Mahi @ Mahindran v. State

accused entered into the house and compelled the deceased for sexualintercourse. At that time, the deceased was preparing tea. Angered bythe non-cooperation and refusal on the part of the deceased, theaccused handpicked the stove, poured the kerosene on the deceased andran away from the scene of occurrence after setting her ablaze. As thedeceased sustained severe burn injuries, she was taken to ChromepetGovernment Hospital by her son, P.W.1 and on their advice, she wasadmitted in Government Kilpauk Medical College & Hospital at 9.30 p.m.,on the same day. 3. On receipt of intimation from the Government Kilpauk MedicalCollege & Hospital at 10.15 p.m., on 10.7.2004, P.W.11, the SubInspector of Police attached to Peerkankaranai Police Station, went tothe hospital after handing over a requisition under Ex.P-12 to the IXMetropolitan Magistrate, Saidapet to record the dying declaration of thedeceased. As the deceased was not conscious to give such a dyingdeclaration, as certified by the duty doctor Nirmala under Ex.P-6, heenquired and recorded the statement of P.W.1, the son of the deceased,under Ex.P-1 and registered the same in Cr.No.142 of 2004 for theoffence under Section 307 IPC. The First Information Report is Ex.P-11. 4. On receipt of the requisition from P.W.11, P.W.8, the IXMetropolitan Magistrate, Saidapet went to the Government Kilpauk MedicalCollege & Hospital at about 2.45 a.m., on 11.7.2004 and since thedeceased was not conscious to give such a dying declaration as certifiedby the duty doctor Nirmala under Ex.P-6, he could not record the dyingdeclaration. 5. In the meanwhile, P.W.11 went to the scene of occurrence andprepared the Observation Mahazar, Ex.P-2 and also drew rough sketch,Ex.P-13 in the presence of P.W.6 and other witness. He examined P.Ws.1,2and other witnesses and recorded their statements. As he receivedinformation from the hospital that the deceased had regainedconsciousness, he again gave a requisition to P.W.8, the IX MetropolitanMagistrate, Saidapet at 7.40 a.m., on 11.7.2004 for recording the dyingdeclaration of the deceased. 6. On receipt of such requisition, P.W.8 again went to thehospital at about 8.30 a.m., on 11.7.2004 and after following theprocedures and after ascertaining the fitness of the deceased to givesuch a statement from the doctor-P.W.9 under Ex.P-7, recorded the dyingdeclaration, Ex.P-5 of the deceased in the presence of P.W.9 between8.30 a.m., and 9.05 a.m. P.W.9 has also certified under Ex.P-8 that thedeceased was conscious and oriented throughout the period of recordingof the dying declaration. 7. As P.W.11 received intimation from the hospital that thedeceased had died at 6.30 p.m., on 11.7.2004, he altered the offence toone under Section 302 IPC and sent the altered report, Ex.P-14 to theCourt as well as to the higher police officials. He thereafter handedover the investigation to P.W.12, the Inspector of Police in-charge ofPeerkankaranai Police Station. https://hcservices.ecourts.gov.in/hcservices/

8. P.W.12, after scrutinising the file and the investigation doneby P.W.11, went to Government Kilpauk Medical College & Hospital on12.7.2004 and conducted inquest on the body of the deceased between 8.00a.m., and 10.30 a.m., in the presence of panchayatdars and prepared theinquest report, Ex.P-15. He thereafter gave a requisition to the doctorand sent the body through the Head Constable for conducting post-mortem.9. P.W.12, Professor, Department of Forensic Medicine attached toKilpauk Medical College & Hospital, on receipt of requisition and thebody at 11.30 a.m., on 12.7.2004, commenced post-mortem at 11.45 a.m.,and he noted the following injury:-"Infected superficial burns seen over the face,neck, both sides of upper part of chest front and backof both upper limbs upper part of back and scapularregion and part of middle of left thigh (48% burns).No other injury made out."He issued the post-mortem certificate, Ex.P-9 with his opinion that thedeceased would appear to have died due to the complication of burns.10. P.W.12, continuing with his investigation, arrested theaccused near Selaiyur Camp Road ICICI Bank at 12.00 noon and recordedhis voluntary statement in the presence of P.W.7 and another witness.He brought the accused to the police station and remanded him tojudicial custody. He examined the other witnesses and recorded theirstatements. He thereafter handed over the investigation to P.W.13, theincumbent Inspector of Police of Peerkankaranai Police Station. 11. P.W.13 took up investigation on 27.7.2004. He scrutinised thefile and satisfied himself with the investigation done by P.Ws.11 & 12.He thereafter examined the Head Constable and the post-mortem doctor-P.W.10 and recorded their statements. After completing investigation,he laid the final report on 12.10.2004 against the accused before theCourt for the offence under Section 302 IPC. 12. Before the trial Court, the prosecution examined 13 witnesses,marked 17 exhibits and produced 8 material objects to prove the chargeagainst the accused. 13. When the accused was questioned under Section 313 of theCriminal Procedure Code as to the incriminating materials appearingagainst him, he denied each and every incriminating material as false.No witness was examined and no document was marked on the side of thedefence. However, the learned trial Judge found the accused guilty,convicted and sentenced him for the offence as stated earlier.14. Mr.R.Sankarasubbu, learned counsel appearing for the accusedhas submitted that it is purely a case of circumstantial evidence, asthere is no eye-witness to the occurrence. According to the learnedcounsel, the two circumstances namely, the dying declaration and thelast seen theory as spoken to by P.W.3 are not sufficient to hold theaccused guilty of the offence. https://hcservices.ecourts.gov.in/hcservices/

15. So far as the last seen theory is concerned, the learnedcounsel would submit that though P.W.3 has spoken for having seen theaccused on the evening of the date of occurrence and he also smeltkerosene odour on the clothes of the accused, when questioned, theaccused did not reply and further the accused took bath in a nearbywater tank. Thereafter, P.W.3 went to the house of the deceased andfound the deceased ablaze. He tried to douse the fire by removing hislungi and rolling the same around the body of the deceased. Thereafter,he took the deceased to an auto-rickshaw stand, from where he was takento the hospital by P.W.1. The learned counsel would submit that P.W.3has been introduced only to prove additional circumstance, as he wasexamined by the Investigating Officer only after four days of theoccurrence when his statement under Section 161 Cr.P.C., was recorded.He would also submit that though P.W.3 has spoken about the panchayatboard President of Meppedu village for having seen himself and thedeceased in the auto-rickshaw stand, the said President has not beenexamined. The failure on the part of the prosecution to examine thesaid President throws a serious doubt about the presence of P.W.3 eitherin the scene of occurrence or his attempt to save the life of thedeceased or his version as to taking the deceased to the auto-rickshawstand. Further, the driver of the auto-rickshaw was not examined, againthrowing a serious doubt about the presence of P.W.3 in the scene ofoccurrence as spoken to by him. Hence the evidence of P.W.3 cannot bebelieved. 16. So far as the next circumstance namely, the dying declarationis concerned, the learned counsel would submit that the said dyingdeclaration cannot be believed. According to the learned counsel, it isthe case of the prosecution that the deceased was first taken to theChromepet Government Hospital and thereafter to the Government KilpaukMedical College & Hospital and was admitted by her son, P.W.1. Theprosecution story is that when the IX Metropolitan Magistrate, P.W.8made an attempt to record the dying declaration of the deceased, thedeceased was not in a fit state of mind to give such a declaration, ascertified by one Dr.Nirmala. On the other hand, the accident register,Ex.P-16 shows that the patient was brought conscious and well orientedwhile she was brought to the hospital by P.W.1. In these circumstances,it should be presumed that the deceased had already given a dyingdeclaration to the doctor at Chromepet Government Hospital, but the samehas been suppressed by the prosecution. Further the alleged doctor whohas certified as to the mental state of mind of the deceased has alsonot been examined, which is fatal to the prosecution case. He would alsosubmit that the initial dying declaration said to have been given by thedeceased to the doctor at about 9.30 p.m., was suppressed, as the saiddoctor has not been examined. The non examination of the doctor isfatal to the prosecution case and in support of the said submission, thelearned counsel would rely upon the judgment of the Apex Court in JainKaran v. State of Delhi (NCT) (1999 SCC (Crl.) 1385). In the absence ofany evidence to show at what point of time the deceased regainedconsciousness to give a declaration, the subsequent recording of dyingdeclaration, Ex.P-5 by P.W.8, the IX Metropolitan Magistrate in thepresence of P.W.9-doctor, who issued the certificate under Exs.P-7 andP-8 cannot be believed. https://hcservices.ecourts.gov.in/hcservices/

17. Further, the learned counsel would submit that the Magistratehas not ensured as to whether the deceased was in a fit state of mind togive the dying declaration. In support of the said submission, thelearned counsel relied upon the judgment of the Apex Court in LallubhaiDevchand Shah v. State of Gujarat (1971) 3 SCC 767.18. He would further submit that as the deceased was taken to thehospital by P.W.1, her son, who was with her right from the beginningtill she was declared dead on the next day, there is every possibilityof tutoring the deceased to falsely implicate the accused. In supportof the said submission, the learned counsel would rely upon the judgmentof the Apex Court in K.Ramachandra Reddy and another v. The PublicProsecutor (1976 SCC (Crl.) 473). 19. Further, the learned counsel would submit that though thedying declaration is entitled to great weight, as the accused does nothave an opportunity to cross-examine the person who gave suchdeclaration, the Court must insist that the dying declaration to be ofsuch nature as to inspire full confidence of Court in its correctness.The learned counsel would submit that on the facts of this case, theprosecution has not let in any evidence as to how and when the deceasedregained consciousness, especially when the Magistrate, who visited thehospital earlier, found that the deceased was not conscious. Thereafter,he was informed to come to the hospital to record the dying declarationas the deceased regained consciousness. In support of the saidsubmission, the learned counsel would rely upon the judgment of the ApexCourt in Mohan Lal and others v. State of Haryana (2007 (1) MWN (Crl.)194).20. Finally the learned counsel would submit that the medicalevidence also does not support the case of the prosecution, as theprosecution case is that the accused poured kerosene on the deceased andset her ablaze and if that be so, certainly, the scalp hair of thedeceased could have been burnt, but the post-mortem certificate, Ex.P-9shows that there was infected superficial burns seen over the face,neck, both sides of upper part of chest front and back of both upperlimbs upper part of back and scapular region and part of middle of leftthigh. Except the above injuries, no other injuries were noticed by thepost-mortem doctor, P.W.10. In support of the said submission, thelearned counsel would rely upon the judgment of the Apex Court inTarun alias Gautam Mukherjee v. State of West Bengal (2003 SCC (Crl.)1052).21. On the other hand, Mr.P.Kumaresan, the learned AdditionalPublic Prosecutor would submit that P.W.3 is an independent witness.There is nothing to suggest as to why he should falsely implicate theaccused. His evidence is quite natural, as he has deposed that when hesaw the accused just immediately after the occurrence i.e., on theevening of 10.7.2004, he smelt kerosene odour in his clothes and when heasked the accused about the same, the accused did not reply. To concealthe offence, the accused also took bath in a nearby tank. On suspicion,P.W.3 went to the house and found the deceased ablaze and thereafterremoved his lungi and tried to save her life and thereafter he took thedeceased to an auto-rickshaw stand and by that time, as P.W.1 came https://hcservices.ecourts.gov.in/hcservices/ there, he sent the deceased to the hospital along with P.W.1. Ofcourse, the President of Meppedu village who was present at the auto-rickshaw stand and who witnessed the above, was not examined. Inasmuchas the prosecution has proved its case as to the last seen theory asspoken to by P.W.3 as well as the dying declaration, the mere failure toexamine the President is not fatal to the prosecution case. Similarly,the failure on the part of the prosecution to examine the auto driver isalso not fatal to the prosecution case inasmuch as the fact that thedeceased was taken firstly to the Chromepet Government Hospital and wasadmitted. 22. So far as the next contention as to the dying declaration isconcerned, the learned Additional Public Prosecutor would submit thatwhen the deceased was taken to Chromepet Government Hospital, she was ina state of mind to speak and therefore she informed P.W.1 that when theaccused made an attempt to sexually harass her and when she refused, hepoured kerosene and set her ablaze. Thereafter, when an intimation wasgiven to the IX Metropolitan Magistrate, P.W.8, he came around 2.45a.m., to the hospital on 11.7.2004 and as he found the deceased wasunconscious, he therefore could not record her declaration. When heagain received subsequent intimation, he went to the hospital at 8.30a.m., and as he found the deceased was in a fit state of mind to givethe declaration and that the doctor-P.W.9 also certified to the saideffect, he recorded the dying declaration. Hence the contention of thelearned counsel for the accused merits no acceptance, as could be seenfrom the fact that the Magistrate did not record the dying declarationwhen he visited the hospital at 2.30 a.m., initially and he recordedsuch a declaration only after ascertaining the fitness of the deceasedat 8.30 a.m. He would also submit that though P.W.1 was present withthe deceased, the accused has not even suggested P.W.1 that there was apossibility of tutoring of the deceased and in the absence of suchdefence, the accused is not entitled to raise the said contention forthe first time in the appeal. Moreover, he would submit that thedeceased was first taken to Chromepet Government Hospital and thereafterto Government Kilpauk Medical College & Hospital and she was sufferingon account of burn injuries and in the normal course and under the abovecircumstance, one cannot expect any tutoring is possible and could bemade. He would also submit that equally the non examination of thedoctor who has first seen the deceased in Chromepet Government Hospitalto speak about the condition of the deceased cannot in any way shatterthe prosecution version when the dying declaration is supported by themedical evidence namely, the injuries found on the body of the deceasedduring the post-mortem. He would also submit that the dying declarationshould be given great weight and in the absence of any other material toshow that the dying declaration, Ex.P-5 cannot be believed, theprosecution case must be accepted in toto. He would further submit thatone more circumstance put against the accused is the preparation of theobservation mahazar, Ex.P-2 in which the unburnt broken parts of thestove were found in the scene of occurrence, falsifying the case of thedefence that it was an accidental burst of stove. To support the saidsubmission, the learned Additional Public Prosecutor would rely upon thejudgments of the Apex Court in P.V.Radhakrishna v. State of Karnataka(2003 SCC (Crl.) 1679) and in Sohan Lal alias Sohan Singh and others v.State of Punjab (2004 SCC (Crl.) 226). https://hcservices.ecourts.gov.in/hcservices/

23. We have given our anxious and careful consideration to therival submissions made on either side. We have also perused the entirematerials placed before us and also gone through the judgment of thelearned trial Judge. 24. So far as the challenge to the last seen theory is concerned,firstly we must keep it in mind that P.W.3 is an independent witness andhe has no motive against the accused. Except a faint attempt bysuggesting that he had animosity against the accused, we could see nomaterial to come to the conclusion that there was animosity on the partof P.W.3 to falsely implicate the accused. A perusal of the entireevidence of P.W.3 would show that it is quite natural. We could also seethe normal conduct of a person to attempt to save the life of anotherperson who is dying of burn injuries. P.W.3 has categorically deposedthat he saw the accused on the evening of the fateful day and he smeltkerosene odour on his clothes. He has also spoken about the attemptmade by the accused to clear the odour by taking bath in a nearby tank.His evidence is also quite natural, as he has spoken that when hequestioned the accused as to the smell of kerosene on his person, theaccused did not respond to such question. Instead the accused had onlytried to conceal the offence by taking bath to remove the odour from theclothes. Suspecting some untoward incident, P.W.3 rushed to the house ofthe deceased and saw her ablaze and therefore he immediately removed hislungi and tried to save the life of the deceased. Thereafter, he tookthe deceased to an auto-rickshaw stand and as P.W.1, the son of thedeceased, also came there, he made arrangements for the deceased to betaken to the hospital. We find absolutely no reason to discard theevidence of P.W.3. His evidence cannot be disbelieved mainly on theground that the prosecution has failed to examine the President ofMeppedu village as well as the auto driver. Though the prosecution caserests only on circumstantial evidence, in the wake of the evidence ofP.W.1 coupled with the evidence of P.W.3 and the fact hat the deceasedwas admitted in the hospital where she succumbed to injuries would go along way to support of the case of the prosecution and in thesecircumstances, it is not necessary for the prosecution to examine allthe persons who came across the occurrence and the subsequent events.If the case of the prosecution is viewed from that angle, we are of theconsidered view that mere failure to examine the President of Meppeduvillage and the auto driver would in any way affect the prosecutioncase. The evidence of P.W.3 is further attacked on the ground that hisstatement under S.161 Cr.P.C., has been recorded after four days. Thereis no controversy that the occurrence had taken place on 10.7.2004 andthe statement of P.W.3 under S.161 Cr.P.C., was recorded only on14.7.2004. Initially the case was registered only for the offence underSection 307 IPC and the same was altered only on the subsequent dayafter the death of the deceased. In that process, the InvestigatingOfficer has lost two days, as he was frequently making arrangements forrecording the dying declaration. Thereafter, the investigation continuedand in the course of examination, delay of two days had occurred. In ourview, a mere delay of two days in recording the S.161 Cr.P.C., statementby itself would not establish a falsity in the prosecution case,especially when the prosecution has heavily relied upon the dyingdeclaration. For all these reasons, we reject the contention of thelearned counsel for accused in challenging the evidence of P.W.3. https://hcservices.ecourts.gov.in/hcservices/

25. So far as the challenge to the dying declaration is concerned,it has been repeatedly held that the dying declaration is entitled togreat weight and it cannot be brushed aside unless strong grounds aremade out that such a dying declaration was the result of either tutoringor prompting or a product of imagination. It has been alsoauthoritatively held that the dying declaration can be the sole basisfor conviction in the event such dying declaration inspires fullconfidence of the Court in its correctness.26. In Mohan Lal's case reported in 2007 (1) MWN (Crl.) 194, theApex Court, on a detailed analysis of the law, has held that when thedying declaration is trust-worthy and reliable, it has to be accepted.One of the basic conditions would be that before recording the dyingdeclaration, it must be ensured that the deceased was in a fit state ofmind and was conscious to give such declaration. This law is laid downby the Apex Court in the judgment in Paparambaka Rosamma and others v.State of Andhra Pradesh (1999 SCC (Crl.) 1361). 27. Much was argued as to the failure on the part of theMetropolitan Magistrate-P.W.8 in ascertaining the fitness of thedeceased to give the dying declaration. We have carefully perused Ex.P-5, the dying declaration as well as the evidence of P.W.8, theMetropolitan Magistrate who recorded the dying declaration. P.W.8 hasstated that he received a requisition from C-7 Peerkankaranai PoliceStation at about 2.30 a.m., on 11.7.2004 to record the dying declarationof the deceased. Within 15 minutes, he reached the hospital only to findthat the deceased by then had become unconscious. Therefore he did notrecord the declaration. This circumstance goes to show that theMagistrate had first ensured as to the fitness of the deceased to givesuch declaration. On seeing that the deceased was not in a fit state ofmind to give such declaration, he went back and again came to thehospital at 8.30 a.m., when he received subsequent intimation andrecorded the dying declaration. We find absolutely no substance in theargument of the learned counsel for accused that the Magistrate has notascertained the fitness of the deceased to give such declaration fromthe above facts narrated. Ex.P-5 would show that before the same wasrecorded, a certificate was issued by Dr.S.R.Vijayalakshmi, P.W.9 to thefollowing effect under Ex.P-7 namely, "though talking with a hoarsevoice patient is conscious and oriented and is fit to give statement".Thereafter, the Magistrate-P.W.9 has put the following questions (whichwe have translated) as to the name of the deceased, her husband's name,age, the occupation of husband, residence address, the identity of theMagistrate and as to the occurrence. The deceased had answered all thequestions but with hoarse voice. From the above, it is seen that thepatient was conscious before the dying declaration was recorded. TheMagistrate has also ensured as to the fitness of the deceased to givesuch declaration even after the dying declaration was recorded. Thefurther certificate under Ex.P-8 was obtained from P.W.9-doctor, whereinit is specifically stated that the patient was conscious and orientedthroughout the period of giving the statement and no outsiders,relatives or police were allowed at that time. The evidence of P.W.8-Magistrate, who recorded the dying declaration, also shows that heensured the fit state of mind of the deceased to give such a statementfrom the answers given by the deceased to the questions. We have https://hcservices.ecourts.gov.in/hcservices/ absolutely no reason to discard the evidence of P.W.8, the Magistrate.The evidence of the Magistrate is also corroborated by the evidence ofthe doctor-P.W.9, as she has stated that she examined the deceased andwas satisfied as to her fitness to give the declaration before recordingand even after the completion. In view of the above factual background,the judgment relied upon by the learned counsel for accused in LallubhaiDevchand Shah's case, (1971) 3 SCC 767 (supra) is of no use to theaccused, as in the said judgment the Apex Court has factually found thefailure on the part of the Judicial Magistrate to ensure the fit stateof mind of the deceased to give such declaration. In this context, thejudgment of the Apex Court in P.V.Radhakrishna's case relied upon by thelearned Additional Public Prosecutor could be usefully referred to. Inparagraphs 11 & 12, it has been observed as follows:-"This is a case where the basis of conviction ofthe accused is the dying declaration. The situation inwhich a person is on the deathbed is so solemn andserene when he is dying that the grave position inwhich he is placed, is the reason in law to accept theveracity of his statement. It is for this reason therequirements of oath and cross-examination aredispensed with. Besides, should the dying declarationbe excluded it will result in miscarriage of justice,because the victim being generally the only eyewitnessin a serious crime, the exclusion of the statementwould leave the court without a scrap of evidence.Though a dying declaration is entitled to greatweight, it is worthwhile to note that the accused hasno power of cross examination. Such a power isessential for eliciting the truth as an obligation ofoath could be. This is the reason the court alsoinsists that the dying declaration should be of such anature as to inspire full confidence of the court inits correctness. The court has to be on guard thatthe statement of the deceased was not as a result ofeither tutoring, or prompting or a product ofimagination. The court must be further satisfied thatthe deceased was in a fit state of mind after a clearopportunity to observe and identify the assailant.Once the court is satisfied that the declaration wastrue and voluntary, undoubtedly, it can base itsconviction without any further corroboration. Itcannot be laid down as an absolute rule of law thatthe dying declaration cannot form the sole basis ofconviction unless it is corroborated. The rulerequiring corroboration is merely a rule ofprudence...."28. The dying declaration is questioned on the ground that therewas a possibility of tutoring the deceased. The evidence of P.W.9-doctoris categorical that at the time the dying declaration was recorded, nooutsiders, relatives or police were allowed as could be seen from thecertificate issued by P.W.9 under Ex.P-8. Of course, P.W.1 claims tohave accompanied the deceased immediately after the occurrence till the https://hcservices.ecourts.gov.in/hcservices/ dying declaration, Ex.P-5 was recorded. The evidence as to his presencecould be considered in the sense that he being the son of the deceasedwould say that he was present with his mother throughout in thehospital. For determining the fact as to whether he was present when thedying declaration was recorded by the Magistrate, the evidence of P.W.8,the Magistrate who has recorded the declaration and the doctor, P.W.9who has issued the certificate as to the fitness are relevant. P.W.9 hasspecifically deposed that no outsiders, relatives or police were allowedat that time. To decide such an issue, much reliance should be attachedto the evidence of the Magistrate as well as the doctor, who could verywell speak of the presence of other persons at the time of recording thedying declaration. That apart, the evidence of these witnesses were notcontroverted even by suggesting that there was a possibility of tutoringby P.W.1 except a general suggestion. Hence the contention that thedeceased was tutored by P.W.1 cannot be accepted on the facts of thiscase. The Apex Court in Jai Karan's case (supra) has laid down thefollowing law in paragraph 10:"A dying declaration is admissible in evidenceon the 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 the commissionof a serious crime. It is this premise which isconsidered strong enough to set off the need that themaker of the statement should state so on oath and becross-examined by the person who is sought to beimplicated. In order that a dying declaration mayform the sole basis for conviction without the needfor independent corroboration, it must be shown thatthe person stating it had the opportunity ofidentifying the person implicated and is thoroughlyreliable and free from blemish. If, in the facts andcircumstances of the case, it is found that the makerof the statement was in a fit state of mind and hadvoluntarily made the statement on the basis ofpersonal knowledge without being influenced by othersand the court on a strict scrutiny finds it to bereliable, there is no rule of law or even of prudencethat such a reliable piece of evidence cannot be actedupon unless it is corroborated. A dying declarationis an independent piece of evidence like any otherpiece of evidence -- neither extra strong nor weak --and can be acted upon without corroboration if it isfound to be otherwise true and reliable."29. Of course, in K.Ramachandra Reddy's case (supra), the ApexCourt has held that the dying declaration must be voluntary and if theCourt comes to the conclusion that there was a possibility of tutoring,it cannot be relied upon. However, in view of our discussion namely,that there had been no possibility of tutoring the deceased, the saidjudgment is not applicable to the facts of this case. Moreover, thetutoring must be the result of an interested party and there must besome supportive materials to sustain the plea of tutoring. In this https://hcservices.ecourts.gov.in/hcservices/ context, P.W.3, who took the deceased from the place of occurrence tothe auto-rickshaw stand, has not spoken anything about the statementmade by the deceased to him or any enquiry made by him with thedeceased. There was no possibility of any tutoring at the instance ofP.W.3, who is an independent witness and who does not have animositywith the accused. The next person to accompany the deceased was P.W.1.His evidence is also categorical that the deceased was not in fit stateof mind to speak when she was taken to the hospital and she told theoccurrence only for the first time in the hospital. Thereafter, shebecame unconscious. Even when the Magistrate came at 2.30 a.m., on11.7.2004, he could not record the dying declaration as the condition ofthe deceased was not conducive to give such declaration. Thereafter,the deceased regained consciousness only around 8.30 a.m., when thedying declaration was recorded. There is absolutely no material to showthat there was occasion for P.W.1 to tutor the deceased. Further, therewas no suggestion put to P.W.1 on the alleged tutoring. Initially thedeceased was not in stable condition, but regained consciousnessthereafter and then became unconscious and thereafter regainedconsciousness. This would show that she was fighting for her life. Inthese circumstances, even if P.W.1 was present throughout with thedeceased, tutoring is not possible. The contention that there was apossibility of tutoring is only a misconception without any backing.Hence we reject the said contention also. 30. The next contention of the learned counsel for accused is thatthe doctor who saw the deceased initially at Chromepet GovernmentHospital was not examined. His examination may through much light as tothe version of the deceased especially when it is the case of theprosecution that the deceased had given a statement to the said doctor.The failure on the part of the prosecution to examine the said doctorthrows serious doubt about the subsequent dying declaration. Thisargument should also fall to the ground for the simple reason thatimmediately when the deceased was taken to Chromepet GovernmentHospital, of course the deceased has stated to the doctor that theaccused had poured kerosene and set her ablaze. On seeing hercondition, the doctor advised the deceased to be admitted in GovernmentKilpauk Medical College & Hospital. Except the above advice, it appearsthat he has not given any treatment and has played only a minor role ofadvising the deceased to be taken to KMC hospital. When the prosecutionhas established the dying declaration as voluntary and was recorded inthe manner known to law by following the procedures and such dyingdeclaration has inspired the full confidence of Court, merely becausethe doctor who has advised the deceased to be taken to KMC hospital wasnot examined, the non examination of the doctor will not throw a seriousdoubt on the dying declaration. We must keep it in mind that there isno contradiction in the statements of the deceased at different point oftime. Even P.W.1 has deposed that when the deceased was brought toChromepet Government Hospital, she had only stated that the accused wasthe cause for the burn injuries. The same version was reiterated by thedeceased before the Magistrate as well. In these circumstances, thesubmission of the learned counsel that the failure on the part of theprosecution to examine the doctor at Chrompet Government Hospital throwssuspicion to the dying declaration cannot be accepted. https://hcservices.ecourts.gov.in/hcservices/

31. Lastly it was contended that the injuries as found during thepost-mortem did not tally with the prosecution version. The learnedcounsel would submit that the scalp hairs of the deceased were notburnt, which would falsify the prosecution version of pouring keroseneon the body of the deceased and set her ablaze. In our view, the saidsubmission is also on a total misconception. The medical evidencenamely, Ex.P-9, the post-mortem certificate in fact supports the case ofthe prosecution while it narrates the injuries. The injuries as foundon the body of the deceased have been already extracted and from thesame, it could be seen that those injuries sustained by the deceasedwere due to the pouring of kerosene on the body and set her ablaze. Itneed not necessarily be in all cases that the hair should also be burnt.Further the opinion of the doctor as to the cause of death is that thedeceased died of complication of burns. Hence the medical evidencefully supports the case of the prosecution and the contention of theaccused that it does not support the case of the prosecution is notacceptable. 32. As we have believed the dying declaration, Ex.P-5 recorded byP.W.8, Metropolitan Magistrate, the conviction based upon the sole dyingdeclaration could be even sustained. Further, in this case, in additionto the dying declaration, one more circumstance put forth by theprosecution is the last seen theory as spoken to by P.W.3. There is yetanother circumstance, namely, the observation mahazar, Ex.P-2. If it isa case of accident, certainly, the broken parts of the stove should havealso been burnt fully or partly to indicate the accident. Further,Ex.P-2 shows the presence of unburnt broken parts of the stove. Theobservation mahazar also shows the presence of aluminium bottom of thekerosene stove without there being any indication as to the fire in it.The above facts would show that after the accused had poured kerosene onthe deceased, he had thrown the stove in the place of occurrence and ranaway. If it is a case of accident, the broken parts without their beinga symptom of fire could not have been found. Hence we are of theconsidered view that the defence argument namely, it is a case ofaccident cannot be accepted. 33. For all the above reasons, we find absolutely no merit in anyof the contentions made on behalf of the accused and consequently, we donot find any reason to interfere with the conviction and sentenceimposed on the accused by the judgment under appeal. Accordingly, thecriminal appeal fails and it is dismissed. ssSd/-Asst.Registrar/true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal Sessions Judge, Chengalpattu2. The Superintendent, Central Prison, Vellore 3. The Public Prosecutor, High Court, Madras4. The District Collector, Chengalpattu5. The Director General of Police, Chennai6 .The Inspector of Police, Peerkankaranai Police Station, Kancheepuram DistrictAKR(CO)DCP/28.1Crl.A.No.86 of 2007