Ambedkar v. The State

In the High Court of Judicature at MadrasDate : 07..02..2008Coram :The Hon'ble Mr. Justice D. MURUGESANandThe Hon'ble Mr. Justice V. PERIYA KARUPPIAHCriminal Appeal No: 75 of 2007Ambedkar,Vellavari Street,Mettu Street,Namakkal District.... Appellant/Accused.-vs-The State,represented by The Inspector of Police,Nannilam Police Station.... Respondent/Complainant.[Cr.No.1595/04]Criminal appeal under Section 374 of Cr.P.C. against the judgmentof the learned Additional District and Sessions Judge, Namakkal,dated 21.02.2006 in S.S.C. No: 117 of 2005.For appellant : Mr. B. VasudevanFor respondent : Mr. P. Kumaresan, Additional Public ProsecutorJ U D G M E N T V. Periya Karuppiah, J.This appeal is directed against the judgment dated 21.02.2006 inS.C. No: 117 of 2005 of the Additional District -cum- Sessions Judge,(Fast Track Court), Namakkal, convicting and sentencing the soleaccused to undergo life imprisonment and pay a fine of Rs.5,000/- indefault to undergo SI for six months for the offence under Section302 I.P.C. and for the offence under Section 304 (2) I.P.C.sentencing him to undergo R.I. for seven years and and to pay a fineof Rs. 2,000/- in default to undergo S.I. for three months. Thesubstantive portion of the sentences are directed to run concurrently.2. The case of the prosecution is as follows : https://hcservices.ecourts.gov.in/hcservices/ P.W.1 is living at Vellavari Street, Namakkal, along with hispaternal uncle's family. He had two sisters and one brother. As hisfather and mother died during his childhood, all of them were broughtup by their paternal uncle in his house. His elder sisterKanagavalli is unmarried and his younger sister Karpagavalli gotmarried to the accused two and half years prior to the date of theoccurrence. They are also living in the same street. They have oneand half year old daughter by name Aswini. His sister and herhusband used to quarrel often regarding family matters. On27.10.2004, upto about 7.30 p.m., Karpagavalle went back to her housefrom their paternal uncle's house. Around 9.30 p.m. when P.W.1 wasat the house of his paternal uncle, the accused came carrying thechild Aswini with burn injuries and gave it to his paternal mothersaying the child caught fire and ran. P.W.1 and his paternal aunttook the child to Government Hospital, Namakkal, and got it admittedthere. They came back to his sister house and saw Karpagavalli lyingdead with burn injuries. When enquired, neighbours informed P.W.1that the accused had murdered Karpagavalli and had run away. 3. The learned Additional and Sessions Court, Namakkal, whichtried the case, had come to the conclusion that the prosecution hadproved its case and passed an order of conviction and sentence asstated above. 4. Before the trial Court, Gnansekaran who is the brother ofKarpagavalli- Deceased No: 1 in this case, was examined as P.W.1 inthis case. He would depose that the accused is the husband ofKarpagavalli. Deceased No: 2 is one and half year old girl by nameAswini, who is the daughter of Karpagavalli and the accused. Themarriage between the accused and the deceased Karpagavalli took placetwo and half years prior to the date of occurrence. There oftenused to be quarrel among the couple for family matters. The accusedwas demanding for one sovereign of gold ring for him which they hadpromised during the marriage. The accused did not go to any job andwas giving troubles to his wife under the influence of alcohol. (ii) On 27.10.2004, at about 9.30 p.m. on the information fromneighbours that the child had caught fire, P.W.1, his paternal uncleand paternal aunt rushed to the house of the accused; there theaccused brought the child Aswini with burn injuries and handed overthe child to his paternal aunt; immediately P.W.1 took the child andgot it admitted at the Namakkal Government Hospital; he came back tothe house of the accused around 10.30 p.m. in search of his sister;there he saw his sister lying with burn injuries and thereafter, hewent to the Police Station and lodged the complaint Ex.P.1. 5. Before the trial Court, the prosecution had also examinedother witnesses including P.W.1's paternal uncle and paternal aunt,the Doctors who conducted post mortem on the dead body ofKarpagavalli and the child Aswini, the Sub Inspector of Police andother independent witnesses. P.W.11 was the Inspector In-charge ofNamakkal Police Station on 27.10.2004. At about 11.30 p.m. on https://hcservices.ecourts.gov.in/hcservices/

27.10.2004, he received the intimation regarding the registration ofCrime No: 1595 of 2004 in Namakkal Police Station and he started hisinvestigation at about 6.00a.m. on 2.10.2004. He went to the sceneof occurrence and prepared Observation Mahazar, Ex.P.7 and roughsketch, Ex. P.11. He conducted inquest over the dead body ofKarpagavalli in the presence of Panchayatdars and others. Ex.P.12 isthe inquest report pertaining to Karpagavalli. He handed over thedead body to P.W.8 along with a requisition to conduct post mortem.Before P.W.7 and others, he recovered a half burnt mat – M.O.2, halfburnt cloth and sample cloth – M.O.3, half burnt cloth of the cradle– M.O.4, 5 ltr. Cane – M.O.1 and a match box – M.O.5 under a cover ofmahazar Ex.P.8 and sent those articles for chemical examination. Heenquired the witnesses and recorded their statements. P.W.11 handedover the further investigation to P.W.12.6. P.W.12 was the Inspector at Namakkal Police Station at therelevant point of time. He would state in his evidence that he tookup further investigation from P.W.11 on 02.11.2004. On 02.11.2004,P.W.12 received the death intimation of the child Aswini from theHospital around 10.30 p.m. which is Ex.P.13. He went to the Hospitalon 03.11.2004 around 7.00 a.m. and conducted inquest over the deadbody of the child Aswini in the presence of the Panchayatdars. Theinquest report is Ex.P.14. He sent the dead body of the child Aswinithrough a Head Constable to post mortem along with a requisition. Heenquired P.Ws. 1, 4, 6 and others and recorded their statements. On05.11.2004, he enquired with P.Ws. 5 and one Narasimhan and recordedtheir statements. On 06.11.2004, he enquired P.Ws. 4, 1 and othersand recorded their statements. He sent a requisition Ex.P.15, to theCourt to subject the case properties for chemical examination. TheCourt sent the case properties to the laboratory as an enclosure toCourt's letter Ex.P.16. The chemical analysis report is Ex.P.17. Heconducted further enquiries with some more witnesses and recordedtheir statements. Ex.P.18 is the intimation received from theHospital as to the admission of the accused in the hospital on28.10.2004 at 4.40. Ex.P.19 is the intimation regarding theadmission of the child Aswini in the hospital and Ex.P.20, is theintimation received by the learned Magistrate from the Hospital.Ex.P.21 is the confession statement of the accused. On 09.12.2004 atthe Government Hospital, Namakkal, around 11.30 a.m., before P.W.10and another, P.W. 12 recorded the confession statement from theaccused. Ex.P.22 is the recommendations given by the Doctor to keepthe accused under treatment. Ex.P.23 is the requisition forarresting the accused. Ex.P.24 is the discharge summary pertainingto the accused. After the accused was discharged from the hospital,through a requisition to Court, the accused was remanded to judicialcustody. P.W.12 continued with further investigations by recordingthe statements of the Doctors who conducted post mortem over the deadbody of both Karpagavalli and Aswini. On completion of theinvestigation, on 12.03.2005 P.W.12 filed charge sheet against theaccused in Court for the offences under Sections 498 A, 302 and 304(2) I.P.C. https://hcservices.ecourts.gov.in/hcservices/

7. Learned counsel for the appellant Mr. B. Vasudevan, wouldsubmit in his argument that the husband namely the accused has beenwrongly implicated in the alleged crime of committing murder of hiswife as well as causing death of his child Aswini in an incident inwhich his wife had committed suicide by pouring kerosene and littingfire on her person and the entire case is based upon circumstantialevidence which would require a strong proof from all the sources soas to connect the link of circumstances. According to the learnedcounsel for the appellant, though the prosecution did not perform itsduty of discharging its burden in proving the guilt of the accusedwithout any doubt, the lower Court had convicted the accused andsentenced him to undergo imprisonment as stated above. He wouldfurther submit in his argument that the appellant / accused had alsosustained burn injuries when he attempted to save his wife from thefire and he was admitted in Hospital and took treatment for about 115days for his burn injuries and, therefore, the alleged commission ofmurder of his wife cannot be considered to have been established andthat the accidental death of his child, which is one and half yearsold, was only due to the engulf of fire emanated from the personof his wife and in that aspect also the appellant is not guilty ofany offence, much less the charge that he was the cause for the deathof his daughter. Learned counsel further insisted in his argumentthat the evidence of the prosecution witnesses are contrary to eachother and they have deposed falsely against the appellant / accusedin order to wreck vengeance for the act of the accused of havingmarried the deceased after loving her for five years. 8. More over, he would submit in his argument that the suicidecommitted by the wife of the appellant could be evidenced from the100% burn injuries found on her body which is clear from the medicalevidence and the circumstantial evidence having not been completed byconnecting all the links perfectly, he would pray for the acquittalof the accused / appellant by giving him the benefit of doubt. Insupport of his argument, learned counsel would submit a decision ofthe Supreme Court reported in 2006 (10) S.C.C. 172 [RamreddyRajeshKhanna Reddy and another vs. State of Andhra Pradesh], whichis to the effect that the links of the chain of circumstantialevidence should not be missed so as to prove the charge against theaccused. 9. Mr. Kumerasen, learned Additional Public Prosecutor,appearing on behalf of the State, would submit in his reply argumentthat the prosecution had proved the entire circumstances available inthe case without any default, with the help of the prosecutionwitnesses especially through the evidence of P.W.5, who was presentat the time of the incident and who had seen the deceased gutting tofire. Learned Additional Public Prosecutor would draw our attentionto the evidence of P.W.5 and submit that when the fire was guttingthe deceased, the accused was sitting without helping her andthereafter, the act of the accused having taken the child awayleaving his wife to flames so as to burn her further and handed overthe child to his relatives and fled away from the scene of https://hcservices.ecourts.gov.in/hcservices/ occurrence. He would further submit in his argument that the evidenceof P.W.5 coupled with that of P.Ws.1, 4 and 6 would prove the factthat the accused was not seen with any injury when he came out of hishouse wearing only a 'jetty' for handing over his injured childAswini to P.W.1 before he could fled away from the scene ofoccurrence. The said circumstances would also lead to an inferencethat the accused had put kerosene on his wife and lit fire. Hewould further submit in his argument that the conduct of the accusednamely leaving the house at that point of time is peculiar and thatwill lead to suspicion and the explanation given in his statementrecorded under Section 313 of Cr.P.C. cannot be relied upon andthey are blatant lies which would only strengthen the case of theprosecution further more. 10. The learned Additional Public Prosecutor would furthersubmit in his argument that the evidence adduced on the side of theprosecution and the defence evidence produced by the accused would goto show that there was no question that the deceased committingsuicide and the statement given by the accused to the Doctor, as seenfrom the Accident Register, Ex.P.21, that he sustained injury in astove burst incident and that would also show that the incident inwhich the appellant's wife died was not an attempt of suicide by herand therefore, the resultant conclusion would be that the accusedshould have caused the death of his wife since admittedly he waspresent at the scene of occurrence when his wife was engulfed infire. Under these circumstances, the arguments of the learnedAdditional Public Prosecutor is to the effect that the prosecutionhas shown all the circumstances which would naturally prove the guiltof the accused and therefore, the finding of the learned SessionsJudge that the accused is guilty of committing the murder of his wifethereby he has also caused the death of his daughter and the same maybe confirmed and the appeal be dismissed.11. We have given our anxious consideration to the argumentsadvanced by both sides. The occurrence is said to have taken placeon 27.10.2004 at the house of the accused around 9.30 p.m. The wifeof the appellant / accused namely Karpagavalli was said to havecaught fire and due to the fire she got 100% burn injuries; the childbelonging to them namely Aswini, aged about one and half years, whichwas in the cradle also caught fire; the accused, who was present atthe spot, is said to have taken out the child from the cradle andbrought the child from and out of the house and handed over the childto P.W.1 and P.W.1's paternal aunt who came there on hearing theincident and later the accused left the scene of occurrence.According to the statement of the accused, he had handed over thechild to P.W.1 to be taken to the hospital for treatment and heimmediately returned to his house to see the plight of his wife whowas already engulfed with fire.12. On a careful perusal of the evidence let in by theprosecution through P.Ws. 1, 4 and 6, it is clear that when theaccused had handed over the child to them there were no burn injurieson his person. Apart from these witnesses, P.W.5 is a person who had https://hcservices.ecourts.gov.in/hcservices/ immediately arrived at the scene of occurrence namely the house ofthe accused. He has seen the appellant's wife burning in fire; theaccused sitting at a distance, witnessing his wife burning; theaccused was bringing the child out of the house and handing over thesame to the paternal aunt of P.W.1. Such a clear and categoricalevidence of P.W. 5 would go a long way to show that the accused wassitting idle without making any attempt to defuse the fire on theperson of his wife. Apart from these facts, P.W.5 had deposed to theeffect that just prior to the time of occurrence he saw the accusedcarrying a cane towards his house. This evidence leaves no room todoubt that the alleged statement given by the accused that his wifehad committed suicide by self-immolation is false. 13. Learned counsel appearing for the appellant, at thisjuncture, would insist in his argument that P.W.5 was examined afterfive days from the date of the occurrence and therefore his evidencemay not be taken as a trust worthy statement and after eschewing theevidence of P.W.5, there is no evidence available to the prosecutionto say that the accused was involved in the commission of the crime.No doubt, P.W.5 was examined and his statement was recorded afterfive days from the date of the occurrence. He was not examined atthe time of conducting inquest over the dead body of the deceased.However, in the evidence of the investigating officer, namely P.W.12,he would explain to the effect that before filing the final report,he could not come to a conclusion whether the death of Karpagavalliwas due to suicide or a murder, and at that point of time, P.W.5voluntarily came to him and told him about what he saw and in fact,P.W.5 had given Ex.P.12, a letter, narrating as to what happened onthe day of occurrence and this letter was also noted in the GeneralDiary of the Police station and thus, the investigating officer hadcome to the conclusion that the alleged incident was in fact a murderand not a suicide. The explanation offered by P.W.12 is certainlyacceptable and the delay caused in the examination of the witnessP.W.5 will not in any way affect the case of the prosecution sincethe final report could be filed only after a thorough enquiry. 14. Apart from that we have to see whether the explanation givenby the accused by way of submitting his defence through a statementwhen questioned under Section 313 Cr.P.C. are true and genuine.Similarly, the statement given by the accused to the JudicialMagistrate in the presence of the Doctor who treated him for the burninjuries found on his person shall also be looked into for thepurpose of testing the veracity of his statements and its trustworthiness. When we go through his statement given to the JudicialMagistrate, he would state that on the fateful day, he had a heatedaltercation with his wife and finally he told her that she could goto her father's house and eke out her livelihood there and on hearingthat his wife suddenly got into the house and therefore, the accusedcame out and sat on the pial. Within five minutes he could smellkerosene and also smoke emanated from his house and when he wentinside, he saw his wife burning and when he tried to save her, theenormous heat affected him also and at that time on seeing his childscreaming he took the child out and handed over the same to somebody https://hcservices.ecourts.gov.in/hcservices/ waiting outside and thereafter, he had told his mother-in-law thather daughter had poured kerosene on herself and that his mother-in-law must take care of her grand daughter. Further he would also addin that statement that though he wanted to go to Mayavan Hospital fortaking treatment, as he was not feeling well, he fainted before abunk shop and after sometime when he regained conscious, he hired anauto rickshaw and reached the Government Hospital. 15. But, in his statement given under Section 313 Cr.P.C. theappellant would state that he and his wife were leading a happy life,and on the fateful day, he and his family returned from a relative'sbetrothal function only in the evening; he was sitting on the pialjust opposite to his house, at that time, his neighbours told himthat smoke is coming from his house and when he rushed inside, hecould see that his wife was burning in fire; but he could not saveher by defusing the fire; on his attempt to save her he also caughtfire and in order to save their child, he had brought the child outand handed over her to the persons standing outside and he went backto his house for saving his wife; he could not tolerate his injuriesand he fainted and somebody had admitted him in the GovernmentHospital, Namakkal. He had also stated that the cause for fire inwhich his wife was injured should be due to stove burst. 16. Thus, there are two versions given by the accused at twodifferent point of times. Before the Magistrate the appellant hadstated that his wife had committed suicide by self – immolation andthat is why she sustained 100% burn injuries on her person. But inthe statement recorded under Section 313 Cr.P.C., he had stated thatthe burn injuries were due to bursting of the stove. It is pertinentto note here that in both the statements, the appellant did not denyhis presence at the scene of occurrence at the time of the incident.Thus, his presence at the scene of occurrence is admitted by him butthe reason as to how his wife caught on fire had beencontradictorily stated by him. Similarly, the cause of fire has alsobeen explained by him cogently but in a contradictory manner. Thesecontradictory versions from the mouth of the accused as to the causeand the manner in which the incident took place and the furtherconduct of the accused only strengthens the case of the prosecution.The evidence of P.W.5 is to the effect that he had noted theappellant carrying the can just prior to the occurrence is vital andbecomes strong to fasten the liability against the accused. Moreover, the accused is said to have been admitted in the hospital in anunconscious stage as per his own sworn statement. Whereas, thestatement given before the Magistrate discloses that he had hired anautorickshaw on his own and reached the hospital. 17. The said contradictory statements in getting admission inthe Government Hospital, Namakkal, is also vital and fatal to histrust worthiness. He was admitted in the Government Hospital,Namakkal, on 28.10.2004 at 4.35 p.m. This is evident from Ex.P.24and Ex.D.1, the discharge summary and the accident registerrespectively. No explanation was offered by the accused as to whyimmediately when he sustained injuries, he did not get himself https://hcservices.ecourts.gov.in/hcservices/ admitted in the hospital. He had taken almost one day for gettingadmission in the hospital after he sustained the injuries in thealleged occurrence. The evidence of D.W.1, the Doctor who hadtreated the accused, is to the effect that when the appellantappeared before him it should be around 4.35 p.m. on 28.10.2004. InEx.P.24, the Discharge summary also, the time of admission wasmentioned as 4.35 p.m. on 28.10.2004. Therefore, the evidence ofD.W.1 is also not helpful to the appellant. 18. Thus, on a careful perusal of these materials we could seethat the statements given by the accused before the Magistrate andbefore the Court when questioned under Section 313 of Cr.P.C. arehaving serious contradictions not only regarding the cause of fire inwhich his wife was burnt but also as to the manner in which he cameto sustain the burn injuries on his person and also as to why hecould not get himself admitted in the hospital immediately after hehad sustained such injuries. At this juncture, the evidence adducedby P.W.5 would loom large to support the case of the prosecution thatthe accused had taken kerosene in a 'can' and P.W.5 immediately heardthe voice that the appellant's wife was burning and that the otherwitnesses including P.W.5 had not seen any injuries on the body ofthe accused when he came out of the house, while his wife wasburning, in order to hand over the child Aswini to P.W.1's paternalaunt. 19. Thus, the clear evidence of P.W.5 and the circumstancesnarrated by the prosecution supported by material evidence would go along way to show that the accused was present at the scene ofoccurrence at the time of occurrence and therefore, the burden isheavily on him to prove his innocence. Whereas, the accused did notcome forward with any acceptable explanation to prove his innocence.On the contrary, he has come out with contradictory versions asdiscussed above. We are of the considered opinion that, in thiscontext it is pertinent to refer to the decision of the Supreme Courtreported in 2007 (1) S.C.C. (Cri) 80 [Trimukh Maroti Kirkan vs. Stateof Maharashtra] wherein it was held that," In a case based on circumstancial evidence where noeyewitness account available, there is another principle oflaw which must be kept in mind. The principle is that whenan incriminating circumstance is put to the accused and thesaid accused either offers no explanation or offers anexplanation which is found to be untrue, then the samebecomes an additional link in the chain of circumstances tomake it complete."20. Apart from that when the prosecution has put forth a case ofmurder against the accused and when his defence is that his wife hadcommitted suicide, it is for him to prove his case and in the absenceof such vital defence, the last seen theory also would come intoplay. The deceased was lastly seen with the accused in their houseby more than one prosecution witness. In these circumstances, thetheory of suicide https://hcservices.ecourts.gov.in/hcservices/ by the deceased as put forth by the accused is found to be not true.The circumstantial evidence let in by the prosecution is completewith all the links of the chain being connected. The evidence ofP.W.5 coupled with the evidence of P.Ws. 1, 4 and 6 would go a longway to show that the finding given by the lower Court that theappellant is guilty of committing the murder of his wife by pouringkerosene and liting fire on her and in the same incident he had alsocaused the death of his one and half year old daughter Aswini isalso based on materials available on record and are proved by theprosecution beyond all reasonable doubt. For all these reasons, weare of the considered view that the conviction and sentence imposedon the appellant by the trial Court is not liable to be interferedand therefore, they are confirmed and the appeal stands dismissed.The trial Court is directed to take steps to secure the accused toserve the remaining period of imprisonment. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.gpTo1. The Additional District & Sessions Judge, Fast Track Court, Namakkal.2. -do- thr. The Prl. Sessions Judge, Namakkal.3. The Superintendent, Central Prison, Coimbatore.4. The District Collector, Namakkal.5. The Director General of Police, Chennai.6. The Inspector of Police, Namakkal Police Station, Namakkal.7. The Public Prosecutor, High Court, Madras. Crl. Appeal No:75 of 2007ng[co]gp/10.3.