[Judgment of the Court was delivered by M.SATHYANARAYANAN, J.] The appellant is arrayed as the first accused [A1] out of two accused in SC. No.75/2012 on the file of the Court of Sessions Judge, Fast Track Mahila Court, Nagapattinam. The appellant / A1 along with his son Rajavelu A2, stood charged and tried as follows:-
A1 - 302 IPC ; and A2 - 498-A IPC and 4-A[ii] of the Tamil Nadu Prohibition of Harassment of Women Act.
2 The Trial Court, vide impugned Judgment dated 01.07.2015, has found that the appellant/A1 is not guilty for the commission of the offence u/s.302 IPC and however, found him guilty for the commission of the offence u/s.304 [Part I] IPC and convicted him for the said offence and sentenced him to undergo rigorous imprisonment for 10 years and to pa a fine of Rs.10,000/- and in default, to undergo simple imprisonment for one year. The Trial Court has also granted set-off u/s.428 Cr.P.C.
3 The second accused [A2] son of the appellant/A1, was acquitted for the commission of the above said offences. The State did not prefer any appeal seeking enhancement of sentence insofar as the appellant/A1 is concerned and so also, did not prefer any appeal against the acquittal of A2.
4 The appellant / A1, challenging the legality of the conviction and sentence awarded by the Trial Court u/s.304 [Part-I] IPC vide impugned judgment dated 01.07.2015, has filed this Criminal Appeal.
5 The facts leading to the filing of this appeal, briefly narrated and necessary for the disposal of this criminal appeal, are as follows:-
5.1 The deceased Manjual is the daughter of P.Ws.6 and 7 Subramanian and Amaravathi and sister of P.W.8-Senthil and she was married to Rajavelu [A2] on 01.07.2010. The deceased Manjula and her husband A2 along with the appellant/A1 were living as a joint family and according to the prosecution, she was tortured by her husband-A2 by demanding more dowry and other articles. The prosecution further alleges that the husband of the deceased Manjula [A2] had sold 3 gold rings out of 5 rings given to her at the time of marriage without the knowledge of the deceased Manjula / wife of A2 and there used to be wordy altercation between them on account of the same. The deceased Manjula had questioned A2 about the said act and she was scolded and was also subjected to physical abuse, with a further demand to get more dowry from her parents. A2-husband of the deceased Manjula, a week prior to 12.09.2010, had sold one of the remaining 2 rings.
5.2 The prosecution further alleges that at about 7.00 p.m. on 12.09.2010, the appellant/A1 asked his daughter-in-law Manjula [deceased] to get the rings and when she searched the box, she did not find any ring and when she told the same to her husband [A2], there was a wordy quarrel and A2 had gone to Chennai and at about 9.00 p.m. on the same day, the appellant/A1 father-in-law of the deceased Manjula was sitting on the steps and the deceased asked him to take food.
5.3 The appellant/A1 asked the deceased Manjula to bring kerosene for filling up the lamp. Accordingly, she brought the food, kerosene and lamp as well as match box and kept it near her father-in-law [appellant/A1]. Sometime thereafter, the A2-husband of the deceased Manjula asked her about the whereabouts of the one of the rings and she told him that someone had taken away. The appellant/A1 started scolding her by saying whether she came there to lead a matrimonial life or to accuse everybody of theft and so saying, he poured the kerosene the plastic box and set her on fire and she ran outside the house and the neighbours took her to Tiruvarur Government Hospital.
5.4 P.W.17-Mr.Senthilkumar, is the Station House Officer of Manalmedu Police Station and at the relevant point of time, i.e., on 13.09.2010, he was the Sub Inspector of Police in Kilvelur Police Station and he received the wireless message from Tiruvarur Government Hospital and immediately, he went there and found that the victim Manjula wife of Rajavelu [A2] with burn injuries and he recorded her statement / complaint under Ex.P.9 and thereafter, came back to the police station and based on the said statement / complaint, has registered a case in Cr.No.503/2010 for the offence u/s.307 IPC at about 12.00 Noon on the same day. The printed FIR is marked as Ex.P.10. P.W.13 despatched the original complaint [Ex.P.9] as well as the printed FIR to the jurisdictional Magistrate Court and sent the copies to his higher officials.
5.5 P.W.16-Dr.Raji, was the Casualty Medical Officer attached to Tiruvarur Government Hospital at the relevant point of time and at about 11.30 p.m. on 12.09.2010, the deceased Manjula was brought by her father-in-law [appellant/A1] and he told P.W.16 that at about 9.00 p.m., on 12.09.2010, the victim committed self-immolation and came out of the house and P.W.16 admitted her as an In-Patiet in the Women's Ward and made a requisition under Ex.P.7 to record her Dying Declaration and at that time, Manjula was in a semi-conscious state and her Blood Pressure was also low and she suffered 80% burn injuries. The Accident Register pertaining to Manjula was marked as Ex.P.8.
5.6 P.W.15-Mr.C.Chandrasekar, was the Judicial Magistrate, No.2, Kumbakonam at that point of time and at about 00.15 hours on 13.09.2010, he received the requisition and reached the Hospital at about 00.30 hours and Manjula was identified by the Duty Doctor K.Sivaraman and a Fitness Certificate was also obtained as to her capability of giving statement and the said doctor has given the certification that the injured Manjula was in a fit and conscious state of mind. P.W.15 also put some questions to Manjula and having satisfied that she was in a conscious and fit state of mind, started recorded the Dying Declaration. Manjula, in her Dying Declaration, had stated that her father-in-law Ramasamy appellant/A1, asked her to bring kerosene and lamp and she gave it and immediately, he poured kerosene on her and set her on fire and at that time, nobody was there and her husband A2, had beaten her on account of loss of rings and on account of the same, her father-in-law [appellant/A1] became angry and had done the said act and when she raised alarm, the neighbours came and rescued her and admitted her in the hospital. P.W.15 has also got her left thumb impression and at the of recording the statement, she, Duty Doctor and the injured alone were present. The Dying Declaration recorded by P.W.15 is marked as Ex.P.6.
5.7 P.W.19-Mr.Magesh, was the Circle Inspector of Kilvelur Police Station at the relevant point of time and on receipt of Ex.P.17-FIR, he took up the investigation and at about 13.00 hours on 13.09.2010, he went to the spot and in the presence of Tamilselvam and Vijayakumar [P.Ws.9 and 10], he prepared the Observation Mahazar as well the Rough Sketch [Exs.P.12 and 13] respectively. P.W.19-the Investigating Officer recovered an empty Plastic Cool Drink Bottle [M.O.1] ; match box [M.O.2] and burnt match stick [M.O.3] under the cover of Mahazar-Ex.P.14. He also recorded the statements of P.Ws.1, 2,3 4, 6, 5, 7, 9 and 10 under sections 161[3] Cr.P.C.
5.8 P.W.19, on 14.09.2010, went to Tiruvarur Government Hospital and recorded the statement of the injured Manjula u/s.161[3] Cr.P.C. and it was marked as Ex.P.15 [subject to objections]. On the same day at about 14.00 hours, he effected the arrest of the appellant/A1 and thereafter, sent him for judicial custody. P.W.19 received information about the demise of Manjula on 18.09.2010 at about 11.00 p.m. and on 19.09.2010, at about 7.00 a.m. he went to the said hospital and in the presence of Panchayatdars, he held inquest on the dead body of the deceased Manjula and the Inquest Report is marked as Ex.P.16. P.W.19, on the same day made a requisition to the jurisdictional Magistrate for conducting postmortem on the body of the deceased Manjula.
5.9 P.W.14-Mr.Velu, the Special Sub Inspector of Police attached to the respondent police, handed over the body of the deceased along with the requisition to the doctor for conducting postmortem.
5.10 P.W.11-Dr.Suganya, Assistant Surgeon attached to the Government Hospital, Tiruvarur, on receipt of the body of the deceased Manjula, had seen the body at about 15.00 hours on 19.09.2010 and the condition was the presence of rigor mortis in all four limbs and commenced the postmortem at about 3.10 p.m. on the same day and noted the following features:-
External Injuries:-
Varying degrees of burns present all over the body involving head and neck. Both upper limbs [front and back] chest and abdomen, both thighs and gluteal region and found to be infected. Partially burnt hair present in head, eye lashes and eyebrows, mouth closed, tongue within the mouth external genetalia not involved.
Internal Injuries:
Hyoid bone intact, brain and cranium intact. Lungs and heart normal. Liver, Spleen, Kidney and brain C/s show pale trachea cut section shows soot? Particles. Bones intact. Stomach pale and contained yellow colour gastric juice of 200 ml intestines look pale. Postmortem concluded by 04.10 p.m. on 19.09.2010. P.W.11, after the conclusion of the postmortem, has given the final opinion that the deceased appeared to have died of burns. Cause of death is septicemia shock secondary to 80% burns. Death would have occurred 12-18 hours prior to postmortem. The Postmortem Certificate is marked as Ex.P.5.
5.11 P.W.18-Mr.Ramachandran, Scientific Officer, was given a requisition to find out the presence of any poison in the internal organs of the deceased and after analysis he gave his opinion under Ex.P.11 stating that no poisonous substances were noted.
5.12 P.W.19, after conclusion of the postmortem, has handed over the body of the deceased to her relatives and altered the section from 307 IPC to one of section 302 IPC and the Alteration Report is marked as Ex.P.17. On coming to know that the deceased Manjula was also subjected to abuse and torture on account of dowry demand, P.W.19 also altered the section from 302 IPC to one of
sections 302 and
498-A IPC and Altered FIR is marked as Ex.P.18. P.W.19 effected the arrest of A2-husband of the deceased Manjula at about 12.00 Noon on 20.09.2010 and in the presence of one Rajkumar [P.W.12] and Chandru. A2 voluntarily came forward to give a confession statement and in the confession statement, P.W.12 and Chandru have signed as witnesses under Exs.P.19 and 20 respectively. A2 has also signed the same and his signature in the confession statement was marked as Ex.P.21 [subject to objections]. P.W.19 examined P.W.11-the doctor who conducted the autopsy. He also made a request to the Revenue Divisional Officer, Tiruvarur, to conduct inquest on the dead body of the deceased and the said official has also conducted the same and the Inquest Report is marked as Ex.P.22. The statement of Dr.Raji [P.W.16], the Casualty Medical Officer was also recorded and P.W.19 examined P.W.17, the Inspector of Police who originally recorded the statement of the victim Manjula and registered the FIR ; P.W.14 and others and recorded their statements. He also recorded the statement of P.W.15-the Judicial Magistrate who recorded the Dying Declaration of the deceased and after completion of the investigation, has filed the charge sheet / final report before the learned Judicial Magistrate No.1, Nagapattinam, who took it on file in PRC.No.12/2012. The Committal Court had summoned both the accused and furnished them with copies of the documents u/s.207 Cr.P.C., and having found that the case is exclusively tried by the Court of Sessions, committed the same to the Principal Sessions Court, Nagapattinam and the said Court, in turn, had made over the case to the Fast Track Mahila Court, Nagapattinam, who took it on file in SC.No.75/2012.
5.13 The prosecution, in order to sustain their case, examined P.Ws.1 to 19 and marked Exs.P.1 to 22 as well as M.Os.1 to 3.
5.14 The accused 1 and 2 were questioned under section 313[1][b] Cr.P.C., with regard to the incriminating circumstances made out against them in the evidences rendered by the prosecution and they denied it as false. The accused did not file any documents nor let in any oral evidence.
5.15 The Trial Court, on consideration and appreciation of the oral and documentary evidences and other materials, had convicted the appellant/A1 for the commission of the offence u/s.304 [Part I] IPC and imposed the sentence of rigorous imprisonment for ten years and fine, with a default sentence and acquitted A2. The prosecution did not seek for enhancement of the sentence awarded to the appellant/A1 and did not challenge the acquittal of A2. Challenging the legality of the conviction and sentence of the Trial Court, the appellant/A1 has preferred this appeal.
6 Mrs.Greetha Senthilkumar, learned counsel for the appellant/A1 had made the following submissions:-
[a] The close relatives of the deceased Manjula including P.Ws.7, 8 and 9 have turned hostile and also the Mahazar witnesses, who were examined, viz., P.Ws.9 and 10, have also turned hostile. So also P.Ws.1 to 5 and the conviction was solely based on the Dying Declaration recorded by P.W.15-Judicial Magistrate under Ex.P.6.
[b] Dr.K.Sivaraman, who is said to have given the Certification as to the fit and conscious state of mind of the deceased, was not at all examined.
[c] P.W.17, on receipt of the wireless message, has gone to Tiruvarur Government Hospital and recorded the statement of the victim Manjula under Ex.P.9, based on which, registered Ex.P.10-FIR and subsequently, P.W.19 went and recorded the statement of Manjula under Ex.P.15 and there are inconsistencies between the Dying Declaration recorded by P.W.15 Judicial Magistrate under Ex.P.6 and the statements recorded by P.W.17 under Ex.P.9 and P.W.19 under Ex.P.15 and since there are inconsistencies in the statements given by the victim to the police and the Dying Declaration given by her to P.W.15-Judicial Magistrate, it is not safe to convict the appellant/A1 on the sole basis of the judicial Dying Declaration.
7 Alternately, it is pleaded by the appellant/accused that admittedly, prior to the alleged commission of the offence, there was a wordy quarrel/altercation between the deceased Manjula and the appellant/A1 and though the Trial Court has recorded the conviction for the offence u/s.304 [Part I] IPC and imposed the sentence of rigorous imprisonment for 10 years with a fine and default sentence, taking into consideration of the fact that the appellant/A1 is aged 58 years and also suffering due to age related ailments, the conviction and sentence may be altered to section 304[Part II] IPC and the sentence may be reduced accordingly.
8 Per contra, Mr.R.Ravichandran, learned Government Advocate [Crl.Side] has invited the attention of this Court to the testimony of P.W.15-Judicial Magistrate, who recorded the judicial Dying Declaration under Ex.P.6, Ex.P.9-statement recorded by P.W.17 and Ex.P.15-statement recorded by P.W.19 and would submit that in all the three statements, the victim Manjula had clearly stated that it was her father-in-law [appellant/A1] who poured kerosene from the lamp and with the use of match stick, set her ablaze and the opinion of the doctor who conducted autopsy, viz., P.W.11, coupled with her certificate-Ex.P.5 would clearly reveal that the deceased had died on account of burn injuries. He has also invited the attention of this Court to the decision rendered by the Hon'ble Supreme Court of India reported in 2010 [9] SCC 1 [Atbir Vs. Government of NCT of Delhi], and would submit that the Apex Court has culled out the principle relating to the Dying Declaration and if after careful scrutiny, the Court is satisfied that the Dying Declaration is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it on the basis of conviction, even if there is no corroboration. But, in the case on hand, the earliest statement of the victim to P.W.17 under Ex.P.9 corroborates with the judicial Dying Declaration under Ex.P.6 recorded by P.W.15 and also Ex.P.15 recorded by P.W.19 and the Trial Court has also taken a lenient view of wordy altercation prior to the occurrence and had imposed the appellant/A1 with the sentence of rigorous imprisonment for 10 years while convicting him for the offence u/s.304 [Part I] IPC and since the reasons assigned by the Trial Court are based upon proper appreciation of the oral and documentary evidences, this Court may not interfere with the same and prays for dismissal of this appeal.
9 This Court paid its anxious consideration to the rival submissions made and also perused the oral and documentary evidences and other materials placed on record including the impugned Judgment as well as the original records.
10 The following questions arise for consideration:-
[a] Whether the Dying Declaration in the form of statement recorded by P.W.17 under Ex.P.9 ; the Judicial Dying Declaration recorded by P.W.15 under Ex.P.6 and the statement recorded by P.W.19 under Ex.P.15 of the victim, are consistent and corroborate with each other as to the overt act on the part of the appellant/A1?
[b] Whether the reasons assigned by the Trial Court for convicting the appellant/A1 u/s.304 [Part I] and imposition of the sentence of 10 years rigorous imprisonment with a fine and default sentence, are sustainable?
Question NO.1:-
11 Witnesses, P.Ws.1 to 5 have turned hostile, so also P.W.6-father of the deceased ; P.W.7-mother of the deceased and P.W.8-brother of the deceased. The Mahazar witnesses to the arrest and recovery, viz., P.Ws.9 and 10 have also turned hostile.
12 P.W.17-the Investigating Officer, was the Sub Inspector of Police of Kilvelur Police Station and he received the wireless message on 13.09.2010 from Tiruvarur Government Hospital and went there and found the injured Manjula admitted as an In-Patient lying with burn injuries throughout the body and after recording her statement, got her left thumb impression and the said statement is marked as Ex.P.9, based on which, he registered the case in Cr.NO.503/2010 for the offence u/s.307 IPC at about 12.00 Noon and the printed FIR was marked as Ex.P.10. This Court has perused Ex.P.9, wherein the victim Manjula after narrating the events had stated that her father-in-law [appellant/A1] asked for the ring and she told that somebody might have taken the ring and he castigated her by stating that whether she came there to lead the matrimonial life or to brand everybody as thief and poured kerosene on her from the plastic bottle [M.O.1] and lighted her with the match stick [M.O.3] and raising alarm, she went out of the house and she was saved by the neighbours and was admitted in the hospital.
13 Dr.K.Sivaraman, was the Casualty Medical Officer and on seeing the precarious condition of the victim, made a request under Ex.P.7 to the Medical Officer, Tiruvarur Medical College Hospital for recording her Dying Declaration and P.W.15, on receipt of information, went to the hospital for the purpose of recording the Dying Declaration and a certification as to the physical and mental state of mind was accorded by Dr.K.Sivaraman under Ex.P.6.
14 P.W.15-Judicial Magistrate, independently and after ascertaining the physical and mental capability of the victim to give the Dying Declaration, had recorded her Dying Declaration and having found that she was unable to subscribe her signature, he got her left thumb impression and at the time of recording the said Dying Declaration, except him, Duty Doctor and the victim, nobody was present in the Ward and the Dying Declaration is marked as Ex.P.6.
15 In Ex.P.6, the victim had told the Judicial Magistrate that her father-in-law [appellant/A1] had also asked her to bring the kerosene lamp and from the lamp, he poured kerosene and lighted her and at that time, nobody was present and prior to that, on account of the fact that a ring was lost, she was beaten by her husband-A2 and he went to Aandhakudi and her father-in-law has done that act on account of the same.
16 P.W.19-the Station House Officer of Kilvelur Police Station also went to Tiruvarur Government Hospital and recorded her statement u/s.161[3] Cr.P.C. under Ex.P.15, wherein she has stated about the event just happened prior to immolation and she would further state that from the plastic bottle [M.O.1], kerosene was poured upon her by the appellant/A1 [father-in-law] and he lighted the match stick and put it on her.
17 It is the primordial submission of the learned counsel for the appellant/A1 that there is inconsistencies with regard to pouring of kerosene for the reason that in one of the statements, the victim had told that the kerosene was taken from the lamp and was poured upon her and she was lighted and whereas, in two other statements, she told that the kerosene from the bottle was used for committing the act of immolation. In the considered opinion of the Court, the said submission lacks merit and substance for the reason that insofar as the act of immolating Manjula by her father-in-law [appellant/A1] is concerned, the versions in all the three statements are consistent with each other.
18 Dr.K.Sivaraman, has also given a certification as to the physical and mental capability of the victim to give Dying Declaration and P.W.15-Judicial Magistrate, has also independently ascertained the said capability and recorded the Dying Declaration of the victim Manjula. In the considered opinion of the Court, the statement recorded by P.W.17 under Ex.P.9 ; the judicial Dying Declaration recorded by P.W.15 under Ex.P.6 and the statement recorded by P.W.19 u/s.161[3] Cr.P.C., under Ex.P.15 are consistent with each other as to the overt act on the part of the appellant/A1 to do away with the life of the victim Manjula.
19 P.W.11, the doctor who conducted the autopsy, in her Postmortem Certificate [Ex.P.5] had also opined that the deceased had died on account of burn injuries.
20 In the decision reported in 2010 [9] SCC 1 [Atbir's case [cited supra]], the Hon'ble Apex Court, after referring to its earlier decisions reported in 2008 [17] SCC 190 [Panneerselvam Vs. State of Tamil Nadu] and 1992 [2] SCC 474 [Paniben Vs. State of Gujarat], and extracted the analysis of the above said decisions in paragraph No.22:-
22 The analysis of the above decisions clearly shows that:-
i.Dying Declaration can be the sole basis of conviction if it inspires the full confidence of the Court.
ii.The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring prompting or imagination.
iii.Where the court is satisfied that the declaration is trye and voluntary, it can base its conviction without any further corroboration.
iv.It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
v.Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.
vi.A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.
vii.Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.
viii.Even if it s a brief statement, it is not to be discarded.
ix.When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.
x.If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.
21 One of the principles is that it cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence and if after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.
22 The Hon'ble Apex Court, in the recent decision reported in 2017 [1] SCC 529 [Ramesh and Others Vs. State of Haryana], had held that the dying declaration is the substantive piece of evidence and may form the sole basis of conviction if found reliable. In the considered opinion of this Court, Exs.P.9,6 and 15 recorded by P.Ws.17, 15 and 19 respectively, corroborate with each other with regard to the overt act on the part of the appellant/A1 and therefore, the truth or otherwise of the same, cannot be doubted.
QUESTION No.2:-
23 Now, coming to the plea / alternate submission made by the learned counsel for the appellant/A1 for alteration of the conviction from 304 [Part I] IPC to one of
section 304 [Part II] IPC and for the consequence reduction of sentence, this Court is of the view that the Trial Court has shown sympathy and leniency in convicting the appellant/A1 for the commission of the offence u/s.304 [Part I] IPC and sentencing him to undergo 10 years rigorous imprisonment with a fine and default sentence, despite the fact that the dying declaration of the victim/deceased Manjula has clearly proved the fact that it was the appellant/A1 father-in-law of the deceased who poured kerosene and set her on fire and ultimately, caused her death.
24 This Court, on an independent application mind and materials placed before it, is of the view that there is no error apparent on the face of the record or infirmity in the reasons assigned by the Trial Court for convicting the appellant/A1 for the commission of the offence u/s.304 [Part I] IPC as stated above.
25 In the result, the Criminal Appeal is dismissed and the conviction and sentence imposed on the appellant/A1 by the Trial Court in SC.No.75/2012 vide impugned judgment dated 07.01.2015 for the commission of the offence u/s.304 [Part I] IPC are hereby confirmed. The period of sentence already undergone by the appellant/A1 is ordered to be given set-off under
section 428 Cr.P.C.