Pokkesan @ Pokkesh v. State rep. by The Inspector of Police, Panruti police Station

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:24.07.2009CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMANDTHE HON'BLE MR.JUSTICE C.S.KARNANCRL.A.NO.777 OF 2008Pokkesan @ Pokkesh ...Appellant/AccusedVs. State rep. byThe Inspector of Police,Panruti police Station,(Crime No.946 of 2006) ...Respondent/ComplainantThis criminal appeal has been preferred under Section 374(2)Cr.P.C. against the conviction and sentence imposed in S.C.No.280 of2007 dated 06.08.2008 on the file of Sessions Judge, Mahila Court,Cuddalore. For Appellant : Mr.A.M.Rahamath AliFor Respondent: Mr.A.Saravanan, Government Advocate(Crl.Side) - - - - JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the Judgment of the Sessions Division(Mahila Court) Cuddalore made in S.C.NO.280 OF 2007 whereby the soleaccused stood charged,tried and found guilty under Section 302 IPCand awarded imprisonment for life along with a fine of Rs.10,000/- indefault to undergo rigorous imprisonment for three months.2. The short facts necessary for the disposal of this appeal canbe stated as follows: (a) Indumathy is the deceased. The accused married the https://hcservices.ecourts.gov.in/hcservices/ deceased Indumathy four months prior to the occurrence. The accusedalready got married and had two children and the first wife is alsoalive. (b) PW1 is the mother of the deceased. Both Indumathy anddeceased were living separately in R.S.Mani Nagar, Panruti. PW1'shouse is situated ½ mile away from the accused house. The accusedwas demanding money from Indumathy and quarreled with her often. On17.12.2006 at 8.45 p.m., PW1 came to her daughter's house. In themeantime, the accused poured kerosene upon her daughter and ran awayfrom the place of occurrence and at that time, it was PW16 who tookher in his cart to the Government Hospital, Panruti, where she wastreated by PW2 doctor attached to the Government Hospital, Panruti on17.12.2006 at 9.05 p.m. and Accident Register extract is marked asEx.P.1. Subsequently, she was referred to Government Hospital,Cuddalore for further treatment wherein PW17, doctor gave treatmentat 11.15 p.m and gave a Accident Register Ex.P.22. (c) On intimation viz.,Ex.P.6 from the Government Hospital,Cuddalore, P.W.12 Judicial Magistrate III, Cuddalore rushed to theHospital and after complying with all the formalities, he recordedthe dying declaration of the deceased at 11.30 p.m. The dyingdeclaration was marked as Ex.P.7. An intimation was also sent to therespondent Police Station. Thereafter, she was referred to GovernmentHospital Pondicherry. (d) P.W.14, Head Constable on 17.12.2006 at night hours receivedan intimation from Government Hospital, Panruti and proceeded toGovernment Hospital, Panruti and since she was referred to GovernmentHospital, Cuddalore, he proceeded to the GovernmentHospital,Cuddalore and on 18.12.2006 at 9.00 a.m. and recorded thestatement Ex.P.8 from the said Indumathy and on the strength ofwhich, he registered a case in Crime No.945/2006 under Sections 366IPC. Printed FIR Ex.P.9 was despatched to the Court. (e) P.W..15 Sub-Inspector of Police,Panruti took up the casefor investigation. On 18.12.2006 at 12.00 noon he went to the placeof occurrence made an inspection, prepared an Observation mahazarEx.P.10 and also drew a rough sketch Ex.P.11. He recovered M.O.1, akerosene plastic bottle under the cover of Mahazar Ex.P.12.(f) PW.23, Inspector of Police took up the case for furtherinvestigation. On 20.12.2006 at 4.45 p.m the accused was arrested. Hegave a confession statement voluntarily in the presence ofwitnesses. Since he had burn injuries, he was sent to the GovernmentHospital, Panruti for treatment. After treatment, he was sent toJudicial custody. (g)On 25.12.2006, he received an intimation from Government https://hcservices.ecourts.gov.in/hcservices/ Hospital, Pondicherry that the said Indumathy died. Thereafter, theSection was altered from 307 IPC to 302 IPC. Alteration reportEx.P.20 was despatched to Court. He conducted inquest on the deadbody in the presence of witnesses and panchayators and preparedEx.P.21 Inquest report.P.W.10 Photographer, took photos of thedeceased. M.O.2 series are the photos of the deceased. h)P.W.19, the Doctor attached to the Government Hospital,Cuddalore, on receipt of the requisition, has conducted autopsy onthe dead body of the deceased on 25.12.2006 at 3.45 p.m. and hasissued Ex.P.15, the post-mortem certificate, wherein he has opinedthat she died due to burn injuries.. i) On completion of the investigation, P.W.23 filed the finalreport. On 11.2.2007 against the accused 3.The case was committed to the Court of Sessions and necessarycharges were framed. In order to substantiate the charges levelledagainst the accused, the prosecution marched 23 witnesses and alsorelied on 21 exhibits and 2 M.Os. On completion of the evidence onthe side of the prosecution, the accused were questioned underSection 313 Cr.P.C. as to the incriminating circumstances found inthe evidence of prosecution witnesses, which he flatly denied asfalse. No defence witness was examined. The court below heard thearguments advanced on either side and took the view that theprosecution has proved the case beyond reasonable doubt and found theaccused/appellant guilty as per the charge of murder and awarded lifeimprisonment, which is the subject matter of challenge before thiscourt.4.Assailing the Judgment of the trial Court, learned counselwould submit that in the instant case, the prosecution has miserablyfailed to prove the case. The prosecution, though attempted to showPW1 as eye witness, but in the cross examination, PW1 has stated thatshe has not witnessed the occurrence. The prosecution had relied ondying declaration proceedings recorded by PW12 Judicial MagistrateIII,Cuddalore at about 11.30 P.M. on 17.12.2006 and marked as Ex.P.7.This was preceded by another document Ex.P.1 which was recorded byPW2, doctor attached to the Government Hospital, Panruti wherein ithas been categorically stated that she has sustained burn injuriesby herself and it was the earliest statement made by the deceasedwhich would be indicative of the fact that it was attempted by her toend her life and the subsequent document was Ex.P.7 dying declarationrecorded by PW12, Judicial Magistrate at 11.30 p.m. The admitted caseof the prosecution was that it was PW.16 who took her to GovernmentHospital,Panruti in his cart and at the time of cross examinationhe deposed that she was actually tutored by the police and she wasfurther instructed to say that the occurrence was happened because ofthe act of the accused, otherwise she would be put in trouble. From https://hcservices.ecourts.gov.in/hcservices/ this, it would be quite clear that the dying declaration given by herto PW12, Judicial magistrate was due to the result of the tutoring.Hence, PW12, dying declaration in Ex.P.7 should not be given anyimportance. Added further the learned counsel that, thereafter shewas taken from Government Hospital Panruti to the GovernmentHospital, Cuddalore where she was also given treatment and nowhereshe has spoken to the fact that it was the act of the accused. In theinstant case, the accused also sustained injury,when he was attemptedto quench the fire. All would go to show that the prosecution hasmiserably failed to prove its case. The alleged occurrence takenplace on 17.12.2006, but th said Indumathy died only on 24.12.2006 atthe Pondicherry hospital, after a week. That would indicative of thefact that she was living for one week. During which period, eitherthe medical report or CD file was not placed before the Court to theeffect that it was only the accused who has caused the death andhence the said fact was not proved at all. Under the circumstances,the prosecution has miserably failed to place or prove the necessarycircumstances pointing to the guilt of the accused. The trial Courthas taken an erroneous view and hence it is a fit case where thejudgment of the trial Court has got to be set aside. 5.The court heard the learned Government Advocate (Crl.Side) onthe above contentions and has paid its anxious consideration on thesubmissions made. 6. It is not in controversy that one Indumathy, daughter ofPW1 and wife of the accused/appellant, following an incident at about8.45 p.m. on 17.12.2006 at her house was originally taken toGovernment Hospital, Panruti and thereafter to Government HospitalCuddalore and she was taken to Government Hospital,Pondicherry forfurther treatment and she died on 24.12.2006. The prosecutionproduced Ex.P.1, Ex.P13 and also other connected documents and thepostmortem certificate where from it would be quite clear that thesaid Indumathy died consequent to the burn injuries sustained by heron 17.12.2006 and this fact was never disputed by the appellantbefore the trial Court and the trial Court was perfectly correct inrecording so.7. In order to substantiate that it was the accused who pouredkerosene on her by setting her ablaze, the prosecution placed muchreliance on the dying declaration recorded by PW12, the JudicialMagistrate concerned at 11.30 p.m on 17.12.2006. A perusal of Ex.P.7,dying declaration would indicative of the fact that after followingthe procedural formalities PW.12 Judicial Magistrate,III Cuddlorerecorded the dying declaration. He has also obtained the medicalopinion which would go to show that she was conscious and he hasalso received a certificate from the medical person who also deposedbefore the Court that she was conscious to give such a dyingdeclaration. If the dying declaration Ex.P.7 is perused, it would be https://hcservices.ecourts.gov.in/hcservices/ quite clear that the marriage between the accused and the deceasedhad taken place before four months and that on the day ofoccurrence,there was a quarrel and the accused poured kerosene andset fire on her and he immediately left the place. Thereafter, sheherself made an attempt to quench the fire and subsequently, it was athird party who took her to Government Hospital, Panruti. While theoccurrence has taken place at 8.45 p.m.,and the Judicial Magistrateconcerned recorded the dying declaration at 11.30 p.m, it ispertinent to point out that even before the case was registered bythe police that was on 18.12.2006 at 9 .00 a.m., Ex.P.7 dyingdeclaration proceedings have come into existence, which would beindicative of the fact that dying declaration found therein has gotbe true and correct. Apart from that, learned counsel brought to thenotice of the Court that dying declaration alleged to have been givenby the deceased to PW.12, Judicial Magistrate concerned was only as aresult of tutoring. In order to support his contention, he took theCourt to go through the evidence of PW16. According to theprosecution, it was he who took the victim to the GovernmentHospital, Panruti and at the time of cross examination, he statedthat she was actually tutored by the police to speak so and hence shehas given such a dying declaration. This evidence of PW16 cannot beaccepted, for the simple reason that from the time when he took herin cart to Government Hospital, Panturi, the police had no role toplay. Police was informed by the hospital authorities, Cuddalore.Then, the Head Constable went to the Cuddalore Hospital and recordedthe statement of the deceased at about 9.05 a.m. on 18.12.2006.Thus,it would be quite clear that the version of P.W.16 has got to beeschewed. At this juncture, the Court has to necessarily point outthe conduct of the accused. It was PW16 who took her from the placeof occurrence to the Hospital. Though the accused claimed to bepresent at the time of occurrence,that too, he made an attempt toquench the fire and in view of the same,he has also sustained injury,he did not accompany her to the Hospital. He fled away from the placeof occurrence. PW16 who took her to the Hospital has categoricallystated that it was he who alone took her to the hospital and nobodyaccompanied him and the conduct of the accused was that even thoughhis wife sustained burn injuries, he left from the place ofoccurrence and he was actually secured after a long time. He hadtaken treatment, but it was only on 20.12.2006. The conduct of theaccused under the stated circumstances would stand against him and itwas only in favour of the prosecution case. The earliest statementrelied on by PW2 in Ex.P.1 in Government Hospital, Panturi at about9.05 a.m, cannot be given importance for the simple reason that shewas under the excitement and this Court is unable to see any reasonwhy the dying declaration alleged to have been given before PW12,Judicial Magistrate III, Cuddalore under Ex..P.7, has got to bedisbelieved. In the absence of any reason to discard or disbelievethe evidence, the Court has to necessarily act upon the same and tobelieve the prosecution story. It is well settled principles of law https://hcservices.ecourts.gov.in/hcservices/ that the dying declaration of the victim would suffice to sustain theconviction, when the prosecution proved the fact that the accusedpoured kerosene and set fire on her.8. Learned counsel in the second line of argument would submitthat even as per the dying declaration, there was a quarrel precedingthe occurrence and as a result of which, the accused poured keroseneand set fire on her. Learned counsel took the Court to both thedocuments Ex.P.7 dying declaration recorded by Judicial Magistrateand Ex.P.8 statement given by the deceased to the Head Constable.When both are looked into, it would be quite clear that the marriagetook place just 4 months prior to the occurrence and suspecting herfidelity, there were quarrels between them and on the date ofoccurrence, there was a quarrel just preceding the incident and as aresult of which, he poured kerosene and set fire on her. In view ofthe circumstances attendant, the court is of the considered opinionthat the act of the accused cannot be said to be one premeditated orpre-planned or intentional, but it was due to sudden quarrel andprovocation. Hence the act of the accused would attract the penalprovision of Section 304(I) IPC and awarding punishment of 7 yearsR.I. would meet the ends of justice. 9.Accordingly, the conviction and sentence imposed on theappellant under Section 302 IPC are set aside and instead, theappellant is convicted under Section 304(I) IPC and is directed toundergo 7 years R.I. The period of sentence already undergone by theappellant is ordered to be given set off. The fine amount and defaultsentence imposed on the appellant by the trial court will hold good.With the above modification in conviction and sentence, this criminalappeal is disposed of. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvjyTo1.The Sessions Judge, Mahila Court, Cuddalore.2.The Principal Sessions Judge,Cuddalore. https://hcservices.ecourts.gov.in/hcservices/

3.The Inspector of Police, Panruti Police Station, Villupuram District.4.The Superintendent,Central Prison,Cuddalore.5.The Judicial Magistrate,Panruti.6.The Chief Judicial Magistrate,Cuddalore.7.The District Collector,Cuddalore.8.The Director General of Police,Chennai-4.9.The Additional Public Prosecutor, High Court, Madras.+1cc to Mr.A.M.Rahamath Ali, Advocate Sr 34100KS(CO)km/7.8.CRL.A.NO.777 OF 2008