. 8. In order to prove the charges levelled against theapellantr/accused that it was he who poured kerosene and set fire onthe deceased, the prosecution examined only one witness PW1,Rameshwho turned hostile. Though one Rajendran witnessed the occurrence, hewas not examined. In the instant case, the prosecution placed muchreliance on Ex.P.2 document which according to the investigator wasgiven to him when she was in Tiruvallur Government Hospital. It iswell settled principle of law that, in a case like this, dyingdeclaration of the victim would be suffice to sustain the conviction.The prosecution placed much reliance on Ex.P.2, the statement givento PW13, the police officer,as dying declaration, while the defenceplea was that the earliest document Ex.P.1 which was given by thevictim to PW4, doctor. Ex.P.1 would indicate that the deceasedsustained burn injuries due to the bursting of the stove. Under such https://hcservices.ecourts.gov.in/hcservices/ circumstances, it has become necessary to consider both thesedocuments which have got to be believed and acted upon. Hence, afternoticing the discrepancies this Court is of the view that the casestood in favour of the prosecution. 9. The occurrence took plce at the night hours on 7.8.2003.Immediately after the occurrence, it was the accused who took her tothe hospital and the accused did not make any statement at all. Hehas also sustained simple injuries. He was treated by PW9 Doctor andthe Accident Register notice was also produced before the Court. Itis also the evidence of PW4 that the statement given by the deceasedwhich is marked as Ex.P.1 would indicate that she sustained burninjuries due to the burning of the stove and according to PW4,Doctor, immediately after the accident as found in EX.P.1 wasrecorded, he tried to escape from the hospital and the staff of thehospital who was deputed has secured him and accordingly he wassecured and brought to the hospital. At this juncture, it ispertinent to point out that the police officer has come to the spotsubsequently and recorded Ex.P.2 statement in the presence of PW4. Aperusal of Ex.P.2 would clearly indicate that PW4 the doctor, wasactually present and also certified that the accused was present andthe deceased was conscious to give such a statement. Further, Ex.P.2document would clearly indicate that while she gave the earlieststatement as found in Ex.P.1, the accused was present with her. Undersuch circumstances, she was compelled to give such a statement andaccordingly she gave the statement, but she has further added that itwas he who poured kerosene due to the quarrel at the time ofoccurrence. It is pertinent to point out that while the deceasedherself came forward to give explanation to the version that how shegave Ex.P.1 statement, the Court is thoroughly satisfied thatexplanation tendered by the victim herself has got tobe accepted.According to PW4,the doctor,the victim was consicious whil recordingthe statement of her. The conduct of the accused should also be takeninto consideration. After recrding the statement by the doctor, anintimation was given to the police officer and when the accused cameto know about the same, he was tried to escape from the hospital. Ifreally he had no involvement in the crime, there was no necessity forhim to escape from the place. He was realy secured by the hospitalstaff and thereafter also he immediately escaped. Now at thisjuncture, the immediate conduct of the accused would also speak abouthis involvement in the crime. The contentions of the learned counselappearing for the appellant that Ex.P.1 is the earliest document andat that time, the victim also conscious and she gave a statement toPW4 doctor, are not in dispute. 10.Even according to PW4, he recorded such a statement andhow such a statement came to be recorded was the point forconsideration and thereafter an explanation has been given by thevictim herself. The Court is satisfied that in the presence of theappellant/accused, under the compelled circumstances, she has givensuch a statement Ex.P.2, within a short span of time, that too, inthe presece of PW4, the doctor.Under such circumstances, thestatement Ex.P.2 has got to be acted upon. https://hcservices.ecourts.gov.in/hcservices/

11.The contention of the learned counsel for the appellantis that there was a delay in sending First Information Report to theCourt and FIR also reached after number of hours. At this juncture,it is pertinent to point out that a case was originally registeredunder Section 307 IPC for attempt to murder.Merely because there wasa delay in despatching the First Information Report to the Court ofCriminal Law itself is not a reason to reject the prosecution case.The court has thoroughly satisifed that it was the accused who pouredkerosene and set ablaze her and due to which she died. Hence, theCourt is unable to see anything to disturb the judgment of the trialCourt factually or legally. 12.In the result, this Criminal Appeal fails and the sameis dismissed. It is reported that the appellant is on bail and hencethe learned trial Judge shall take steps to secure his presence andcommit him to prison to undergo the remaining period of sentence. Sd/Asst.Registrar/true copy/Sub Asst.Registrar VJYTo1.The Judicial Magistrate No.I, Tiruvallur.2.-do- Thro' The Chief Judicial Magistrate,Tiruvallore.3.The Additional District Judge (Fast Track No.5) Tiruvallur Division 4.The Principal Sessions Judge, FTC, Tiruvallur.5. Inspector of Police,Tiruvallur Taluk Police Station,Tiruvallur.6.The Superintendent,Puzhal, Chennai. https://hcservices.ecourts.gov.in/hcservices/

7.The District Collector, Tiruvallore.8.The Deputy Inspector of Police,Mylapore, Chennai-4.9.The Additional Public Prosecutor, High Court, Madras 600 104. NM(CO)km/22.7.CRL.A.NO.478 OF 2007