(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.) This appeal is directed against the judgment of the Principal Sessions Judge made in S.C.No.99 of 2008 dated 12.06.2009 where by the accused was found guilty of offence under Section 302 I.P.C. and was convicted and sentenced to undergo life imprisonment along with a fine of Rs.1000/-, in default to undergo rigorous imprisonment for one year.
2.The brief facts necessary for the disposal of the appeal are stated as follows:
(a) P.W.1 to P.W.5 are the occurrence witnesses. P.W.13 had recorded the statement for registering the case. P.W.8 was the observation mahazar witness. P.W.7 and P.W.12 are the confession and seizure mahazar witnesses. P.W.8 was the Doctor who had given first aid to the deceased Nagarani and prepared the A.R.copy. P.W.11 was the Judicial Magistrate recorded the dying declaration of the victim. P.W.14 had done the investigation and filed the charge sheet. The victim was the wife of the accused. The accused was addicted to alcohol and he rendered himself jobless and therefore he used to quarrel with the deceased always and developed enmity towards his wife Nagarani. When she questioned about his jobless life, the accused, had planned to end the life of the victim and accordingly on 29.09.2007 at about 00.15 hours at the house of the accused when the wife Nagarani was in deep sleep along with her daughter, he poured kerosene on her body after removing his daughter from the side of his wife and lit fire on her and the said Nagarani who was engulfed with fire had sustained sever burn injuries. On her screaming for help, the witnesses P.W.1 to P.W.4 came to her rescue and the accused had fled away from the scene of occurrence, with his daughter.
(b) P.W.1 had poured water on her and tamed the fire and sent her to the hospital by engaging an auto rickshaw. P.W.2 also saw the accused fled away with his child. Victim Nagarani also told P.W.2 that her husband lit fire and ran away. P.W.3 and P.W.4 who were the neighbours, had seen the accused ran away from the scene of occurrence and victim also stated them that her husband lit fire on her. P.W.5 is the mother of the victim who had spoken to the effect that her daughter had phoned up to her and said she was burnt by the accused.
(c) Doctor who attended the victim on her arrival to the hospital was P.W.8 and he had examined her on the same day at 01.45 a.m. and he recorded the reasons for the accident that her husband poured kerosene and set her fire at 00.12 hrs. P.W.8 Doctor had also found that burn injuries found on her body was to an extent of 80%. The said facts were recorded in A.R. copy Ex.P5.
(d) On receiving the message, the Sub Inspector of Police P.W.13 had rushed to the K.M.C. hospital where she was admitted and he recorded her statement at 02.30 a.m. in Ex.P.10 and on that basis he had registered the case in Cr.No.560/2007 under
section 307 I.P.C. against the accused at 03.45 a.m on the same day. Immediately he despatched the express F.I.R to the court concerned and gave a requisition for recording dying declaration to the Chief Metropolitan Magistrate. On that request P.W.11 was nominated at 04.10. a.m he went to K.M.C hospital and saw the victim and ascertained the factors which are relevant and had recorded the dying declaration from the mouth of the victim. The victim Nagarani had spoken to her that her husband poured kerosene and set her ablaze. The Doctor who was present at that time had given certificate of consciousness and the Judicial Magistrate - P.W.11 had also recorded the dying declaration accordingly in Ex.P.7.
(e) Investigating Officer P.W.14, on receipt of records visited the scene of occurrence and prepared observation mahazar Ex.P1 and the Rough Sketch Ex.P.12 and recovered material objects at the scene of occurrence and in the presence of the witnesses examined the ocular witnesses and recorded their statement. Since the victim died on the same day by 11.55 a.m, after getting death intimation from K.M.C. hospital he altered the F.I.R through alteration report in Ex.P.13 and despatched the same to the court. Thereafter he conducted inquest by 15.00 hours and completed the same by 17.00 hours on that day. The inquest report prepared by him was produced as Ex.P.14. He also sent the body of the victim Nagarani with a requisition to conduct autopsy. Accordingly, P.W.9, Doctor conducted autopsy and found various burn injuries on the body of the deceased and had given the opinion that the deceased would appear to have died on the complications of burn injuries in the post mortem certificate- Ex.P.6.
(f) The Investigating Officer had arrested the accused on 30.09.2007 at about 07.00 a.m and the accused had given confession statement in the presence of P.W.7 and P.W.12 and on the basis of the disclosure, recovery of plastic can was made through the seizure mahazar - Ex.P.9 M.O.7 blue colour plastic can with some kerosene. Thereafter the material objects recovered from the place of occurrence and through the confession made by the accused were sent to the court and sought them to be subjected to chemical analysis by the Forensic Science Department. After the receipt of chemical report Ex.P.17, he has filed the final report against the accused under
section 302 I.P.C.
(g) The case was committed to the court of Sessions and it was taken on file and on appearance of the accused, necessary charges were framed. In order to substantiate the charges, the prosecution had examined P.W.1 to P.W.14 and relied upon Exs.P.1 to P.17 and material objects M.O.1 to M.O.7. 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 prosecution witnesses, of which the accused denied as false. The trial court, on hearing the arguments advanced on either side and on scrutinizing the materials available, took the view that accused had committed the offence of murder and he was liable to be punished under
section 302 I.P.C. and had awarded the life imprisonment along with fine. Aggrieved over the judgment, the accused has brought forth this appeal.
3. While canvasssing the case for the appellant, the learned counsel for the appellant would submit in his argument that the lower court had erred in relying upon the evidence of Prosecution Witnesses and the dying declaration said to have been given by the victim and had wrongly convicted the accused. He would further submit that the motive stated by the prosecution was feeble as the quarrel in between the husband and wife is natural in every house and it could not constitute a motive for murder. He would further submit that the evidence of P.W.1 cannot be accepted as he was not present and other witnesses had not spoken about pouring of kerosene by the accused on the victim and liting fire on her. He would also submit that dying declaration recorded by the Judicial Magistrate in Ex.P.7 was a tutored one and the victim was influenced by P.Ws 2 to 5 to depose against the accused. He would again insist the court that obtaining of thumb impression by the police and the toe impression by the Doctor from the same victim due to burn injuries would go a long way to show that the dying declaration obtained by the Judicial Magistrate without getting any of the impression from the victim lady would make it invalid. He would further submit that the trial court had not found that the victim was in a sound state of mind to give the dying declaration in the absence of examination of the Doctor who was said to have been present at the time of recording dying declaration. He would further submit that the trial court failed to see that the accused was having two children at the age of 4 years and 1 = years respectively, while imposing the sentence against him. He would submit that it is a fit case for acquittal and therefore, the judgment of the trial court has to be set aside.
4. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
5. By the evidence adduced on the side of prosecution, it had been clearly shown that the victim Nagarani was the wife of the accused and they were having two children born out of there wedlock and their was quarrel everyday in between the husband and wife. P.W.5-mother of the deceased would speak to the effect that the accused would not go for any work and on occasions he use to quarrel with the deceased Nagarani. According to the evidence of P.W.1 to P.W.4 who happened to be the neighbours, that on 28/29.09.2007 they heard the hue and cry of Nagarani in the midnight (early morning) and they saw Nagarani caught in fire and was screaming and P.W.1 had poured water followed by other witnesses and they sent her to the hospital in an autorickshaw. Their evidence would go to show that the victim told them that her husband had poured kerosene and lit fire. The Doctor who examined her at the hospital had prepared the Accident Register Ex.P.5. The said Doctor P.W.8 would speak to the effect that the victim Nagarani sustained 80% of the burn injuries and she was admitted in the hospital and she told that her husband poured kerosene on her and lit fire and therefore the burn injuries were caused to her. It is also found that the said Nagarani died due to burn injury by 11.55 a.m on 29.09.2007. The complaint was given by the victim Nagarani through the statement given by her to the P.W.13 prior to her death which is produced as Ex.P.10. In Ex.P.10 also she had categorically stated as follows:
@vd; fzth; ntiyf;F nghfhky; Foj;Jtpl;L tPl;onyna ,Ug;ghh;/ ,jdhy; mtUf;Fk; vdf;Fk; mof;fo jfuhW tUk;/ ,d;W 28.09.2007e; njjp mth; ntiyf;F nghfhjjhy; fhiyapy; ehd; nfl;nld;/ mjw;F mth; vg;g ghh;j;jhYk; cd;dhny nuhjidah ,Uf;F. ,d;dpf;F iel;Lf;Fs;s cd;id vd;d gz;nwd; ghU mg;god;D brhy;ypl;L btspna nghapl;lhU/ ,d;W 28.09.2007e; njjp ,ut[ 12/15 kzpf;F ehd; Jh';fp bfhz;oUe;j rkak; $py;byd;W jz;zp gl;w(>) khjphp ,Ue;jpr;rp. vGe;J ghu;j;jnghJ kz;bzz;bza; thrid vd; kPJ ,Ue;jpr;rp. mg;nghJ vd; fztu; jPf;Fr;rpia fpHpr;rp jP itj;J bfhSj;jptpl;lhh;/ ehd; rj;jk; nghlnt mth; btspg;gf;fkhf Xotpl;lhh;/ vd; rj;jj;ij nfl;L mf;fk; gf;fj;jpy; ,Ue;jt';f Xote;J jPia mizr;rp vd;id fPH;ghf;fk; M!;gj;jpupny nrh;j;jh';f//////@ After registering of the case by P.W.13, the learned Judicial Magistrate P.W.11had recorded dying declaration in Ex.P7 and the evidence of P.W.11 Judicial Magistrate would prove Ex.P.7. It was spoken by the victim Nagarani that her husband poured kerosene and lit fire when she was asleep. The dying declaration recorded by learned Judicial Magistrate P.W.11 was supported by the complaint given by the victim in Ex.P.10 and the foremost opinion given by the Doctor in Ex.P.5 Accident Register. The oral evidence adduced through P.Ws.1 to P.W.4 would also speak to the effect that the victim was telling them that her husband poured kerosene and lit fire.
6. The judgment of the Hon'ble Apex court reported in AIR 2002 SC 2973 in between (LAXMAN vs. STATE OF MAHARASHTRA) would come up with the following proposition of law:
" .... What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where itis proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
7. The evidence of P.Ws.1 to P.W.4 and the admission of the victim in the hospital immediately on the same night and the Accident Register in Ex.P.5 and thereafter the recording of statement by P.W.13 and the recording of dying declaration before the dawn of the day by P.W.11 would make the court to believe the version of the victim spoken before all officials.
8. However, alternatively the learned counsel for the appellant would insist in his argument that the said pouring of kerosene and liting of fire should have been taken place on the sudden provocation due to the quarrel between the husband and wife, which is taken place in every house and therefore the lower court was wrong in arriving to a conviction under
section 302 I.P.C.
9.He would also draw the attention of the court to a judgment of Hon'ble Apex Court reported in 2001 SCC (Cri) 714 between (AKHTARI BI (SMT) vs. STATE OF M.P) to a proposition of law that depriving the appellant from looking after his child would not only be against the interests of the child but against the interests of the society as well. He would again submit in his argument alternatively that the lower court had not given any consideration that the incident could have been happened due to a quarrel taken place in between the accused and the victim and the said incident would invoke only sudden provocation for the committing of the said crime.
10. This argument levelled by the learned counsel for the appellant cannot hold good because the dying declaration given by the victim on three occasions namely in Ex.P.5, Ex.P.10 and Ex.P.7 would go a long way to show that the victim was fast asleep along with her daughter and when she felt wet and awake, she could smell the kerosene and after her daughter was removed from bed immediately by her husband, he lit fire on her. If really the husband was provoked by the quarrel had by his wife namely the victim, he would have poured the kerosene at the time of quarrel had in between them. But he had waited for the victim to go for sleep and thereafter he had executed the plan. This should have been hatched in his mind in the morning itself, when he had quarrel with his wife and it was uttered against her that he would finish her in that night. The pretension of the husband by saying that he had bought the kerosene for cleaning the cycle parts would also go to show the clandestine and criminal action of the husband to execute his plan. The accused was said to have flied away as per the evidence of the witnesses of P.Ws.1 to 4. If he had really poured kerosene on his wife and lit fire on the sudden provocation he would have immediately understood his mistake and tried to extinguish the fire. On the other hand he had taken his daughter and galloped from the scene of occurrence. Actually one Valliammal, a relative of the victim accompanied her in the auto rickshaw arranged by the P.Ws.1 to 4 to the hospital. More over victim sustained 80% of burn injuries even at the place of occurrence, this would go a long way to show that the injuries caused by the accused on the victim Nagarani was not on provocation but on premeditation of the accused. The victim is none other than the wife of the accused who was expecting secured life from her husband, especially when she had discarded her parents due to the lover affairs had with the accused and lead a separate life with him. When such is the case, the husband who has to protect his wife had turned to be an enemy and had poured kerosene and lit fire without considering the life of their children. Certainly this circumstance would lead to an inference that the offence committed by the accused, a heinous one. When the accused himself has not considered the future of the life of their children, the lower court was right in convicting the accused under
section 302 I.P.C. Therefore, no revision is possible in awarding of sentence, since the minimum sentence for the offence under
section 302 I.P.C. is life imprisonment.
11. Therefore, the contentions raised by the learned counsel for the appellant that the lower court had landed in a wrong footing in convicting and sentencing the accused are liable to rejected.
12. The lower court had appreciated the evidence properly and had found the appellant guilty under
section 302 I.P.C for having caused the death of his wife by pouring kerosene on her and liting fire. This court is unable to notice any reason to interfere with the judgment of the trial court.
13. Accordingly, the criminal appeal fails and the same is dismissed, confirming the judgment of conviction and sentence passed by the trial Court.
(M.C.,J.) (V.P.K.,J.) 23.10.2009 Index : Yes/No Internet : Yes/No kpr To
1. The Principal Sessions Judge, Thiruvallur
2. Inspector of Police, Ambattur Estate,Police Station.
3. The Public Prosecutor, High Court, Chennai.
M.CHOCKALINGAM,J.
and V.PERIYA KARUPPIAH,J.
Kpr Crl.A.No.350 of 2009 23.10.2009.