Shahul Hameed v. The State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.3.2009CORAMTHE HONOURABLE MR. JUSTICE C.NAGAPPANandTHE HONOURABLE MR. JUSTICE T.SUDANTHIRAMCriminal Appeal No.955 of 2007Shahul Hameed.. Appellant/AccusedVs.The State, represented byits Inspector of Police,H-6, R.K.Nagar Police Station,Chennai.(Crime No.621/2006).. Respondent/ComplainantPrayer: Appeal against the judgment of conviction and sentenceimposed on the accused in S.C.No.258 of 2007, dated 28.9.2007, on thefile of Additional District and Sessions Judge, Fast TrackCourt-V, Chennai. For Appellant :: Mr.A.Sirajudeen for M/s.Siraj & Siraj For Respondent :: Mr. V.R.Balasubramaniam Additional Public ProsecutorJ U D G M E N T (Judgment of the Court was made by C. NAGAPPAN, J.)The appellant-Shahul Hameed is the sole accused in SessionsCase No.258 of 2007 on the file of Additional District and SessionsJudge, Fast Track Court-V, Chennai and he has preferred this appealchallenging the conviction and sentence imposed on him for theoffence under Section 302 IPC. For the sake of convenience, inthis Judgment, the appellant will be referred to as accused. 2. Charge under Section 302 IPC was framed against theaccused on the allegation that during the occurrence, he pouredkerosene on Selvameri and set fire, resulting in her death. Thelearned Additional Sessions Judge found the accused guilty of theoffence under Section 302 IPC and convicted and sentenced him toundergo life imprisonment and also to pay a fine of Rs.1000/-, in https://hcservices.ecourts.gov.in/hcservices/ default, to undergo Rigorous Imprisonment for six months. 3. To prove the charge, the prosecution examined P.Ws.1to 14 and marked Exs.P1 to P13 and M.Os.1 to 9. 4. The case of the prosecution, as could be discerned fromoral and documentary evidence, can be briefly summarised as follows. The accused-Shahul Hameed was living with Selvameri in oneof the portions of the house owned by P.W.1-Chandrasekaran. P.W.2-Gajendran was living in the neighbouring portion of the same house.On 7.8.2006, in the night, Selvameri asked the accused to bringbiryani and the accused demanded money and Selvameri replied that shehad no money and the accused went out and brought biryani and brandyat about 10.30 pm and compelled Selvameri to drink the same andSelvameri refused to consume it on the ground that she was unwell andthe accused poured kerosene from the stove on Selvameri and set fireon her by lighting a matchstick and snatched away the cellphone fromher and left the house. Selvameri came out of the house by cryingaloud and fell down on the verandah with burns and on hearing thenoise, P.Ws.1 and 2 came there and Selvameri told them that theaccused poured kerosene and set fire on her. P.W.1-Chandrasekaranpoured water on her and P.W.2-Gajendran brought the Auto and both ofthem took Selvameri to Kilpauk Medical College Hospital. P.W.10-Dr.D.Jason Philip examined Selvameri at 00.30 am on8.8.2006 at K.M.C.Hospital and Selvameri told him that she wasset on fire by her husband at about 11.45 pm on 7.8.2006.P.W.10-Dr.D.Jason Philip found 20% burns on her body and admitted heras in-patient in burns ward in the hospital. Ex.P6 is the AccidentRegister issued by him. P.W.11-Dr.V.Jeyaraman examined Selvameriat 2 am on 8.8.2006 and found 33% burn injuries on her body and hetreated her. P.W.13-Sub Inspector Pattabiraman, on 8.8.2006, receivedintimation from K.M.C. Hospital and went and saw Selvameri asin-patient in the hospital and he recorded Ex.P1-statement given byher in the presence of P.W.3-Shanthi, her elder sister and obtainedleft toe impression in it and returned to H-6, R.K.Nagar PoliceStation and registered a case in Crime No.621 of 2006 under Section307 IPC and prepared Ex.P10-First Information Report and sent thesame to the Inspector.P.W.14-Inspector Karunakaran took up the investigation and wentto K.M.C. Hospital at 9.45 am and found her conscious and herecorded the statement of Selvameri. He went to the occurrenceplace at 10 am and prepared Ex.P2-Observation Mahazarin the presence of P.W.4-Kumar and another and heprepared Ex.P11-Rough Sketch. He seized M.Os.1 to 6 from theoccurrence place in the presence of P.W.4-Kumar and another under https://hcservices.ecourts.gov.in/hcservices/ Ex.P3-mahazar and obtained the signature of the witnesses in it. Hegave requisition to record the dying declaration of Selvameri.P.W.7-Judicial Magistrate Mr.Arunachalam went to K.M.C.Hospitaland saw Selvameri in the burns ward and found her conscious and in afit state of mind. P.W.11-Dr.Jeyaraman certified that Selvameriwas conscious, well oriented and in a fit state of mind to givestatement. P.W.7-Judicial Magistrate Mr.Arunachalam, in the presenceof P.W.11-Dr.Jeyaraman, recorded her Ex.P4-statement at 11.30 amand P.W.11-Dr.Jeyaraman also certified that Selvameri was fullyconscious, well oriented and in a fit state of mind to give statementthroughout the recording of her statement and issuedEx.P8-Certificate. P.W.7-Judicial Magistrate Mr.Arunachalamcertified that burn injuries were present in the hands and fingers ofSelvameri and hence the left toe impression was obtained in thepresence of P.W.11-Dr.Jeyaraman. P.W.14-Inspector Karunakaran examined P.W.1-Chandrasekar, P.W.2-Gajendran, P.W.3-Shanthi and some more witnesses and recorded theirstatements and he arrested the accused at 1.00 pm on 8.8.2006 nearthe IOC Bus stop, Tondiarpet and recorded the confession statementgiven by the accused in the presence of P.W.8-Chitrarasu andDurairaj and he subjected the accused to judicial remand on the sameday. He also examined P.W.8-Chitrarasu, Durairaj and some morewitnesses and recorded their statements. He received informationthat Selvameri died at 5.25 pm on 14.8.2006 and altered thecase into one under Section 302 IPC and prepared Ex.P12-ExpressReport and despatched the same to the Court and he went to K.M.C.Hospital on 15.8.2006 and conducted inquest on the body of Selvameribetween 8 am and 10.30 am in the presence of panchayatars andprepared Ex.P13-Inquest Report. He sent the body ofdeceased Selvameri for post-mortem through P.W.5-Head ConstableVaseekaran. P.W.12-Dr.Udayasankar conducted post-mortem on the body ofSelvameri at 2.40 pm on 15.8.2006 and found the following.Appearances found at the post-mortem:Moderately nourished, symmetrical 31 years old female bodylies on back.External Injuries: Deep infected wounds seen over the abdomen, boththighs, upto the knee in front, right palm, left arm front andback from elbow to the palm. Right and left pectoral region, leftside of the neck and left shoulder. 33% burns – Septicaemia.Heart: Normal, Lungs: Bluish, Hyoid Bone:Intact. Larynx and Trachea: Normal, Stomach: 100 ml ofcoffee coloured fluid present. Liver, Spleen, Kidneys:Normal C/s congested. Bladder: 100 ml turbid urine https://hcservices.ecourts.gov.in/hcservices/ present. Uterus: Empty, Pelvis, Skull, Brain : Normal."He gave opinion that the deceased would appear to have died ofcomplications of burns. (33% BURNS SEPTICAEMIA) and issued Ex.P9-Post-mortem Certificate. P.W.14-Inspector Karunakaran examined P.W.12-Dr.Udayasankar and further examined P.W.1-Chandrasekaran, P.W.2-Gajendran and some more witnesses and recorded their statements. Healso examined P.W.9-Dr.Anjelin Selvaraj on 14.8.2006 and recorded herstatement and he completed the investigation and filed final reportagainst the accused. 5. The accused was questioned under Section 313 Cr.P.Cand he denied complicity and he examined himself as D.W.1 and hisfirst wife Mumtaj as D.W.2 on his side. 6. The learned Additional Sessions Judge held that thecharge under Section 302 IPC against the accused has been proved andconvicted and sentenced him as stated above. Challenging the same,the accused has preferred this appeal.7. Mr. Sirajudeen, learned counsel for the appellant,submits that the prosecution has not proved the guilt of the accusedbeyond reasonable doubt and in any event there is no intention ofcausing death of Selvameri and while deprived of self-control bysudden provocation, he has acted and Exception (1) to Section300 IPC is applicable and further there was sudden quarrel at thetime of occurrence between the husband and wife and withoutpremeditation, the accused has acted and Exception (4) to Section 300IPC also is to be applied and moreover, as per the medical evidence,the deceased died of complications of burns due to Septicaemia andthe act of the accused would only be culpable homicide not amountingto murder and in this regard he relies on the decision of the BombayHigh Court in SADASHIV DHONDIRAM PANDIT v.. THE STATE OFMAHARASHTRA [2000 CRI.L.J. 4880]. 8. Per contra, Mr. V.R.Balasubramaniam, learned AdditionalPublic Prosecutor, submits that Selvameri has stated to theneighbours, her sister, the doctor, who admitted her in the hospital,the Sub-Inspector of Police, who examined her, and also the learnedJudicial Magistrate who enquired her, that the accused burnt her bypouring kerosene during the occurrence and there are three writtendying declarations and other oral dying declarations implicatingthe accused. The learned Additional Public Prosecutor furthersubmits that there was no provocation made by the deceased at thetime of occurrence and it is only the accused who compelled thedeceased to consume liquor and hence, Exception (1) to Section 300IPC may not be applicable and there was no sudden quarrel during theoccurrence and hence, the accused took undue advantage by setting her https://hcservices.ecourts.gov.in/hcservices/ on fire by pouring kerosene and hence, Exception (4) is also notapplicable and though the deceased developed Septicaemia, it couldnot affect the conclusion that the burn injuries are the direct causeof her death and he relies on the recent decision of the Apex Courtin ANTRAM v.. STATE OF MAHARASHTRA [AIR 2008 SC 409 : (2007) 13SCC 356]9. In the light of the rival submissions, we examined thematerial records carefully. The prosecution case rests oncircumstantial evidence based on a number of dying declarations givenby Selvameri about the occurrence. Accused Shahul Hameed is thesecond husband of Selvameri and admittedly, they were living togetherin a portion of the house owned by P.W.1 Chandrasekar and P.W.2Gajendran is the neighbour. According to P.Ws.1 and 2, on 7.8.2006,at about 11.00 p.m., they heard the loud screaming voice of Selvameriand on rushing to her house, they found Selvameri with burn injurieslying on the veranda and they asked her as to what happened andSelvameri told them that her husband, the accused, poured keroseneand set fire on her. P.W.2 Gajendran brought the auto and P.Ws.1 and2 took injured Selvameri to Government Kilpauk Medical College,Hospital. P.W.10 Dr. Jason Philip examined Selvameri at 00.30 hrs on8.8.2006 in K.M.C.Hospital, and she has testified that Selvameri toldher that her husband poured kerosene and set fire on her at 11.45p.m. in her house. The Doctor found 20% burn injuries on Selvameriand admitted her as in-patient in Burns ward and Ex.P6 is theAccident Register copy. Thereafter, P.W.11 Dr.Jeyaraman treated herat 2.00 a.m. on 8.8.2006 in the burns ward. According to P.W.11Jayaraman, Selvameri told him that the person residing with herpoured kerosene and set fire on her in the house at about 11.00 p.m.on 7.8.2006 and he found 33% burn injuries on the body of Selvameri.On receiving the intimation about admission, P.W.13 Sub InspectorPattabiraman went to K.M.C. Hospital and found Selvameri inconscious condition and recorded Ex.P1 Complaint given by her in thepresence of P.W.3 Shanthi and obtained the left toe impression ofSelvameri in the complaint and obtained the signature of P.W.3Shanthi as attesting witness in it. P.W.14 Inspector Karunakarantook up investigation and gave requisition to the learned JudicialMagistrate to record the dying declaration of Selvameri. P.W.7Judicial Magistrate Arunachalam has stated that he went to K.M.C.Hospital and found Selvameri conscious and in a fit state of mind andP.W.11 Dr. Jayaraman certified her fitness and he recorded Ex.P4Statement given by Selvameri and on account of the presence ofburn injuries in the hands and fingers, he obtained left toeimpression of Selvameri in it and P.W.11 Dr. Jayaraman also gaveEx.P8 Certificate in the proceedings that the patient was fullyconscious, well oriented and in a fit state of mind to give statementthroughout the recording of the statement.10. Selvameri in the written dying declarations in Exs.P1,P4 and P6 had clearly stated that during the occurrence, accused https://hcservices.ecourts.gov.in/hcservices/ Shahul Hameed compelled her to drink brandy and when she refused, hepoured kerosene and set fire on her and she sustained burn injuries.There is no discrepancy in the above dying declarations and they areconsistent and there is absolutely no reason to discard the same.Besides the oral dying declarations spoken to by the witnesses alsodeserve acceptance. Hence, it is clear that it is the accused whopoured kerosene on Selvameri and set fire on her during theoccurrence resulting in the burn injuries.11. It has to be seen as to whether Exceptions 1 and 4 toSection 300 IPC are applicable to the facts of the present case ascontended by the learned counsel for the appellant. During theoccurrence, the accused compelled Selvameri to drink brandy and sherefused to consume the same on the ground that she was unwell and onrefusal, the accused poured kerosene and set fire on her. There wasno provocation made by Selvameri and the contention of the learnedcounsel that the accused was provoked has no basis. Hence,Exception (1) to Section 300 IPC is not attracted.12. The other contention is that there was sudden quarrelduring the occurrence and the accused without any premeditation hadacted. Even though there seems to be a wordy quarrel between thehusband and wife at the time of occurrence, there was no fightbetween them and in any event it cannot be said that the accused hadnot taken any undue advantage since pouring kerosene and setting fireon the body is a cruel act. Therefore, exception (4) to Section 300IPC is not applicable.13. Selvameri was treated as in-patient in the burns wardfor 7 days and died on 14.8.2006. P.W.12 Post-mortem DoctorUdayasanker testified that the death has occurred due to Septicaemiaon account of burn injuries. Ex.P9 is the Post-mortem Certificateissued by him stating that the deceased would appear to have died ofcomplications of burns (33% Burns Septicaemia). From the medicalevidence it is clear that the deceased developed Septicaemia onaccount of burn injuries. That would not, in any event, affect theconclusion that the burn injuries are the direct cause of her deathsince Septicaemia is the direct result of injuries. 14. In the decision of the Bombay High Court (stated supra),relied on by the learned counsel for the appellant, the victimsuccumbed to her burns one month after the occurrence and theDivision Bench held that the act of the accused would fall underclause thirdly of Section 299 IPC and he was found guilty for theoffence under Section 304 (ii) IPC and sentence of seven yearsRigorous Imprisonment was imposed. The Division Bench has observedin the said decision that the accused committed an act with theknowledge, (in terms of clause thirdly of Section 299 IPC), that herdeath could be possible. In our view, merely because the act fallsunder clause thirdly of section 299 IPC, it cannot be said that https://hcservices.ecourts.gov.in/hcservices/ culpable homicide would not amount to murder.Section 300 IPC reads as follows:"Section 300. Murder. - Except in the cases hereinafterexcepted, culpable homicide is murder, if the act by which the deathis caused is done with the intention of causing death, or2ndly. - ...............3rdly. - ................4thly. - If the person committing the act knows that it isso imminently dangerous that it must, in all probability, cause deathor such bodily injury as is likely to cause death, and commits suchact without any excuse for incurring the risk of causing death orsuch injury as aforesaid." 15. Their Lordships of the Supreme Court in the recentdecision in ANTRAM v.. STATE OF MAHARASHTRA, referred to above,laid down that where death is caused by bodily injury, the person whocauses such bodily injury shall be deemed to have caused the death,although by resorting to proper medical care, the death might havebeen prevented. For better appreciation, the relevant portions ofthe judgment are extracted below -"12. In State of Haryana v. Pala and Ors. AIR 1996 SC 2962 :(1996) 8 SCC 51 it was noted as follows:"In answering the question whether a wound is dangerous to life,the danger must be assessed on the probable primary effects of theinjury. Such possibilities as the occurrence of tetanus orsepticaemia, later on, are not to be taken into consideration."13. In Sudershan Kumar v. State of Delhi AIR 1974 SC 2328 :(1975) 3 SCC 831 it was noted as follows:"The fact that the deceased lingered for about 12 days would not showthat the death was not the direct result of the act of the accused inthrowing acid on her. So also the fact that the deceased developedsymptoms of malaena and respiratory failure and they also contributedto her death could not in any way affect the conclusion that theinjuries caused by the acid burns were the direct cause of her death."14. As noted above, it was emphasized by learned counsel for theappellant that with proper medical care the deceased could havesurvived and therefore Section 302 IPC has no application. The pleaclearly overlooks Exception 2 to Section 299 IPC, which reads asfollows:"Exception 2. - Where death is caused by bodily injury, theperson who causes such bodily injury shall be deemed to have causedthe death, although by resorting to proper remedies and skilful https://hcservices.ecourts.gov.in/hcservices/ treatment the death might have been prevented."15. When the background facts are examined on the touchstone ofthe principles of law highlighted, the inevitable result is that theappeal is without merit, deserves dismissal, which we direct."16. In the present case, as already seen, the death ofSelvameri is due to burn injuries suffered and the accused had causedthe burn injuries. Hence, the act of the accused would amount tomurder.17. There are no merits in the appeal and the same isdismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarpbTo1. The Addl. Dist. & sessions Judge [Fast Track Court-V], Chennai.2. - Do - Through, the Principal Sessions Judge, Chennai.3. The Superintendent of Prison, Central Prison, 4. The Inspector of Police, H-6 R.K.Nagar Police Station, Chennai.5. The Public Prosecutor, High Court, Madras.6. The Section Officer, Criminal Section, High Court, Madras 104.7.The Director General of Police, Chennai-48.The District Collector, Chennai.1 CC To M/s.Siraj & Siraj., Advocate, SR NO.10451Crl.A.No. 955 of 2007sgl(co)pmk.15.4.2009.