Dharmalingam v. State by Inspector of Police All Women Police Station Bhavani, Erode District

BAIL SLIPThe 2nd appellant/3rd accused viz.Lakshmi was directed to bereleaed on bail in and by the order of this Court dt 11/12/2006 and madein Crl.Mp.No.1/06 in CRL.A.No.973/2006IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 1.4.2008CORAMTHE HONOURABLE MR.JUSTICE P.D.DINAKARANANDTHE HONOURABLE MR.JUSTICE R.REGUPATHICriminal Appeal No.973 of 20061. Dharmalingam2. Lakshmi .. Appellants Vs.State by Inspector of PoliceAll Women Police StationBhavani, Erode District. .. RespondentAppeal against the judgment dated 31.10.2006 made in S.C.No.68 of2005 on the file of learned Principal Sessions Judge, Erode.For Appellants: Mr.N.ManokaranFor Respondent : Mr.N.R.Elango Addl. Public ProsecutorJ U D G M E N T(Delivered by P.D.DINAKARAN,J.)Appellants, two in number, who are husband/A1 and mother-in-law/A3of the deceased respectively, stand convicted in S.C.No.68 of 2005 forthe offence under Sections 498-A and 302 read with 34 I.P.C, and underSection 4 of the Dowry Prohibition Act, for which they were sentenced toundergo rigorous imprisonment for three years with a fine of Rs.1,000/-each, in default, six months rigorous imprisonment; life imprisonmentwith a fine of Rs.2,000/- each, in default six months rigorousimprisonment; and rigorous imprisonment for two years with a fine ofRs.1,000/- each, in default, six months rigorous imprisonment.Therefore, they are before this court in this appeal. https://hcservices.ecourts.gov.in/hcservices/

2. For the sake of convenience, the appellants are referred to asA1 and A3 respectively.3. According to the prosecution the occurrence took place at about10.00 p.m. on 29.8.2004. Their case is, A1 caught hold of the deceased;A3 poured kerosene on the deceased and then A2 threw a lightedmatchstick on the deceased resulting in her death on 4.9.2004. To provetheir case, the prosecution examined P.Ws.1 to 16 besides marking Exs.P1to P15 and M.Os.1 to 6. The defence had let in a documentary evidenceEx.D1. (a) P.W.1 is the father of the deceased Kumari alias Jayakumari.P.W.1's evidence is that his daughter is the wife of A1. On the nextday of occurrence, at about 11 am, he received information that thedeceased was admitted in the Government Hospital at Erode. Immediately,he proceeded to the Government Hospital at Erode and enquired thedeceased about the occurrence. The deceased informed that A1 to A3poured kerosene on her and set fire. She succumbed to the injuries on4.9.2004. (b) P.W.2 is the mother of the deceased. She deposed that sixteenyears before, the deceased was married to the accused and got a boy,P.W.6, studying at 8th standard at the time of occurrence. The deceasedwas harassed for dowry. Three months prior to the occurrence, Panchayatwas conducted and thereafter, she was sent to her in-laws house, alongwith P.W.6, who was studying in her house. At about 10 pm on 29.8.2004,P.W.6 came to her house stating that all the accused were harassing thedeceased demanding dowry and that they would set her on fire by pouringkerosene or throw her in the river, if she reveals about the harassmentto anybody. On the next day, on receiving the telephonic information,she went to the Hospital, where, the deceased informed her that theaccused were harassing her demanding dowry and while A1 caught hold ofher hands and A3 poured kerosene, A2 threw the lighted matchstick on her.(c) P.W.3 is the brother of the deceased. He stated about thecruelty the deceased was subjected to at the hands of the accused fordowry and about the statement given by the deceased in the hospital thatA2 and A3 caught hold of her hands and A1 poured kerosene and set fireon her.(d) P.W.4 is the younger brother of the deceased. He deposed thaton receipt of telephonic information about the admission of the deceasedin the hospital with burn injuries, he went to the hospital, wherein hewas informed that A1 caught hold of her hands, A3 poured kerosene and A2set fire on her, demanding dowry. He has also attested his signature tothe observation Mahazar, Ex.P1.(e) P.W.5, maternal uncle of the deceased, also deposed about thestatement given by the deceased that A1 caught hold of her hands, A3poured kerosene and A2 set fire on her, demanding dowry. He attested https://hcservices.ecourts.gov.in/hcservices/ his signature to the Mahazar for seizure of M.Os.1 to 4, Ex.P2 and RoughSketch, Ex.P13.(f) P.W.6 is the son of the deceased and A1. He deposed that allthe accused harassed the deceased several times demanding dowry. He wasstudying at his maternal grand parents house. Three months prior to theoccurrence, when the deceased was staying at her parents place, apanchayat was conducted, wherein it was decided to leave the deceased inthe house of the accused, along with P.W.6, so that there would not beany quarrel between the deceased and A1. Even thereafter, the accusedwere beating the deceased demanding dowry. On the date of occurrence,the accused were harassing the deceased to bring jewels and cash, andthreatened her stating that they would set fire on him and the deceasedby pouring kerosene or would throw them in the river. When A2 and A3left the house, P.W.6, fearing danger to his life, went to the house ofP.Ws.1 and 2. Next day, he was informed by A1 over telephone that thedeceased sustained burn injuries and therefore, admitted in thehospital. He went to the hospital at Erode. The deceased told him thatA1 caught hold of her hands, A3 poured kerosene and A2 set fire on her,demanding dowry. (g) P.W.7 is the neighbour of the accused. She deposed that onhearing the alarm of A3, she went to the place of occurrence and saw thedeceased with burn injuries.(h) P.W.8, maternal uncle of the deceased, deposed about theharassment borne by the deceased at the hands of the accused for dowry. (i) P.W.14, Head Constable of Bhavani Police Station, on theinformation received from Government Hospital at Erode, went to thehospital and enquired the deceased and recorded her statement, Ex.P9 andafter reading over to the deceased and affirming it to be right, got herleft thumb impression in it. He handed over the said statement to SubInspector for further action. Thereafter, he handed over the saidstatement to the Inspector of Bhavani All Women Police Station, P.W.16on 31.8.2004.(j) Ex.P3 is the requisition received from the Hospital.Accordingly, P.W.9 proceeded to the hospital where she found thedeceased as an inpatient. P.W.10, duty doctor was also present there.By examining the deceased, P.W.9 got herself satisfied that the deceasedwas in a fit and conscious state of mind to give a statement. She alsopersonally questioned the victim about her family details. Then thedeceased disclosed to P.W.9 that two days prior to the occurrence, A1beat her demanding Rs.20,000/- and jewels and on the date of ofoccurrence, at about 10 pm, since P.W.6 was not available, she wastortured for the same and A1 tied her hands at the backside, A3 pouredkerosene and A2 set fire on her and further, it was stated in thehospital at Bhavani that the deceased was mentally unsound and she hadself-immolated and there was dowry harassment from the time of her https://hcservices.ecourts.gov.in/hcservices/ marriage. After recording the statement, it was read over to thedeceased and took her left thumb impression in it. Ex.P5 is the saiddying declaration of the deceased. The certificates given by P.W.10,about the fit and conscious state of mind of the deceased, both prior togiving the Judicial dying declaration during and after recording thejudicial declaration are Exs.P4 and P6. (k) P.W.16, Investigating Officer, on receiving the statement ofthe deceased, Ex.P9 and intimation from the Government Hospital, Erode,Ex.P11, registered a case in Crime No.4 of 2004 under Section 498(A) and506(ii), IPC and Section 4 of the Dowry Prohibition Act. Ex.P12 is theprinted First Information Report. Thereafter, he commenced theinvestigation by reaching the crime scene. He prepared Ex.P1,Observation Mahazar and Ex.P13, rough sketch. Under mahazar, Ex.P2, heseized M.Os.1 to 4. On the same day, he recorded the statements of thedeceased, P.Ws.1 to 5 and 7. He arrested the accused at 5.30 pm on1.9.2004. He caused letter to the Court for obtaining the dyingdeclaration of the deceased. On 5.9.2004, at about 6.30 am, he receivedinformation about the death of the deceased at 9.50 pm on 4.9.2004 andtherefore, altered the sections of offence into one under Sections 302,506(ii), 498(A), IPC and Section 4 of the Dowry Prohibition Act. Ex.P14is the altered Express First Information Report. He conducted inquestover the dead body in the presence of panchayatdars and witnesses.Ex.P15 is the inquest report. Then he sent a requisition, Ex.P7 to thecourt to conduct post-mortem on the dead body. (l) P.W.15 is the police Head constable, who carried therequisition to the hospital for post-mortem. After post-mortem shehanded over the dead body to the relatives. P.W.11 is the duty Doctor inthe Government Hospital at Erode, before whom the statement was recordedby the Head Constable, P.W.14. P.W.12 is the Doctor, who did post-mortemon the dead body. Ex.P8 is the post-mortem report. The Doctor opinedthat the deceased appears to have died of septicaemia, shock due toexternal burns. (m) After completing the investigation and after complying with allthe legal formalities, P.W.16 filed the final report in the Courtagainst the accused on 5.10.2004 under Section 498A, 302 read with 34IPC and Section 4 of the Dowry Prohibition Act. The case was committedto Court of Sessions and charges were framed and since the accuseddenied their complicity in the offence, the case was taken up for trial.4. When the accused were questioned under Section 313 of the Codeof Criminal Procedure, on the basis of the incriminating materials madeavailable against them, they denied each and every circumstance put upagainst them as false and contrary to facts. As already noted,documentary evidence, Ex.D1 was brought before court at their instance.The learned trial judge, on perusal of the materials, oral anddocumentary and after hearing both sides, convicted and sentenced theappellants as aforementioned. Hence, the present appeal. https://hcservices.ecourts.gov.in/hcservices/

5. The learned counsel for the appellants, by taking us throughExs.P5 and P9, recorded by P.W.9, Judicial Magistrate and P.W.14, HeadConstable respectively, would contend that there are contradictions inboth the dying declaration as to the overt act of A3 and therefore, boththe dying declarations should be disbelieved.6. Per contra, learned Additional Public Prosecutor submits thatthe statement of the deceased that she was done to death by pouringkerosene and setting fire by the accused, as per her dying declarationsExs.P5 and P9 stands corroborated by the evidence of P.Ws.1 to 6, andthe same would clearly establish the guilt of the accused and therefore,the contradiction as to the overt act of A3 would not change the natureof the offence committed by the accused.7. In the light of the submissions of the learned counsel on eitherside, we went through the entire records. 8.1. As the strenuous contention of the learned counsel for theappellants is about the contradiction in the dying declaration, itwould be apposite to refer the ruling with regard to the acceptabilityof the dying declaration.8.2. In Jai Karan v. State of Delhi (NCT) [1999 SCC (Crl.) 1385],the Supreme Court has laid down the following law:"A dying declaration is admissible in evidence on theprinciple of necessity and can form the basis forconviction if it is found to be reliable. While it is inthe nature of an exception to the general rule forbiddinghearsay evidence, it is admitted to the premise thatordinarily a dying person will not falsely implicate aninnocent person in the commission of a serious crime. It isthis premise which is considered strong enough to set offthe need that the maker of the statement should state so onoath and be cross-examined by the person who is sought tobe implicated. In order that a dying declaration may formthe sole basis for conviction without the need forindependent corroboration, it must be shown that the personstating it had the opportunity of identifying the personimplicated and is thoroughly reliable and free fromblemish. If, in the facts and circumstances of the case, itis found that the maker of the statement was in a fit stateof mind and had voluntarily made the statement on the basisof personal knowledge without being influenced by othersand the court on a strict scrutiny finds it to be reliable,there is no rule of law or even of prudence that such areliable piece of evidence cannot be acted upon unless itis corroborated. A dying declaration is an independentpiece of evidence like any other piece of evidence--neitherextra strong nor weak--and can be acted upon withoutcorroboration if it is found to be otherwise true andreliable." https://hcservices.ecourts.gov.in/hcservices/

8.3. In P.V. Padhakrishna v. State of Karnataka [2003 SCC(Crl.) 1679], the Supreme Court has held as under:"This is a case where the basis of conviction of theaccused is the dying declaration. The situation in which aperson is on the deathbed is so solemn arid serene when heis dying that the grave position in which he is placed, isthe reason in law to accept the veracity of his statement.It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dyingdeclaration be excluded it will result in miscarriage ofjustice, because the victim being generally the onlyeyewitness in a serious crime, the exclusion of thestatement would leave the court without a scrap of evidence.Though a dying declaration is entitled to greatweight, it is worthwhile to note that the accused has nopower of cross examination. Such a power is essential foreliciting the truth as an obligation of oath could be. Thisis the reason the court also insists that the dyingdeclaration should be of such a nature as to inspire fullconfidence of the court in its correctness. The court hasto be on guard that the statement of the deceased was notas a result of either tutoring, or prompting or a productof imagination. 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 thecourt is satisfied that the declaration was true andvoluntary, undoubtedly, it can base its conviction withoutany further corroboration. It cannot be laid down as anabsolute rule of law that the dying declaration cannot formthe sole basis of conviction unless it is corroborated. Therule requiring corroboration is merely a rule ofprudence..."8.4. In Thurukanni Pompiah and Anr. v. State of Mysore, AIR 1965 SC939, the Supreme Court has held that a truthful and reliable dyingdeclaration may form the sole basis of conviction, even though it is notcorroborated. But the Court must be satisfied that the declaration istruthful. The reliability of the declaration should be subjected to aclose scrutiny, considering that it was made in the absence of theaccused who had no opportunity to test its veracity by crossexamination. In the event the Court finds that the declaration is notwholly reliable and the material and integral portion of the deceased'sversion of the entire occurrence is untrue, it would be only unsafe toconvict the accused on the basis of such declaration alone without therebeing any corroboration. 9. A reference to the above well settled principles, makes itclear that a dying declaration is admissible in evidence as any other https://hcservices.ecourts.gov.in/hcservices/ evidence in terms of Section 32 of the Indian Evidence Act. Though adying declaration is entitled to great weight, it must be kept in mindthat the accused has no power of cross examination and such a power isessential for eliciting the truth. The Court must see reasons that thedying declaration of such a nature has inspired full confidence as toits correctness. The Court must satisfy itself that the dyingdeclaration was not as a result of either tutoring or prompting or aproduct of imagination and the deceased was in a fit state of mind togive such a declaration. The credibility of a dying declaration doesnot depend upon the number of dying declarations nor on the length ofstatements made by the deceased. The main test of reliability of a dyingdeclaration is mental and physical fitness and capability of the personto make the statement at that point of time.10. Before proceeding further on the point of contradiction in thedying declarations, it would be apt to examine the motive for thecommission of the offence. The substratum of the evidence of P.Ws.1 to6 and 8 is that the deceased was harassed by the accused demandingdowry. The evidence on record clearly establishes the fact that theaccused had been making demands. Apart from the fact that they used topress the deceased to get money from her parents, there is also clearevidence on record to establish the fact that she was being ill-treatedby them. The evidence in that regard is consistent and has been deposedto by a large number of witnesses, viz. family members and relatives.11.1. Once the dowry demand by the accused leading to the burningbeing the underlying motive for commission of offence has been proved,the next point for consideration is the contradiction in the dyingdeclarations given by the deceased and in this regard, a reference tothe relevant portion of the dying declarations, viz. Exs.P9 and P5 wouldbe appropriate.11.2. In Ex.P9, recorded by P.W.14 on 30.8.2004 at about 11.00hours, it is stated as under: "... when she refused to go to her parents place, A1 wentout and brought kerosene and poured on her stating that hewould not live with her and leave her alive; A2 brought thematch box and lighted her; A3 put off the fire stating whythe deceased had not gone to her house; immediately, shewas taken to the hospital ..."11.3. In Ex.P5, recorded by P.W.9 on 1.9.2004 at about 2.55 pm, itis stated as under:"... A1 tied her hands at the back side; A2 pouredkerosene; A3 set her on fire and left to his daughter'shouse; when she was burning, she raised alarm for help andnobody came for her rescue; A1 stated in the Hospital atBhavani that the deceased set fire on her due to her mentalunsoundness ..." https://hcservices.ecourts.gov.in/hcservices/

12. The main contradiction, as contended by the learned counsel forthe appellants, is that in the first dying declaration, Ex.P9, recordedby P.W.14, the deceased had stated that A1 poured kerosene on her and A2threw a lighted match stick on her and A3 put off the fire. But, as perEx.P5, judicial dying declaration recorded by P.W.9, JudicialMagistrate, A1 tied the hands of the deceased at the back side, A3poured kerosene on her and A2 set her on fire.13. Even though a dying declaration made by the deceased at theverge of her death has a special sanctity and enjoys almost a sacrosanctstatus as a piece of evidence, as, at that solemn moment, she is mostunlikely to make any untrue statement and the shadow of impending deathis, by itself, the guarantee of the truth of the statement made by herregarding the causes or circumstances leading to her death, thecontradiction in the said dying declarations, viz. in Ex.P5, it isstated that A3 poured kerosene and in Ex.P9, A3 tried to put off thefire, coupled with the evidence of P.W.7, who is the neighbour of thedeceased, who had stated that on hearing the alarm of A3 that “vd; jiyapy;fy;iy nghl;Ltpl;lhna” which would mean that the deceased had thrown theblame on her and made her to suffer, she went to the place of occurrenceand saw the deceased with burn injuries, would throw a doubt as towhether A3 had poured kerosene on the deceased or not. Further,according to P.Ws.2, 4, 5 and 6, the deceased had stated that A1 caughthold of her hands, A3 poured kerosene and A2 threw a lighted matchstickon her. But, the deceased had stated to P.W.1 that A1 to A3 pouredkerosene and set her on fire. However, the deceased had stated to P.W.3that A2 and A3 caught hold of her hands and A1 set her on fire. 14.1. In the light of our foregoing discussion, we hold that thecase of the prosecution that A1, the first appellant is guilty of theoffences punishable under Section 498-A IPC., Section 4 of the DowryProhibition Act and Section 302 IPC. is substantiated beyond reasonabledoubt and the order of conviction and sentence passed in that regard bythe trial court is confirmed. 14.2. Insofar as A3, the second appellant is concerned, we are ofthe considered view that the offence under Section 302 IPC. is not madeout, however, offences under Sections 498-A IPC. and section 4 of theDowry Prohibition Act are clearly made out. Accordingly, whileacquitting the 2nd appellant/3rd accused of the offence under Section 302IPC., considering the aspect that she is aged about 63 years, an oldlady, the sentences of 3 year and 2 year R.I. respectively, as imposedby the trial court for the aforesaid offences and ordered to runconcurrently stand modified into one year with fine of Rs.2,000/-(Rupees two thousand only) - Rs.1,000/- each for the offence underSection 498(A) IPC and Section 4 of the Dowry Prohibition Act, whichamount shall be paid within eight weeks from the date of receipt of acopy of this order, failing which, she has to undergo rigorousimprisonment for three months. https://hcservices.ecourts.gov.in/hcservices/

15. In the result, Appeal stands dismissed as against A1/firstappellant and it is allowed in part as regards the 2nd appellant/A3, tothe extent indicated above. Since the second appellant is on bail andthe sentence is modified by our Judgment, the trial court shall takesteps to secure A-3 and commit her to Prison so as to undergo remainingperiod of sentence, if any. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkplTo 1. The Principal Sessions Judge,Erode.2. The Judicaial Magistrate, Bhavani.3. The Chief Judicial Magistrate, Erode.4. The Superintendent, Central Prision, Vellore.5. The District collector, Erode.6. The Director of General Police, Chennai.7. The Public prosecutor, High Court, Madras.8. The Inspector of Police, All women police station Bhavani, Erode District.+1cc to Mr.N.Manokaran Advocate Sr.18294Crl.A.No.973 of 2006KM(CO)rvr 15/05/08