Kamaraj v. State rep. by The Inspector of Police, G-3, Puzhal Police Station, Puzhal, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 06.11.2008 CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE S.RAJESWARANCRIMINAL APPEAL NO.816 OF 2007Kamaraj .. Appellant/AccusedVs.State rep. byThe Inspector of Police,G-3, Puzhal Police Station,Puzhal,Chennai .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2)Cr.P.C. against the judgment of the learned Principal SessionsJudge, Tiruvallur made in S.C.No.32 of 2006 dated 03.07.2007. For Appellant : Mr.Ashok Kumar, SC for Mr.C.D.JohnsonFor Respondent : Mr.P.Kumaresan, APP JUDGMENT(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to the judgment of the Principal SessionsDivision, Tiruvallur made in S.C.No.32 of 2006, whereby the soleaccused/appellant stood charged under Sections 498-A and 302 IPC,tried and found guilty as per the charges and awarded lifeimprisonment and to pay a fine of Rs.1000/-, in default to undergo 6months R.I. under Section 302 IPC and 3 years R.I. and to pay a fineof Rs.1000/-, in default to undergo 6 months R.I. under Section498-A IPC and the sentences were ordered to run concurrently. 2. The short facts necessary for the disposal of this appealcould be stated thus:a)The accused is the husband of the victim Sandhya. P.Ws.1 and3 are the parents of the victim. P.W.5 is an Auto driver byprofession. P.W.6 is the brother of the accused and P.W.7 is his https://hcservices.ecourts.gov.in/hcservices/ wife. The marriage between the accused and the victim took place inthe year 2001 and there was often quarrel among the spouses. Theaccused was an Auto driver by profession and he was a drunkard. Heused to put the victim to cruel treatment and he used to pledge thejewels with P.W.9. b)On 7.4.2002 at about 11.00 a.m., there was a quarrel amongthe spouses. The deceased poured kerosene on her in order to threatthe accused as if she was about to commit suicide if he quarrelswith her. Immediately, the accused lit the match stick and threw iton her and set her ablaze. On hearing the distressing cry, P.W.7,the wife of P.W.6, raised noise and all others gathered. Aninformation was given to P.Ws.1 and 3. It was P.W.5 who immediatelytook her to the Kilpauk Medical College Hospital in his auto. c)P.W.14, the Doctor attached to the said Hospital, admittedher and gave treatment. Ex.P.7 is the accident register in thisregard. An intimation was given to the respondent police station.P.W.16, the Inspector of Police, on intimation, went to the hospitaland recorded the statement of the victim, which was marked asEx.P.9. On the strength of the said statement, he registered thecase in Crime No.63 of 2002 under Section 307 IPC. Ex.P.10, theF.I.R. was despatched to the Court. An intimation was given toP.W.2, the Judicial Magistrate-I, Tiruvallur, who went to thehospital and after verifying that she was conscious enough and had aframe of mind to give such a declaration, she recorded her dyingdeclaration in the presence of the medical person and the same wasmarked as Ex.P.2. d)P.W.16 took up the investigation, proceeded to the spot andmade an inspection in the presence of the witnesses. He preparedEx.P.3, the observation mahazar and Ex.P.11, the rough sketch. Healso recovered M.Os.1 to 3 and 5 from the place of occurrence undera cover of mahazar. All the material objects were sent for chemicalanalysis. The accused was arrested on 9.4.2002 at about 5.30 a.m. Hecame forward to give confessional statement, which was recorded inthe presence of the witnesses. The said confession statement wasmarked as Ex.P.14. Despite treatment, the victim succumbed to burninjuries on 9.4.2002. On receipt of the said intimation, the casewas altered to Section 304-B IPC. Ex.P.15, the alteration report,was sent to the Court. e)An intimation was sent to the Revenue Divisional Officer, whohas conducted inquest on the dead body of the deceased in thepresence of the witnesses and panchayatdars. Ex.P.18 is the inquestreport. Then, the dead body was sent for the purpose of autopsy. f)P.W.15, the Doctor attached to the Kilpauk GovernmentHospital, on receipt of the requisition, has conducted autopsy onthe dead body of the deceased and has issued Ex.P.8, the post-mortemcertificate, wherein he has opined that the deceased would appear tohave died of burn injuries. https://hcservices.ecourts.gov.in/hcservices/ g)P.W.17, the Inspector of Police, took up furtherinvestigation. After verifying the records, he converted the case toSection 302 IPC. Ex.P.17, the alteration report was sent to theCourt. He recorded the statement of the witnesses. Ex.P.21, theChemical Analyst's report and Ex.P.22, the Biology Report werereceived. On completion of the investigation, he filed the finalreport.3. The case was committed to the Court of Sessions andnecessary charges were framed. In order to substantiate the chargeslevelled against the accused, the prosecution has examined 17witnesses and also relied on 22 exhibits and 5 M.Os. On completionof the evidence on the side of the prosecution, the accused wasquestioned under Section 313 Cr.P.C. as to the incriminatingcircumstances found in the evidence of prosecution witnesses, whichhe flatly denied as false. No defence witness was examined. Thetrial court, after hearing the arguments advanced and scrutiny ofthe materials available, took the view that the prosecution hasproved the case beyond reasonable doubt and found the accused guiltyas per the charges and awarded punishments as referred to above.Hence this appeal has arisen at the instance of the appellant.4.Advancing arguments on behalf of the appellant, the learnedSenior Counsel would submit that in the instant case, theprosecution has miserably failed to prove its case by any evidence;that according to the prosecution, the occurrence has taken place on7.4.2002 at about 11.00 a.m. in the house of the deceased; that fromthe evidence available, it would be quite clear that from the timeof the marriage, there was a quarrel among the spouses; that even onthe date of occurrence, there was a quarrel; that even according tothe prosecution, the deceased has given statement to P.Ws.1,3,4,5,14and 16 and also to P.W.2, the Judicial Magistrate as dyingdeclaration; and that when all those documents are scrutinized,complete discrepancies were found, which would go to the root of thematter.5. Added further the learned Senior Counsel that according tothe prosecution, it was P.W.5 who took the deceased to the hospitalimmediately; that even according to P.W.5, she informed him that itwas herself who poured kerosene and set fire herself; that she wasadmitted by P.W.14, the Doctor at about 12.00 noon and the accidentregister was marked as Ex.P.7; that from the contents in Ex.P.7 andthe evidence of P.W.14, the Doctor, it would be quite clear that shewas conscious and she has also given statement that it was herselfwho poured kerosene and set herself fire; that there is no reason asto why she has given false version at the earliest; and that if theversions given to P.W.5 and P.W.14 were taken to have been proved,then the prosecution had no case at all.6. The learned Senior Counsel has further submitted that thedeceased has given statement to P.W.16, the Inspector of Police,wherein it is found that she poured kerosene herself and it was herhusband who set her ablaze; that the Judicial Magistrate hasrecorded the dying declaration at about 9.45 p.m. on 7.4.2002, https://hcservices.ecourts.gov.in/hcservices/ wherein she has stated that it was the accused who poured keroseneon her and set her ablaze; that there were clear variations in thestatements given before the police officer and before P.W.2, theJudicial Magistrate and thus, it would be quite clear that inbetween the hours, she was tutored; that there is no reason for thevictim to give false version to P.W.5 and also to P.W.14, the Doctorat the earliest; that a careful perusal of these documents wouldclearly indicate that the subsequent documents were thoroughlytutored and under these circumstances, the case of the prosecutionthat it was her husband/accused who poured kerosene on her and sether fire has got to be rejected and that the lower court has notconsidered all the above aspects of the matter.7. Added further the learned Senior Counsel that there was acharge under Section 498-A IPC; that no one witness in particularthe parents of the deceased have not whispered anything about thesame and thus, the offence under Section 498-A IPC was not provedand under these circumstances, the prosecution has miserably failedto prove the case and hence the lower court should have rejected thecase, but failed to do so and under these circumstances, theappellant is entitled for acquittal in the hands of this court.8. The court heard the learned Additional Public Prosecutor onthe above contentions and has paid its anxious consideration on thesubmissions made.9. It is not in controversy that Sandhya, the wife of theaccused, following an incident that took place at about 11.00 a.m.on 7.4.2002 at her residence, was taken to the hospital immediatelyby P.W.5 and she was admitted by P.W.14, the Doctor, but shesuccumbed to injuries on 9.4.2002. Originally, the case wasregistered by P.W.16, the Inspector of Police under Section 307 IPCand on her death, it was converted to Section 302 IPC. Following theinquest, the dead body was subjected to post-mortem by P.W.15, theDoctor, who has issued Ex.P.8, the post-mortem certificate that shedied out of burn injuries. It is not disputed by the appellant thatshe died out of burn injuries and thus, it could be recorded so. 10. In order to substantiate the fact that it was the accusedwho poured kerosene on her and set her ablaze, the prosecutionrelied upon the statements that were given by the deceased toP.W.16, the Inspector of Police, on the strength of which the casecame to be registered and also to P.W.2, the Judicial Magistrate,who recorded the dying declaration, which was marked as Ex.P.2. Inthe instant case, when these two documents are taken intoconsideration from the point of view of the earlier statements givenby the deceased, the court is afraid whether conviction could besustained relying on those documents, which were recorded by P.W.16,the Inspector of Police and P.W.2, the Judicial Magistrate.11. It is not in controversy that the occurrence has takenplace at about 11.00 a.m. on 7.4.2002 and she was immediately takento the hospital by P.W.5. P.W.5 is an auto driver. The victim hasinformed him that it was herself who poured kerosene and set herself https://hcservices.ecourts.gov.in/hcservices/ fire. P.W.5 has spoken the said fact. Had it been true that it wasthe accused who poured kerosene on the deceased and set her ablaze,it is quite natural that one would expect the deceased to informP.W.5 that it was the accused. On the contrary, she has stated thatit was herself who poured kerosene and set herself fire. 12. The added circumstance is the earlier statement given bythe victim to P.W.14, the Doctor and Ex.P.7, the accident registercopy. P.W.14 has categorically deposed that when she was admitted inthe hospital, she has given statement that she herself pouredkerosene and set fire herself. The contents in Ex.P.7 whenscrutinized, would clearly indicate that she was conscious and itwas recorded that "sustaining burns by self with kerosene at theabove address on the back" and it was also recorded that patient wasconscious while answering to questions. Thus, it would be quiteclear that at the earliest when she was taken to the hospital, shehas given a statement to the Doctor that it was herself who pouredkerosene and set fire herself. Further, there was no reason for thevictim to give any false or tutored version at the earliest beforeP.W.5, the auto driver or before P.W.14, the Doctor. Apart fromthat, it has got to be pointed out that the statement was given toP.W.16, the Inspector of Police at about 5.15 p.m.. Thus, there wastime interval of nearly 5 hours. According to P.W.1, P.Ws.1 and 3were very well available at the hospital. It was a case where therewas often quarrel. Thus, she has given statement to P.W.16 that shepoured kerosene herself and it was her husband who set her ablaze.When the dying declaration was recorded by P.W.2, the JudicialMagistrate, she has given a different version that it was theaccused who poured kerosene on her and set her ablaze. Thus, therewere inconsistencies found in those two documents. These twodocuments, which have come into existence later, in the opinion ofthe court, need not be given importance. There were not onlyinconsistencies found, but also there was clear variation from theearlier document given to P.W.14. Under these circumstances, thecourt is of the considered opinion that on the strength of thosedocuments, it cannot be stated that the prosecution has proved thecase beyond reasonable doubt. Though the prosecution was able toprove that she died out of burn injuries caused at the time andplace of occurrence, it has miserably failed to prove that it wasthe act of the accused by setting her fire. Thus, the appellant isentitled to an order of acquittal insofar as the charge of murder. 13. So far as the charge under Section 498-A IPC are concerned,on scrutiny of the evidence, the court is of the considered opinionthat the act of the accused would attract the penal provision ofSection 498-A IPC. It is a case where she has committed suicide andeven on the date of occurrence, there was a quarrel and it was theaccused who uttered the words and has given cruel treatment to herand hence the deceased was mentally affected and thus, she hascommitted suicide. Though the prosecution had no evidence to offerthat there was any cruel treatment pursuant to the dowry demand,there was a cruel treatment, which compelled her to commit suicide.Hence the act of the accused would attract the penal provision of https://hcservices.ecourts.gov.in/hcservices/ Section 498-A IPC, for which the lower court has awarded 3 yearsR.I. 14. Accordingly, the conviction and sentence imposed on theappellant under Section 302 IPC are set aside and he is acquitted ofthe said charge alone. The fine amount if any paid by the appellantfor the offence under Section 302 IPC shall be refunded to him. Theconviction and sentence imposed on the appellant under Section 498-AIPC are confirmed. The period of sentence already undergone by theappellant is ordered to be given set off. Accordingly, this criminalappeal is dismissed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarvvkTo1. The Principal Sessions Judge, Tiruvallur.2. The Inspector of Police, G-3, Puzhal Police Station, Puzhal, Chennai.3. The Public Prosecutor, High Court, Madras.4. The Superintendent, Central Prison, Puzhal, Chennai.Copy toThe Section Officer,Criminal Section,High Court, Madras-104.+ 1 c.c. to Mr. C.D. Johnson, Advocate. S.R.No.61742. CRL.A.NO.816 OF 2007GV (CO)GSK 14.11.2008.