S.VAIDYANATHAN,J.
AND N.ANAND VENKATESH,J.
The Appellant herein, who is the Sole Accused in S.C.No.184 of 2014 on the file of the learned Sessions Judge, Magila Fast Track Court, Theni, stands convicted by the Trial Court for offences under
Section 302 IPC as follows:
The period of remand already undergone was directed to be set off under Section 428 Cr.P.C by the Trial Court. Aggrieved by the order of the Sessions Judge, Magila Fast Track Court, Theni, the Appellant has preferred the present Criminal Appeal before this Court.
2. The case of the prosecution in nutshell was that the Appellant / accused and the deceased Muthuselvi are husband and wife and were blessed with three children. It was alleged by P.W.1, who is the elder brother of the deceased that on 14.11.2014 at about 08.00 p.m., after hearing the screaming sound of the deceased, he came out of his house and saw the deceased falling down with burns near the house of P.Ws.5 and 7 and upon enquiry, it was informed to him by the deceased that her husband, suspecting her fidelity, poured kerosene on her and set fire. P.W.1 admitted her in the hospital at about 09.20p.m. on 14.11.2014 and at the time of admission, the deceased suffered 92% of burn injuries.
3. It was further alleged by P.W.1 that after admitting her sister in the hospital, he went to the Police Station and lodged a written complaint / Ex.P1 at about 23.30 hours on the same day, pursuant to which, a case was registered by the Sub-Inspector of Police / P.W.12 in Crime No.478 of 2014 initially for an offence http://www.judis.nic.in 2/16 Crl.A.(MD)No.516 of 2017 under
Section 307 IPC and the printed FIR in Ex.P6 was forwarded to the jurisdictional Magistrate and his Superior Officers for further action. Learned District Munsif-cum-Judicial Magistrate, Andipatti / P.W.14, as he then was, had recorded the dying declaration of the deceased at the hospital with the assistance of a Doctor, by name Sangar Raja, who duly certified that the deceased was in a fit state of mind to give dying declaration. Subsequently, the deceased succumbed to injuries at about 06:45 hours on 15.11.2014, due to which, the case was altered from
Section 307 IPC to
Section 302 IPC at about 07.45 hours on 15.11.2014 by way of an alteration report in Ex.P.12, which was forwarded to the learned Magistrate through P.W.11.
4. After a detailed and thorough investigation, a charge sheet was laid before the Judicial Magistrate, Periyakulam in P.R.C.No.39 of 2014 and was subsequently, made over to the Court of Sessions as per Section 209 Cr.P.C. for trial. The prosecution, in order to substantiate the offence against the accused, had examined 15 witnesses, marked 12 documents and exhibited 2 Material Objects and on the side of the accused, neither any witness was examined nor documents marked. The accused was questioned under Section 313 Cr.P.C. and he denied the charges levelled against him. The Trial Court, after analyzing the evidence let in by the prosecution, found the accused guilty of the offence and convicted him as stated supra.
http://www.judis.nic.in 3/16 Crl.A.(MD)No.516 of 2017
5. The learned counsel appearing on behalf of the appellant has submitted that as per Ex.P.10 / Accident Register, one Pandi, who is stated to be the neighbour of the deceased had admitted the deceased in the hospital and the said Pandi was not examined on the side of the prosecution. Similarly, the Doctor, who certified as to the fitness of the deceased to give dying declaration was also not added as a witness by the prosecution and therefore, the prosecution cannot solely rely upon the dying declaration of the deceased recorded by the learned Magistrate in Ex.P.8 to substantiate their case. He has further submitted that since P.Ws.2 and 3, who are the younger son and the daughter of the deceased and accused and are under the care and custody of their maternal uncle, their evidence cannot be blindly relied upon to implicate the appellant / accused in the occurrence, as the children could have been tutored to depose against the accused, especially when continuous grudge existed between the accused and P.W.1.
6. The learned counsel for the appellant has also submitted that the appellant had questioned the deceased for parting with his hard-earned money to P.W.1, on account of which, there were frequent quarrels between the appellant and the deceased and the said fact was even admitted by P.W.2 in his cross examination. Police in connivance with P.W.1 had created a false and concocted story, by projecting as if the murder had taken place mainly on account of the appellant's suspicion over the disloyalty of his wife towards him. http://www.judis.nic.in 4/16 Crl.A.(MD)No.516 of 2017
7. It was the case put forth by the learned counsel for the appellant that admittedly, there were frequent quarrels between the deceased and the accused and even on the date of occurrence, there was a fight and the same is very clear even on a reading of the deposition of P.W.6 / mother of the deceased and therefore, the appellant had committed the offence under grave and sudden provocation. The case squarely falls under first exception to
Section 300 of the Indian Penal Code and the appellant ought not to have been convicted for the offence of murder under
Section 302 of the Indian Penal Code.
8. The learned Additional Public Prosecutor appearing on behalf of the respondent Police submitted that the dying declaration that was recorded from the deceased clearly points out the fact that it was the appellant alone, who had poured kerosene and set fire on the deceased and there is no ground to suspect the dying declaration. He further submitted that the evidence of the postmortem Doctor (P.W.13) and the Postmortem Certificate, marked as (Ex.P.7) clearly indicate that the deceased had died only due to 92% burn injuries. The learned Additional Public Prosecutor therefore concluded his arguments by submitting that the Court below has considered the oral and documentary evidence and has come to the correct conclusion that the appellant has committed the murder and the case squarely falls under
Section 302 of the Indian Penal Code. In order to substantiate his arguments, the learned counsel relied upon the judgment of the Hon'ble http://www.judis.nic.in 5/16 Crl.A.(MD)No.516 of 2017 Supreme Court in the case of Bhagwan Vs. State of Maharasahtra in Crl.A.No. 385 of 2010 decided on 07.08.2019, wherein it has been held as follows:
“33....The appellant was drunk, he poured kerosene. The deceased in a natural response to the injuries would be frantic and her reaction would bring her into close contacts with others in a small room including the appellant and their children. No doubt the trial Court has reasoned that the appellant might have tried subsequently for extinguishing the fire. The appellant stands squarely implicated by the dying declaration. The unambiguous words came from the mouth of his deceased wife who cannot be expected to lie as she would be conscious, that she would have to meet her maker with a lie in her mouth. We see no merit in the appeal. The appeal will stand dismissed.
As the appellant has been released on bail under orders of this Court, we direct that the bail bond of the appellant be cancelled and appellant shall be taken into custody to serve out the remaining sentence.”
9. This Court has carefully considered the submissions made on either side and perused the materials available on record.
10. The foremost contention raised on the side of the accused was that without examining the Doctor, who gave the certificate of fitness for obtaining dying declaration from the deceased, the dying declaration recorded by the Magistrate, on the basis of which, the Trial Court proceeded to convict the accused, cannot be acceptable. First of all, it is not correct on the part of the prosecution to have added the Magistrate as a witness for the purpose of subjecting him for cross examination in the witness box in respect of dying declaration, as it should have been done through an Investigating Officer with a corroboration of a Doctor as a witness. In fact, in the judgment relied upon by the http://www.judis.nic.in 6/16 Crl.A.(MD)No.516 of 2017 accused, which was rendered by us in Crl.A.(MD) No.478 of 2017 [Gurusamy vs. The State Rep. by the Inspector of Police, Ettayapuram Police Station] decided on 17.09.2019, apart from the Magistrate, one more dying declaration was obtained by the Sub-Inspector of Police therein and that was not the case herein. Since the entire case of the prosecution revolves around the dying declaration obtained by the Magistrate, the foremost thing to be considered in this case is, as to whether the mandatory procedures have been duly followed by the Magistrate before getting the dying declaration, as admittedly the Doctor, who was present at the time of obtaining dying declaration was not arrayed as a witness.
11. A careful analysis of the deposition given by P.W.14 / Magistrate discloses the fact that on the instruction of the Chief Judicial Magistrate, he had gone to the Government Medical College Hospital, (since the hospital falls within the jurisdiction of Andipatti) on 14.11.2014 at about 12:00 hours and at that time, one Dr.Sangaiyaraja was the Duty Doctor. It was further deposed that after ensuring from the Doctor that the deceased was in a fit state of mind to give dying declaration, he recorded her statement and completed the same by 12:15 hours and thereafter, the dying declaration was duly forwarded to the Judicial Magistrate, Periyakulam. From his deposition, it is very clear that all the procedures for recording a dying declaration have been duly adhered to and merely because the Doctor, who certified in respect of the fitness of the deceased to give dying declaration was not examined, it cannot be said that the entire case of the http://www.judis.nic.in 7/16 Crl.A.(MD)No.516 of 2017 prosecution has to be disbelieved. The Duty Doctor was very much present at the time of obtaining dying declaration, which is evident from the deposition of the Magistrate, which is extracted below:
“//////m';F oiuna$; thh;oy; rpfpr;irapy; ,Ue;j Kj;Jbry;tp taJ 38 f-bg mz;zhj;Jiu vd;gtiu mg;nghJ gzp kUj;Jtuhf ,Ue;jth; jpU/r';ifahuh$h vd;gth; milahsk; fhl;l 12/05 kzpf;F mtuJ thf;FK:yj;ij gjpt[ bra;a Jt';fp 12/15 kzpf;F thf;FK:yk; gjpt[ bra;J Koj;njd;/ thf;FK:yk; bgWtjw;F
Kd;g[ nkw;go nehahsp ey;y kdepiyapYk;. thf;FK:yk;
bfhLf;f jFjpa[ld; ,Ug;gij gzp kUj;Jth; K:yk;
cWjp bra;J bfhz;L mjw;fhd rhd;iwa[k; bgw;nwd;/ thf;FK:yj;ij gjpt[ bra;J Koj;j cld; thf;FK:yk;
gjpt[ bra;ak [ ; neuj;jpy; nehahsp ey;y epidt[lDk;. ngRk; jpwDld; ,Ue;jhh; vd;gij cWjp bra;J
mjw;fhd rhd;iwa[k; jdp kUj;Jthplk; bgw;nwd;/”
12. The next automatic question arises for consideration is, as to whether a person, who has suffered 92% burn injuries, would be in a position to give a dying declaration? This question is also no longer res integra. In Vijay Pal v. State (Government of NCT of Delhi) 2015 (4) SCC 749, we notice the following discussion:
“23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v.
State of Gujarat; (1992) 4 SCC 69: 1992 SCC (cri) 810 wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The http://www.judis.nic.in 8/16 Crl.A.(MD)No.516 of 2017 Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.
24. In State of M.P. v. Dal Singh; (2013) 14 SCC 159: (2014) 4 SCC (Cri) 141, a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible.”
13. Therefore, the mere fact that the patient suffered 92% burn injuries as in this case would not stand in the way of patient giving a dying declaration which otherwise inspires the confidence of the Court and is free from tutoring, and can be found reliable.
14. It was argued on the side of the accused that except related witnesses, no other independent witnesses were examined on the side of the prosecution to prove the guilt of the accused. It is pertinent to mention here that unlike other cases, the appellant herein and the deceased are husband and wife and the witnesses, who are related to the deceased wife were also relatives of the accused, more particularly they are brother-in-law and children of the accused. Though a plea of personal enmity between P.W.1 and the accused was raised, no iota of evidence (both oral and documentary) was produced to prove the said factum. The Hon'ble Supreme Court in Raju @ Balachandran & Ors vs State of Tamil Nadu [Crl.A.No.1614 of 2009] reported in 2012 (12) SCC 701, had elaborately considered the distinction between a related witness and an interested witness in detail, which has been duly taken note of by us in our judgment http://www.judis.nic.in 9/16 Crl.A.(MD)No.516 of 2017 rendered in Chandran vs. State [Crl.A.(MD) No.504 of 2017] decided on 01.11.2019.
15. A plea was taken by the accused that the death of the deceased was a suicide and not a murder, as the deceased poured kerosene by herself and set fire. To consider whether it is a suicide or murder, the deposition of P.W.2, who is none other than the younger son of the accused and the deceased, aged about 14, throws much light on the incident, which is found to be significant in this case. When he was examined in chief, he had deposed as under:
“//////14/11/14k; njjp ,ut[ 7. 7/30 kzpf;F ehd;. VdJ j';if vdJ mg;gh vdJ mk;kh tPl;oy; ,Ue;j nghJ vdJ mk;kh cg;g[kh fpz;o bfhz;L ,Ue;jhh;/ vdJ mg;gh kz;bzz;bza; nfid vLj;J vdJ mk;kh kPJ Cw;wp jPia bghWj;jp
tpl;lhh;/ vdJ mk;kh jP vhptij ghh;j;J ehDk;. VdJ j';if rj;jk; nghLtij ghh;j;J vdJ mg;gh fjt[ jpwe;J kz;bzz;bza; nfid vLj;J re;J gf;fk; Xo tpl;lhh;/ vdJ mk;kh gpd;dhy; Xo ngha;
bghpak;kh g";R tPlL ; Kd;g[ fPnH tpGe;J tpl;lhh;///”
16. P.W.2 was once again recalled for the purpose of subjecting him for cross examination based on the application filed by the accused, wherein the child had reiterated the same version without any contradiction, which reads as follows:
“//////rk;gtj;jpd; nghJ vdJ mk;kht[k;. vdJ mg;ght[k; rz;il nghl;l tpguk; bjhpa[k;/ o/tp/ ghh;j;J bfhz;L mth;fs; rz;il nghl;l tpguk; nfl;L bfhz;L ,Ue;njd;/ otpapy; glk; Xo bfhz;L ,Ue;jJ/ vdJ mg;gh k";rs; fyh; kz;bzz;bza; nfid vLj;J http://www.judis.nic.in 10/16 Crl.A.(MD)No.516 of 2017 XoaJ bjhpa[k;/ v';f mg;gh vdJ mk;kht[ld; rz;il nghl;L bfhz;nl kz;bzz;bza; nfid vLj;J vdJ mk;khtpd; jiyapy; Cw;wp jP Fr;rp vLj;J bfhSj;jp nghl;L kz;bzz;bza; nfid vLj;J nkny Xo nghdhh;/ mij ehd; neuoahf ghh;j;njd;///” From the above, it could be visualized that it was the accused, who had set fire on the deceased, thereby caused her death. The recovery of yellow colour kerosene cane and match box, which were listed as M.Os.1 and 2 clearly corroborates the version of P.W.2. There are numerous judgments of the Apex Court regarding consideration of a child witness as an admissible piece of evidence to arrive at a just conclusion and what the law requires is the proper identification of credence and credibility of that child witness.
17. The Hon'ble Supreme Court in the case of Prakash and another vs. State of Madhya Pradesh, reported in (1992) 4 SCC 225, had completely disregarded the finding rendered by the Trial Court regarding the evidence of a child witness and had observed as follows:
“11.....In discarding the evidence of the brother of the deceased namely Ajay Singh the learned Additional Sessions Judge was influenced by the tender age of Ajay (about 14 years) and was of the view that he was likely to be tutored. We do not think that a boy of about 14 years of age cannot give a proper account of the murder of his brother if he has an occasion to witness the same and simply because the witness was a boy of 14 years it will not be proper to assume that he is likely to be tutored. The High Court has given very convincing reasons for accepting the evidence of Ajay Singh as an eyewitness of the murderous act and we do not find any infirmity in the finding made by the High Court ...... (emphasis supplied) http://www.judis.nic.in 11/16 Crl.A.(MD)No.516 of 2017
18. The Hon'ble Supreme Court in yet another case in Dattu Ramrao Sakhare v. State of Maharashtra, reported in (1997) 5 SCC 341, was pleased to hold as under:
“A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. ...(emphasis supplied)”
19. To add further, it is noteworthy to refer to another judgment of the Hon'ble Supreme Court in Panchhi and others vs. State of U.P., reported in (1998) 7 SCC 177, wherein it was held thus, “Shri RK Jain, learned Senior Counsel, contended that it is very risky to place reliance on the evidence of PW1 being a child witness. According to the learned counsel, evidence of a child witness is generally unworthy credence. But we do not subscribe to the view that the evidence of a child witness would always stand irretrievable stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is a found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others toll them and thus a child witness is an easy prey to tutoring.”
20. From the above, it is apparent that it cannot always be assumed that a witness, who is a minor is tutored, in the absence of evidence / material on record to conclude that a child witness has been tutored. But, at the same time, the Court has to be satisfied that there is no likelihood of the child witness being http://www.judis.nic.in 12/16 Crl.A.(MD)No.516 of 2017 tutored. On a perusal of the earlier version of the deposition of P.W.2 with that of the subsequent deposition, there is not much difference between those two versions and for the sake of argument if it is admitted that the child / P.W.2 has been tutored to depose a false story against the accused, that would have reflected in the later part of the deposition.
21. At this juncture, the learned counsel for the Appellant has raised the alternative plea of culpable homicide not amounting to murder and thereby attempted to bring this case under Exception 1 to
Section 300 IPC, so as to have the benefit of reduction of punishment under
Section 304 IPC. In order to substantiate the said argument, the learned counsel brought to the notice of this Court, the charges framed against the appellant and also the dying declaration given by the deceased. The learned counsel submitted that there used to be frequent quarrels between the appellant and his wife and even on the date of incident, there was a verbal fight between the parties and due to grave and sudden provocation he had caused the death of the deceased and therefore, the appellant can be convicted for culpable homicide not amounting to murder and sentenced under
Section 304 (i) of the Indian Penal Code.
22. We find much force in the submissions made by the learned Counsel.
When the Court is confronted with the question whether the offence is “murder” or “culpable homicide not amounting to murder”, it is equally important to note as http://www.judis.nic.in 13/16 Crl.A.(MD)No.516 of 2017 to whether there is any oral and documentary evidence so as to bring the pendulum to a particular side. A scrutiny of the deposition of P.W.6 / mother of the accused unravels the fact that the deceased always suspected that the deceased was having extra marital relationship with her maternal uncle by name Mariappan and infuriated by the same and at the spur of the moment, the accused had poured kerosene on the deceased and caused her death. Thus, the evidence of P.W.6 clearly shows that there was a heated argument between the deceased and the accused, which ultimately ended in the accused pouring kerosene on the deceased and causing her death. Therefore, in our considered opinion, there is an element of provocation in Exception 1 to
Section 300 of IPC.
23. To bring the case under the above exception, first stage is to see if the accused has done any act, which has caused the death. Once the Court is satisfied with the first stage, it leads to the second stage in order to see if the act of the accused person amounts to “culpable homicide” as defined under
Section 299 of the Indian Penal Code and if the answer of this question is found in the affirmative, the Court has to reach the next stage to consider the operation of
Section 300 of the Indian Penal Code and see if the act can be brought under any one of the four limbs of
Section 300 of the Indian Penal Code. If the answer for this question is in the negative, the offence would be culpable homicide not amounting to murder punishable under the first and second part of
Section 304 of the Indian Penal code. If the question is found to be positive, then the Court has to see if the http://www.judis.nic.in 14/16 Crl.A.(MD)No.516 of 2017 act comes within any of the exceptions enumerated under
Section 300 of the Indian Penal Code and if it falls under the exception, it will again come within the category of culpable homicide not amounting to murder, punishable under
Section 304 of the Indian Penal Code.
24. In the present case, it is found that the appellant was completely deprived of the power of self-control due to grave and sudden provocation and he caused death of the deceased by pouring kerosene and setting her on fire. It is found that the appellant had not voluntarily provoked himself and there were obviously earlier fights between the parties for a very long time and pursuant to the verbal fight that took place on the date of occurrence, viz., 14.11.2014, the entire incident had occurred. Therefore, this Court is convinced that the facts of the present case falls under Exception 1 of Section 300 and consequently, it is a culpable homicide not amounting to murder.
25. Taking into consideration the facts and circumstances of the case and in view of the above discussions, this Court is of the considered view that the conviction and sentence passed by the Court below requires modification, as the facts of the present case clearly falls under Exception 1 to
Section 300 of the Indian Penal Code and therefore, the appellant is convicted for “culpable homicide not amounting to murder” and he is sentenced under Section 304 (i) of the Indian Penal code, to undergo Rigorous Imprisonment for a period of seven years. http://www.judis.nic.in 15/16 Crl.A.(MD)No.516 of 2017 S.VAIDYANATHAN,J.
AND N.ANAND VENKATESH,J.
ar
26. The conviction and sentence passed by the Court below in S.C.No. 184 of 2014 dated 24.02.2017, is modified to that extent and accordingly, this Criminal Appeal is allowed in part. It is made clear that the appellant shall be entitled for set off in accordance with Section 428 of the Code of Criminal Procedure for the period of detention already undergone by him. Consequently, connected miscellaneous petition is closed.
[S.V.N.,J.] [N.A.V.,J.] 04.11.2019 Index: Yes/No Internet: Yes ar To: 1.The Principal Sessions Judge, Magila Fast Track Court, Theni . 2.The Inspector of Police, Devadanapatti Police Station, Theni District. 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. 4.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai. PRE-DELIVERY JUDGMENT MADE IN Criminal Appeal (MD) No.516 of 2017 http://www.judis.nic.in 16/16