(The judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Principal Sessions Division, Villupuram made in S.C.No.83/2009 whereby the sole accused /appellant stood charged, tried and found guilty as per the charge of murder and awarded life imprisonment.
2. The short facts necessary for the disposal of this appeal can be stated as follows:
(a)P.W.1 is the mother of the deceased Anjukam. She was living at Kondayamkuppam Village. The deceased Anjukam and the appellant/accused fell in love with each other and got married despite objection from either of the family members. During the relevant time, they were living at Tirukai village within the jurisdiction of the respondent Police Station. On the earlier occasion, the accused was often making demand for money from her parental house but she did not meet the same. Hence, she was tortured by him. He also entertained suspicion over the fidelity of the deceased. On the date of occurrence that was on 21.2.2007 at about 11.00 a.m., due to the above reasons, he poured kerosene on her and set fire on her. She sustained burn injuries. Immediately, the neighbours took her outside the house and laid her down. P.W.1 was informed about the same. On coming to know about the same, P.W.1 rushed to the village of the deceased and found her daughter with burn injuries all over the body. She along with the villagers took her to Government Hospital, Villupuram where P.W.10 doctor who was on duty gave initial treatment and also recorded the statement of the deceased. The Accident register copy was marked as Ex.P14. He advised P.W.1 to take her to Pondicherry for better treatment. Accordingly, P.W.1 took her to Pondichery and admitted her in Jipmer hospital. One Dr.Rajesh (not examined) who was on duty in Jipmer Hospital, Pondicherry, admitted her and gave treatment. The deceased gave dying declaration to Dr.Rajesh and he recorded the same which was marked as Ex.P.12 and the copy of Ex.P12 was marked as Ex.P11. P.W.8 Dr.Sathya Prabha was examined to speak about the fact that he knew the handwriting and signature of Dr.Rajesh through whom those documents were marked. On 21.2.2007 at 9.30 p.m., when P.W.7 Sub Inspector was on duty in the respondent Police Station, P.W.1 appeared and gave Ex.P9 report, on the strength of which a case came to be registered in crime No.17 of 2007 under
section 302 I.P.C. and the express F.I.R. Ex.P10 was dispatched to Court.
(b) On receipt of the copy of the F.I.R, investigation was taken up by P.W.11 Inspector of Police of that circle. He proceeded to the spot, made an inspection and prepared the observation mahazar marked as Ex.P2 and also drew a rough sketch Ex.P15 and thereafter, he went to the Jipmer hospital, Pondichery where he conducted inquest on the dead body of Anjugam in the presence of witnesses and panchayatdars and prepared Ex.P16 report. Thereafter a request was given to the Hospital for conduct of autopsy.
(c) P.W.6 doctor conducted autopsy on the dead body of Anjugam and gave the post mortem certificate Ex.P7 wherein he has opined that the deceased died out of burn injuries.
(d) Pending investigation the accused was arrested on 23.2.2007. He came forward to give confessional statement and the same was recorded in the presence of respective witnesses and the admissible part of the confessional statement was marked as Ex.P4. Following the same, he took the investigator and other witnesses to Ariyalur Thirukai Village and produced M.O.2 kerosene can which was recovered under a cover of mahazar Ex.P5. Then, he was sent for judicial remand. The investigator examined all the witnesses and on completion of the investigation, he filed a final report.
(e) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substaniate the charges the prosecution examined 11 witnesses and also relied on 16 exhibits and 2 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under
section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses and he denied them as false. No defence witness was examined. The Court heard the arguments advances on either side and took the view that the prosecution has proved the case beyond reasonable doubt and rendered the judgment of conviction and sentence as referred to above which is the subject matter of challenge before this Court.
3. Advancing the arguments on behalf of the appellant, the learned counsel would submit, according to the prosecution the occurrence has taken place on 21.2.2007 at 11.00 a.m.. According to prosecution, P.W.1 was the person who immediately came to the place of occurrence and took her to Villupuram Hospital where P.W.10 doctor gave initial treatment but P.W.1 has turned hostile. The contents of the F.I.R. could not be proved. Apart from this , the earliest document which has come into existence is Ex.P14, copy of the accident register. The same was recorded by P.W.10 doctor attached to Government Hospital Villupuram. P.W.10, doctor has deposed before that Court that Anjugam was conscious when she was brought to the hospital and she has made the statement to the effect that she poured kerosene on herself and attempted to commit suicide and the same was also recorded in Ex.P14. There is no reason to disbelieve the evidence of the doctor P.W.10 and also the contents in Ex.P14, accident register.
4.Added further learned counsel, the said doctor had deposed that P.W.1 was advised to take him to Pondichery Hospital for better treatment. P.W.1 took her to Pondicherry where one Rajesh doctor gave treatment but the said Rajesh was not examined but P.W.8 another doctor was examined to prove the hand writing and signature of Dr.Rajesh. Much reliance was placed on Ex.P11 dying declaration alleged to have been given by the deceased to the said Dr.Rajesh. A perusal of Ex.P11 would clearly indicate that not even a certification to the effect that the victim was in a sound and disposing state of mind or conscious enough to give such a statement was given. In the absence of any certification, in the said document, the prosecution would have examined to prove the fact but has not done so. Though P.W.8 knew the hand writing and signature of Dr.Rajesh, he was not competent to speak about the said fact. Under such circumstances, no evidentiary value could be attached to Ex.P11,dying declaration. On the face of the contents found in Ex.P11 accident register and the evidence of P.W.10 doctor from Villpuram Hospital, there is no reason to give any credence to the alleged dying declaration, Ex.P11.
5. Learned counsel would further submit that though it was mentioned in Ex.P11 dying declaration that there was an intimation at about 2.34 p.m. to the out-post Police, there was no response from the police. It is the case of the prosecution that P.W.1 went to the respondent Police Station and gave Ex.P9 report at 9.30 p.m. Thus, all would go to show that the document Ex.P11 cannot be given much weight at all. Further, it is reiterated that insofar as the evidence of P.W.1 is concerned, he has turned hostile. Hence, it is not useful to the prosecution case. The contents of Ex.P9 was not proved. Under such circumstances, in the absence of any direct evidence and since the circumstances placed before the Court was not proved, the trial Court should have acquitted the accused but has erroneously found the accused guilty. Under such circumstances, the judgment of the trial Court has got to be set aside and the accused has got to be acquitted.
6. The Court heard the learned Additional Public Prosecutor on the above contention and paid its anxious consideration on the submissions made.
7. It is not in controversy that the incident had occurred at 11.00 a.m. on 21.2.2007 and Anjugam wife of the appellant/accused was taken to Villupuram Hospital by P.W.1, mother of the deceased. After initial treatment, she was taken to Jipmer Hospital, Pondicherry. Despite treatment,she died at 4.20 a.m.. The case was registered by P.W.7 Sub-Inspector of Police under
section 302 I.P.C. and on receipt of the copy of the F.I.R., P.W.11, the Inspector of Police who took up investigation, conducted inquest on the dead body of Anjugam and after preparation of the inquest report, the dead body was subjected to post mortem and the doctor who has conducted autopsy has given opinion as a witness before the Court and also through the post mortem certificate that the deceased died out of burn injuries. The fact that the deceased died out of burn injures was never disputed by the appellant before the trial Court. Hence, it could safely recorded so.
8. In order to substantiate the charges leveled against the appellant that he poured kerosene on his wife Anjugam and set her ablaze, the prosecution, before the trial Court, placed much reliance on the single document Ex.P11 dying declaration alleged to have been given by Anjugam to Dr.Rajesh at Jipmer Hospital Pondicherry. It is pertinent to point out that in the instant case, there is no direct evidence to offer in order to prove the same. Therefore, the Court is afraid whether the above document could be relied upon to sustain the conviction for the following reasons.
In the instant case, it is needles to say that the prosecution had no direct evidence to offer to prove the fact that it was the appellant who poured kerosene on his wife Anjugam and set her ablaze. P.W.1, the mother of the deceased would depose that when she came to know about the burn injuries sustained by Anjugam, she went to her daughter's village and found her with burn injuries. The prosecution would claim that it was she who gave report to the respondent police but she denied the contents in the document. Under such circumstances, the contents of the document remains unproved. Thus, the evidence of P.W.1 is not in favour of the prosecution.
9. At this juncture, it has to be pointed out that at first, P.W.1 had taken Anjugam to Villupuram Government Hospital and it was P.W.10 doctor who has admitted Anjugam in the hospital. P.W.10 has categorically deposed that Anjugam was brought to the hospital at 12.30 hours and she was conscious and in disposing state of mind and she has also given statement which was recorded in Ex.P14,accident register copy. A perusal of the accident register and also the evidence of P.W.10 doctor would clearly indicate that Anjugam attempted self immolation and she poured kerosene on herself and attempted to commit suicide. The Court is unable to notice any reason to disbelieve Ex.P14, accident register, the earliest document which has come into existence, within a short span of time of the incident and the evidence given by P.W.10 doctor attached to Government hospital, Villupuram.
10. Further, it was P.W.1 who had taken Anjugam to Jipmer Hospital. According to the prosecution, Anjugam was admitted and medically examined and treated by one Dr.Rajesh and the said doctor was not examined but in order to prove his writing and signature another doctor, P.W.8. was examined. According to her, she knew Dr.Rajesh's hand writing and signature. Only through P.W.8, the copy of the alleged dying declaration Ex.P11 was marked and the original was marked as Ex.P12. A reading of the document would indicate that Anjugam has given statement that it was her husband/accused who poured kerosene on her and set her ablaze. The court is of the considered opinion that this document cannot be given evidentiary value for the reasons that the only competent person to speak about whether Anjugam was in a fit state of mind to give such a declaration was doctor Rajesh who recorded the same, but he was not examined. A perusal of the document would clearly indicate that no certification was made as required in law by the doctor who recorded the dying declaration stating that Anjugam was conscious and was in fit state of mind while giving dying declaration. In the absence of any evidence in that regard it cannot be presumed that she was in a fit state of mind to give such a declaration. In the instant case, to accept Ex.P14 copy of the accident register originally recorded by P.W.10 doctor Villupuram Hospital, P.W.10 was examined in Court. According to the said doctor the victim was conscious when she gave statement. Hence, the Court is unable to disbelieve the contents in Ex.P.14 accident register and the evidence of P.W.10 doctor examined in that regard. In the absence of any evidence to indicate that Anjugam was in a fit state of mind to give such dying declaration as found in Ex.P11, the Court is of the considered opinion that it would be highly unsafe to rely on Ex.P11 to sustain conviction. Hence, benefit of doubt has got to be given to the appellant, the appellant is entitled for acquittal and the judgment of the lower court has got to be made undone only by upsetting the same.
11. Accordingly, the judgment of conviction and sentence passed by the trial Court is set aside. The appellant is acquitted of the charges levelled against him. He is set at liberty forth unless his presence is required in connection with any other case. The bail bonds, if any executed by the appellant, shall stand terminated. The fine amounts, if any paid by him, shall be ordered to be refunded to him.
vsi To
1. The Principal Sessions Judge, Villupuram Division, Villupuram,
2. The Inspector of Police, Kedar Police Station, Villupuram District.
3. The Public Prosecutor, High Court, Chennai