(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Principal Sessions Division, Vellore District, made in S.C.No.43 of 1997 whereby the sole accused/appellant stood charged under Sec.302 IPC, tried, found guilty as per the charge of murder and awarded life imprisonment along with a fine of Rs.1000/- and default sentence.
2.The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.Ws.3 and 4 are the mother and father of the deceased Sasikala respectively. The accused who already got married having two children, desired to marry the deceased Sasikala, a graduate, who was also working in a School as a Teacher. She also gave consent for the same even after knowing the fact that the first wife of the accused was alive. P.Ws.3 and 4 opposed the same. Despite that, they performed the marriage. P.W.6 is the Executive Officer of the Temple where the marriage took place, and P.W.7 is the Priest, who performed the marriage. After the marriage, they had the residence in the upstairs of the premises belonging to P.W.1 Govindasamy Mudaliyar. P.W.2 is the neighbour.
(b) On 29.5.1994, the first wife of the accused came to the house and quarreled with him. The accused beat her. On 5.6.1994, P.W.3 presented a thali and other jewels and utensils. On 21.6.1994, P.W.1 gave a diary of the deceased to P.W.3. On 22.6.1994, P.Ws.3 and 4 when they were in their house, at that time the accused made the demand for money and 10 sovereigns of gold and ill-treated the deceased. On that day, at about 2.00 P.M., when the deceased and the appellant were in the house, he was demanding money and jewels, but she could not meet the demand. Immediately, he poured kerosene on her and set her ablaze. She sustained burn injuries.
(c) P.Ws.3 and 4 accompanied the daughter along with the accused and proceeded to the Government Hospital, Gudiyatham, where P.W.8, the Doctor, was on duty. She was admitted in the hospital, where she was given treatment. Ex.P7 is the accident register copy in that regard. Immediately, an intimation was given to the Judicial Magistrate of the place. Accordingly, P.W.9, the Judicial Magistrate, Gudiyatham, came to the hospital immediately, and he also recorded the dying declaration of the deceased after ascertaining that she was conscious, oriented and also in the state of mind to give the dying declaration. After it was recorded, at the end P.W.8, the Doctor, has given a certificate, which is marked as Ex.P10, that she was conscious. The dying declaration proceedings are marked as Ex.P11.
(d) On intimation, P.W.15, the Sub Inspector of Police, attached to the respondent police station, proceeded to the hospital and received the complaint, Ex.P2, from Sasikala, which was also attested by P.W.4. Then he came to the police station and registered a case in Crime No.383/94 under Sec.307 IPC. The printed FIR, Ex.P19, was despatched to the Court through a Constable.
(e) Thereafter, P.W.15 took up the case for investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3, and a rough sketch, Ex.P20. Then, he recovered M.O.1, kerosene tin, M.O.2, match box, M.O.3, broken glass bangles, M.O.4, partly burnt violet saree, M.O.5, partly burnt bra, M.O.6, partly burnt spectacle, and M.O.7, two burnt matchsticks, under a cover of mahazar, Ex.P4.
(f) On 23.6.2994, P.W.16, the Inspector of Police of the Circle, took up the case for further investigation. The accused was arrested on 24.6.1994. He came forward to give a confessional statement. The same was recorded. He was sent for judicial remand. Despite the treatment Sasikala died on 28.6.1994. Then, the case was amended to Sec.302 I.P.C. The express report, Ex.P21, was sent to the Court.
(g) A requisition was given to the Revenue Divisional Officer. P.W.13, the R.D.O., proceeded to the hospital and in the presence of the witnesses and panchayatdars, conducted inquest on the dead body and prepared an inquest report, Ex.P18. Thereafter, the Investigator gave a requisition to the hospital authorities for the purpose of autopsy.
(h) P.W.12, the Doctor, attached to the Government Hospital, Vellore, on receipt of the said requisition, conducted autopsy on the dead body of Sasikala and has issued a postmortem certificate, Ex.P17, with her opinion that the deceased would appear to have died about 8 to 16 hours prior to postmortem due to shock due to septicemia due to extensive burns.
(i) P.W.17, the Deputy Superintendent of Police, Gudiyatham, took up further investigation. He examined the witnesses and recorded their statements. The case was altered to
Sections 302 and
304(B) of I.P.C. The express report, Ex.P22, was despatched to the Court. All the material objects were subjected to chemical analysis. Ex.P14 is the chemical analyst's report. P.W.18, the Deputy Superintendent of Police, took up further investigation and on completion of investigation, filed the charge sheet against the accused under Sec.302 IPC.
3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 19 witnesses and also relied on 22 exhibits and 7 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. No defence witness was examined. Originally, the trial Court heard the arguments advanced and took the view that the prosecution has not proved the case beyond reasonable doubt, and hence acquitted the accused.
4.The order of acquittal was challenged by the mother of the deceased, P.W.3, by way of revision in Crl.R.C.No.503/98 before this Court. This Court considering the same, remitted the matter back to the trial Court for hearing on the evidence recorded and directed the trial Judge to give opportunity to both the parties for putting forth their arguments and take a decision. It was actually challenged by the accused before the Supreme Court. The Apex Court had an occasion to consider the averments made and issued a direction to the trial Court to consider the evidence on record, but uninfluenced by the observations of the High Court made in the order of remand and dispose of the matter on merits and in accordance with law. Accordingly, on remittal, the case was taken up by the trial Court for consideration. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and thus rendered a judgment of conviction and sentence which is the subject matter of challenge before this Court.
5.Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr.V.Gopinath has made the following submissions:
(a) According to the prosecution, the occurrence has taken place on 22.6.1994 at about 2.00 P.M. in the house of the accused. P.W.1 is shown as the owner of the property where they were residing, and P.W.2 is the neighbour. P.Ws.3 and 4 are the parents of the deceased. A perusal of the evidence of P.Ws.3 and 4 would indicate that they were actually opposing the marriage. Despite the same, invitation was served upon them; but, they did not attend the marriage. Thus it would be quite clear that they developed a grudge against the accused.
(b) P.Ws.3 and 4 have candidly admitted that from the place of occurrence, they accompanied the deceased and took her to the hospital. It is further to be noted that they were present near the bed where the deceased was lying all along the time. Thus there was all possibility of them tutoring the deceased in view of the grudge they entertained. They have actually tutored the deceased to give all versions possible against the accused.
(c) In the instant case, even according to P.W.1, a diary was handed over by the deceased which was in turn to be handed over to P.W.3. P.Ws.3 and 4 have admitted that such a diary was handed over, and the same was also placed in the hands of the police at the time of investigation; but the said diary has not seen the light of the day, and it was not produced before the trial Court. Had it been produced, it would have shown that it has got a clear reflection over the case.
(d) Much reliance was placed upon three documents by the prosecution namely the accident register copy, Ex.P7, the dying declaration given to P.W.9, the Judicial Magistrate, as found in Ex.P11, and the statement made by the deceased to P.W.15, the Sub Inspector of Police, which is marked as Ex.P2. A perusal of all the three would clearly indicate that many discrepancies that could be possible were available.
(e) As far as the motive part is concerned, according to the prosecution, there was a demand of dowry by the accused, but it was not met by the deceased, and by this, he was aggrieved over the same, and thus he poured kerosene and set her ablaze. As regards the motive, Ex.P11, the dying declaration, alleged to have been given to the Judicial Magistrate, if looked into, does not disclose the said motive for the act of the accused. On the contrary, there is a narration of the demand of dowry, and it was not given. All are found in Ex.P2, the statement, given by her.
(f) The time of occurrence is shown in both the documents as 2.00 P.M.; but in the earliest document Ex.P7, the accident register copy, it is shown as 2.45 P.M. While the dying declarations would differ in material particulars, then the benefit should go to the accused, and they should not be relied upon.
(g) In the instant case, P.Ws.3 and 4 have given different versions. As far as the oral dying declaration alleged to have been given by her is concerned, such a declaration could not have been made by the deceased at all.
(h) In this case, the occurrence has taken place at about 2.00 P.M., and the case came to be registered by 4.00 P.M. according to P.W.15. But, the FIR has reached the Judicial Magistrate at about 10.00 P.M., though the Judicial Magistrate's Court is situated within one kilometer. Thus all would go to show that inconsistent and developed versions are found. Under the circumstances, it would be highly unsafe to sustain a conviction on that evidence.
6.The learned Senior Counsel relied on a decision of the Apex Court reported in (2007) 3 SCC (CRI) 94 (MOHAN LAL AND OTHERS V. STATE OF HARYANA) for the proposition that the presence of the relatives at the time of recording of dying declaration would suffice to reject the same. He also relied on a decision of the Supreme Court reported in (2008) 2 SCC (CRI) 637 (AMOL SINGH V. STATE OF MADHYA PRADESH) for the proposition that when the dying declarations are multiple and inconsistencies are found, those discrepancies would suffice to reject that evidence.
7.The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
8.It is not in controversy that one Sasikala, the second wife of the accused/appellant, pursuant to an incident that took place at about 2.00 P.M. On 22.6.1994, was taken to the Government Hospital at Gudiyatham, and despite treatment, she died on 28.6.1994. This fact that she died out of burn injuries was not a subject matter of controversy before the trial Court. Apart from that, the Doctor who conducted postmortem following the inquest made by the Investigator, has been examined, and he has given categorical evidence as a witness and has also produced a postmortem certificate. The contents found therein would indicate that she died out of burn injuries. Hence the trial Court was perfectly correct in recording that she died out of burn injuries.
9.In order to substantiate the charge levelled against the accused that it was he who poured kerosene and set her ablaze, the prosecution relied on the following circumstances:
(i) The oral dying declaration given by the deceased when she was taken to the hospital from the place of occurrence.
(ii) The statement made by the deceased and recorded by the Doctor P.W.8 in the accident register copy at the earliest which is marked as Ex.P7.
(iii) The dying declaration given by the deceased to P.W.9, the Judicial Magistrate, Gudiyatham, at about 3.45 P.M., which was actually marked as Ex.P11.
(iv) The statement made by the deceased to P.W.15, the Sub Inspector of Police, at about 4.00 P.M. in the hospital, which is marked as Ex.P2.
10.The prosecution relied on the above circumstances, and the trial Court has also accepted the same. From the available materials and on analysis of the evidence also, it is thoroughly clear that the prosecution has brought home the guilt of the accused, and the contentions now put forth by the learned Senior Counsel do not carry merit for the following reasons.
11.It is not in controversy that the accused had already married and had first wife alive and two children also. Even after knowing that fact, the deceased Sasikala had married him. From the evidence of P.Ws.3 and 4, the parents of Sasikala, it would be quite evident that they did not attend the marriage at all, and they have also not given any jewels or utensils at the time of marriage; but, P.Ws.3 and 4 have categorically spoken to the fact that sometime later, they pacified themselves, and they have given some jewels and utensils to Sasikala; but, she was reporting that he was making demand for dowry and jewels. Hence the comment made by the learned Senior Counsel that P.Ws.3 and 4 did not attend the marriage despite invitation since the marriage was opposed by them, and hence they developed a grudge against the accused, and there was an occasion for tutoring cannot be accepted even for a moment. From the evidence of P.Ws.3 and 4, it would be quite clear that though they did not give consent for the marriage earlier, some time after the marriage, P.W.3, the mother of the deceased, went to her house and gave jewels and utensils. This would be indicative of the fact that they pacified themselves, and they also took it in the ordinary course. Therefore, the comment made before this Court that they developed a grudge cannot be accepted.
12.It is true that P.Ws.3 and 4 have categorically admitted that immediately after the occurrence, they accompanied the accused to the hospital when the deceased was taken in an autorickshaw. At this juncture, it is pertinent to point out that by the mere presence of P.Ws.3 and 4 it cannot be inferred that they have actually tutored the deceased. Now the circumstances are cogent which, in the considered opinion of the Court, would be pointing to the act and guilt of the accused.
13.Firstly, the occurrence has taken place at about 2.00 P.M. Immediately she was taken in an auto, and P.W.8 was the duty Doctor at the Government Hospital, Gudiyatham. The earliest document is the accident register Ex.P7. In Ex.P7, it is clearly recorded that she was conscious, and further it was her husband who poured kerosene and set her ablaze.
14.Secondly, an intimation was given to the Judicial Magistrate, Gudiyatham, P.W.9, who arrived at the hospital at about 3.45 P.M., and she has narrated how the incident has taken place. It is also mentioned therein that it was her husband who poured kerosene and set her ablaze. It is pertinent to point out that as far as this dying declaration recorded by the Judicial Magistrate is concerned, Ex.P10 was the certificate issued by the Doctor to the effect that she was conscious, oriented and also in a state of mind to give the declaration. This Court is unable to see any infirmity in the recording of dying declaration.
15.Thirdly, it was P.W.15, the Sub Inspector of Police, who on intimation went to the hospital and recorded the statement of the deceased which is marked as Ex.P2. Now at this juncture, the learned Senior Counsel brought to the notice of the Court that certain discrepancies are found between Ex.P2 and Ex.P11. It remains to be stated that Ex.P11, the dying declaration, recorded by the Judicial Magistrate, is earlier in point of time, and in that, it has been clearly stated by the deceased that he was in the habit of demanding dowry and money also. If this is taken along with what is found in Ex.P2, then the same cannot be considered to be a discrepancy at all either in motive or in the other part.
16.It is true that there are two dying declarations, and they were placed before the trial Court. Now, the learned Senior Counsel would submit that when multiple dying declarations are there and inconsistencies are also found, those dying declarations should be rejected, and a conviction cannot be sustained for which he relied on the decision of the Supreme Court reported in (2008) 2 SCC (CRI) 637 (AMOL SINGH V. STATE OF MADHYA PRADESH). This Court cannot have any quarrel on the decision. But, it is pertinent to point out that in a given case like this, as far as the appreciation of evidence is concerned, the Court must look into when there are number of dying declarations whether there is consistency throughout. When the dying declarations are compared as to the statement made by the deceased that there was a demand of dowry and jewels and on the day it was he who poured kerosene and set her ablaze, this Court is able to see consistency. Under such circumstances, though the dying declarations are given in plural, the consistency is found. Therefore, the decision relied on by the learned Senior Counsel for the appellant cannot be applied. It can be well stated that the prosecution has brought home the guilt of the accused by proving all the documents. Though there are multiple dying declarations, there is consistency pointing to the guilt of the accused since it has come from the mouth of the deceased when she was conscious, oriented and also in a state of mind. Under the circumstances, the trial Court was perfectly correct in marshaling the evidence and found the appellant guilty as per the charge. There is nothing to interfere in the judgment of the trial Court either factually or legally.
17.Accordingly, this criminal appeal fails, and the same is dismissed confirming the judgment of the trial Court. It is reported that the appellant is on bail. Hence the Sessions Judge shall take steps to commit him to prison to undergo the sentence.
nsv To:
1.The Principal Sessions Judge Vellore
2.The Deputy Superintendent of Police Gudiyatham (Crime No.383/94 Gudiyatham Town Police) Vellore Dist.
3.The Public Prosecutor High Court, Madras