BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03/04/2006 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU Criminal Appeal No.1772 of 2002 Arumugam ... Appellant vs. State, represented by Inspector of Police, Sivanthipatti, Cr.No.31 of 1998, Tirunelveli District. ... Respondent Criminal Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment of the learned Additional Sessions Judge, Fast Track Court No.I, Tirunelveli District, dated 11.04.2002, in Sessions Case No.230 of 1999. !For Appellant ... Mr.V.Kadirvel ^For Respondent ... Mr.K.Radhakrishnan, Addl. Public Prosecutor :JUDGMENT
(Delivered by P.D.DINAKARAN,J.) I - JUDGMENT UNDER APPEAL The appellant is the sole accused in Sessions Case No.230 of 1999 on the file of learned Additional Sessions Judge, Fast Track court No.I, Tirunelveli District. He questions the correctness of the judgment dated 11.04.2002 rendered in the above stated sessions case, whereunder the appellant was convicted for the offence punishable under Sections 498-A and 302 IPC and sentenced to undergo rigorous imprisonment for three years with a fine of Rs.1000/-, in default, to undergo rigorous imprisonment for six months under Section 498-A IPC and imprisonment for life with a fine of Rs.1000/- in default to undergo rigorous imprisonment for one year under Section 302 IPC. The appellant hereinafter is referred to as the accused.
II - CHARGE
2. The charge against the appellant is that at 10.00 a.m. on 11.02.1998, he demanded his wife Radha to get Rs.50,000/- from her mother and threatened that he would live with her only if she brings money, or otherwise, he would kill her, which is punishable under Section 498-A IPC and in the course of the same transaction, at 12.00 noon on 11.02.1998, with an intention to murder his wife, he poured kerosene on her body and set her on fire, causing her death, which is punishable under Section 302 IPC.
III - CASE OF THE PROSECUTION
3. The case of the prosecution, as discerned from the evidence of prosecution witnesses, is as follows.
3.1. The deceased Radha is the wife of the accused. P.W.1, Sulochana, is the mother of the deceased. P.W.2, Selvi, and P.W.5, Vijayalakshmi, are the younger sisters of the deceased. P.W.6, Ulagammal, and P.W.7, Sekar, are the younger sister and brother of P.W.1. P.W.8, Rajendran, is the husband of P.W.2. On 11.2.1998 at 10.00 a.m., the deceased came to the house of P.W.1 to give dosa flour. The deceased was doleful. P.W.1 questioned about her sadness. The deceased told her mother that the accused was demanding her to get Rs.50,000/- from mother. P.W.1 replied that she did not have money at present and asked her to pray God, He would give. The deceased went to her house. 3.2. On the same day at 2.15 p.m. the accused came to the house of P.W.1 and informed that the deceased set herself on fire. Immediately, P.Ws.1 and 2 went to the house of the deceased. The deceased was lying down with full of burn injuries and without any clothes. When P.W.1 questioned the deceased as to why she set fire on her, she replied that the accused alone did so. P.Ws.1 and 2 took the deceased to the hospital in an auto at 2.15 p.m. 3.3. P.W.3 Doctor Bakthavatchalam, Assistant Surgeon, on 11.2.1998 at 1.50 p.m. examined the deceased and found 100% burn injuries and as the pulse rate and blood pressure of the deceased were not normal, he admitted her in F.S. Ward and sent intimation to the police as well as to the Magistrate under Ex.P2. 3.4. P.W.13, Judicial Magistrate, on receipt of intimation from P.W.3, proceeded to the Palayamkottai Government Hospital and recorded the dying declaration of the deceased. Ex.P7 is the intimation received from the hospital and Ex.P8 is the dying declaration.
3.5. P.W.15, Rajasingh, Head Constable, Tirunelveli Medical College Hospital Out Post Police Station, on receiving the intimation, Ex.P2, at 2.15 p.m. on 11.2.1998, went to the hospital at 3.00 p.m. and recorded the statement of the deceased and also affixed her left thumb impression. Ex.P1 is the statement of the deceased. P.W.1 also attested the statement of the deceased, Ex.P1. P.W.15 sent wireless message to Sivanthipatti Police Station. On the same day at 6.15 p.m. the deceased died in the hospital.
3.6. On receipt of the death intimation at 7.00 p.m. on 11.2.1998 from Palayamkottai Government Hospital, P.W.18, Murugavel, Sub Inspector of Police, Sivanthipatti Police Station, went to the hospital and received the statement of the deceased Ex.P1, at 9.00 p.m. and registered a case in Crime No.31 of 1998 under Sections 498-A and 302 I.P.C. Ex.P10 is the printed first information report. He sent copies of the FIR to the Court as well as to the higher police officials through P.W.17 Police Constable.
3.7. P.W.19, Shanmugam, Inspector of Police, Sivanthipatti Police Station, took up the investigation in the case, reached the scene of occurrence at 10.30 p.m. on 11.2.1998 and conducted an enquiry. He conducted inquest over the dead body between 9.00 a.m. and 12.00 noon on 12.2.1998, prepared the inquest report Ex.P11 and thereafter, sent the body for postmortem through police constable, P.W.16 with requisition, Ex.P3. He made an observation and prepared observation mahazar Ex.P6, drew rough sketch, Ex.P12, in the presence of P.Ws.6 and 8. At 1.00 p.m. on 12.2.1998 he recovered M.O.1, plastic can, M.O.2 match box, M.O.3 ash, under mahazar Ex.P5 in the presence of P.Ws.8 and 9. He caused the place of occurrence and the dead body to be photographed through P.W.12. M.Os.4 and 5 series are the photos of the deceased and their negatives respectively. M.Os.7 and 8 are the photos of the scene of occurrence.
3.8. P.W.4 is the Doctor who conducted post mortem on the body of the deceased and found the following injuries:
"1. Epidermodermal burns seen on head, face neck front and back chest including both breasts, abdomen, perineum including genitalia, entire back, including both gluteal region; both upper limbs front and back, both lower limbs front and back except sole of feet free of burns. The base of the burnt area was red in colour.
2. Singeing of scalp hair in front and back. Eye-brows, eye-lashes, axillary and pubic hair present.
3. De-gloving of skin of hands and feet noted.
4. Surgical cut down seen on the inner aspect of right ankle. The doctor was of the opinion that the deceased would have died of extensive burns. Ex.P4 is the post mortem certificate.
3.9. P.W.19, Inspector of Police examined P.Ws.1, 2 and 5 to 11 and recorded their statements. He arrested the accused at 6.30 a.m. on 13.2.1998 at Tirunelveli bus stand and enquired him in the presence of the witnesses. He sent the accused for judicial remand. On 20.2.1998, he examined the doctor who conducted post mortem, P.W.4 and recorded his statement.
3.10. Thiru.Kumaresan, Inspector of Police, who succeeded P.W.19, on completion of investigation and after following all the legal formalities filed the final report in the court against the accused under Sections 498-A and 302 IPC.
3.11. To prove its case, the prosecution examined 19 witnesses as P.Ws.1 to 19, marked exhibits P1 to 12 as well as M.Os.1 to 7.
IV - DEFENCE
4. When the accused was questioned under Section 313 of the Code of Criminal Procedure about the incriminating circumstances found in the evidence of prosecution witnesses, the accused denied them. No oral or documentary evidence was brought forth by the accused before the court.
V - JUDGMENT OF THE TRIAL COURT
5. The trial court, on consideration of the oral and documentary evidence placed before it, found the accused guilty and convicted and sentenced him as referred to earlier. Hence, the above appeal.
VI - CONTENTIONS AND FINDINGS 6.1. It is the admitted case of the prosecution and the appellant that the deceased was originally married to one Ali and even though there was no divorce between them, the deceased and the accused were living as husband and wife for nearly six years.
6.2. According to the prosecution, even one week prior to the date of occurrence, namely 11.02.1998, as per the statement of the deceased, Ex.P1, recorded by the police at 3.00 p.m. on 11.02.1998 and as per Dying Declaration of the deceased, Ex.P8, recorded by the Judicial Magistrate between 2.45 p.m. and 3.00 p.m. on 11.02.1998, there was a quarrel between the deceased and the accused; the accused was demanding a sum of Rs.50,000/- from the parents of the deceased; and the accused was beating and ill-treating the deceased for the same.
6.3. In the statement, Ex.P1, the deceased had stated that she married the accused six years before; they had no issue; the accused was not in employment for the past three years; the accused was harassing her and sold all her jewels; the accused was demanding the deceased to get Rs.50,000/- from her mother, otherwise threatened her that she could not live with him and he would do away her; on the fateful day, viz., on 11.2.1998, she went to her mother's place for giving dosa flour to her; on her returning at 12 noon, the accused demanded money from her; and since she replied in negative, the accused poured kerosene and set fire on her stating to die with that.
6.4. The Judicial Magistrate, P.W.13, after complying with the statutory formalities, recorded the statement of the deceased between 2.40 pm and 3.00 pm on 11.2.1998, wherein the deceased, in conscious state of mind, after understanding the questions put forth to her, stated that there was a quarrel between her and the accused for the past two or three days; her husband was without employment for the past three years; they got married four years back; they had no issue; on the date of occurrence, when the deceased went to her mother's place to hand over dosa flour, the accused asked her to get Rs.50,000/- from her father; he took away her jewels and pledged the same; she informed the accused that her father had no money; when she returned from her mother's place, the accused kept all his clothes ready; the accused stating the suggestion of his mother to locate a house near the house of the mother of the deceased and to stay with her for ten days and to do away her, made a mockery and therefore, the accused cried and prayed Jesus to take her life soon; and immediately, the accused poured kerosene and set fire on her and ran away.
6.5. Of course, the conviction and sentence is purely based on the dying declaration, Ex.P8.
6.6. The core contention of the learned counsel for the appellant is as to the validity and dependability of Ex.P8, dying declaration, on the following grounds.
(a-i) There cannot be two dying declarations recorded at the same time, namely at 3.00 pm. The statement of the deceased was recorded by the Police at 3.00 p.m. and marked as Ex.P1. Another statement, viz. dying declaration was recorded by P.W.13, Judicial Magistrate, between 2.45 p.m. and 3.00 p.m. and marked as Ex.P8.
(a-ii) We are unable to accept the same. On perusal of the original exhibits, we are satisfied that the Judicial Magistrate, P.W.13, after complying with the requirements for recording the dying declaration, as per Section 32 of the Indian Evidence Act and satisfying himself that the deceased was in a state of mind to understand the queries and answer the same, started recording the dying declaration at 2.45 p.m. and completed the same at 3.00 p.m. This fact is clearly noted in the dying declaration itself. On the other hand, Ex.P-1 was recorded by the Head Constable at 3.00 p.m. Therefore the contention that both Ex.P1 and Ex.P8 were recorded simultaneously is rejected.
(b-i) In Ex.P8 certain allegations are made against the mother-in-law of the deceased, namely the mother of accused, to the effect that she suggested her son (the accused) to locate a house near the house of the parents of the deceased, to live there for 10 days pretending to be happy and thereafter, to do away the deceased; on hearing the same, the deceased prayed JESUS to take her life peacefully; and immediately the accused, proclaiming that why God should take your life, poured kerosene on the deceased, set her on fire and ran away. This has taken place at 12.00 p.m. on 11.02.1998. On the other hand, there is no such mentioning about the conduct of the mother-in-law in the statement of the deceased, Ex.P1. Pointing out the above discrepancy, the learned counsel for the accused claims that the benefit should go the accused. (b-ii) In our considered opinion, non-mentioning of the allegations in Ex.P1 against the mother-in-law of the deceased as stated in Ex.P8, by itself, would not take away the veracity and quality of the dying declaration. In both the statements, Ex.P1 and Ex.P8, the common version of the deceased was that (i) there was a quarrel between the deceased and the accused few days before the date of occurrence; (ii) from then, there was a constant demand of dowry of a sum of Rs.50,000/- by the accused from the parents of the deceased with a threat of danger to life; (iii) on the fateful day, the accused husband demanded money and the deceased replied that she could not get money; and (iv) immediately, the accused poured kerosene on the deceased and set her on fire. Therefore, mere non mentioning of the allegations against her mother-in-law in Ex.P1, as stated in the dying declaration Ex.P8, would not affect the quality of the dying declaration.
(c-i) The statement of the Doctor, P.W.3, who first treated the deceased, and the Doctor, P.W.4, who conducted postmortem on the body of the deceased, is to the effect that the deceased sustained 100% burn injuries and therefore, the left hand thumb impression of the deceased, with ridges, could not have been obtained in Exs.P-1 and P-8, as found therein and the same creates a doubt in the manner in which Exs.P1 and P8 were brought into existence. In this regard, the learned counsel for the accused relies on the decision of the Supreme Court in State of Punjab vs. Gian Kaur and another (1998 SCC (Cri) 942), wherein it is held as follows:
"5.The High Court disbelieved the dying declaration on the ground that even though according to the medical evidence Rita had 100% burns, the thumb mark of Rita appearing on the dying declaration had clear ridges and curves. The High Court found the evidence of Dr.Ajay Sahni-PW 1 not reliable as he failed to satisfactorily explain how such a thumb mark could appear on the dying declaration when Rita had 100% burns over her body. The High Court relied upon the deposition of Doctor Aneja, who had performed the post-mortem and who has categorically stated that there were 100% burns over her body and both the thumbs of Rita were burnt. In view of such inconsistent evidence, the High Court was right in giving benefit of doubt to the respondents. It cannot be said in this case that the High Court has taken an unreasonable view."
(c-ii) In the above cited decision, there is a clear finding that the Doctor, who conducted postmortem has categorically stated that there were 100% burns over the body of the deceased. In the instant case, even though both Doctors, P.W.3 and P.W.4, who treated the deceased and who conducted post mortem, had stated that there was 100% burns over the body of the deceased, the Doctor, P.W.4, who conducted post mortem, had opined that the death was due to extensive burns. Even, there was no cross examination of the Doctor, P.W.4, who conducted post mortem. But, he had stated in the post mortem certificate that de-gloving of skin of hands and feet was found. On the other hand, the Judicial Magistrate, P.W.13, who recorded the dying declaration of the deceased, has categorically stated that after recording of the dying declaration, she obtained the left thumb impression of the deceased in Ex.P8. In Sree Vijayakumar vs. State (2005) 10 SCC 737, the Apex Court has held as follows: "14.The dying declaration recorded by the Judicial Magistrate cannot be assailed on any germane ground. We cannot accept the contention of the learned counsel for the appellants that the deceased would not have been in a position to sustain his consciousness and give a statement narrating the details of the incident. The evidence of the Magistrate, PW 2 is unequivocal that the deceased was conscious and was able to answer the questions. The certificate of the doctor (Dr.Lalita Kumari) who was with him was also obtained on the dying declaration. If some persons other than the accused attacked and burnt him there is no reason why the deceased should have thought of implicating the accused while leaving out the real culprits."
We do not see any material to disbelieve the thumb impression of the deceased affixed in Exs.P1 and P8.
(c-iii) That apart, the dying declaration, Ex.P8, was marked through the Judicial Magistrate, P.W.13, who recorded it. The accused did not avail the opportunity of putting any suggestion to the Magistrate by way of cross examination to substantiate that the thumbs of the deceased were completely burnt and therefore the Magistrate would not have obtained the thumb impression with the ridges as found in Ex.P8. Ex.P8, which was marked through P.W.13, had given an opportunity to the accused to cross-examine P.W.13 about the recording of the dying declaration, which the accused failed to avail it. The accused also had an opportunity to cross examine the two doctors, which also he had failed to avail. Finally, when he was questioned under Section 313 Cr.P.C., the accused did not avail that opportunity also.
(c-iv) On the other hand, when specific questions were put to the accused under Section 313 Cr.P.C., as to the incriminating circumstances under which Ex.P-8 was recorded, namely question Nos.23, 24 and 25, the accused had baldly stated that he was not aware of that.
"20. .. The purpose of asking questions during examination under Section 313 CrPC is to afford the accused personally an opportunity of explaining any incriminating circumstance so appearing in evidence against him. The accused may or may not avail the opportunity for offering his explanation. ...."
(c-vi) In the decision in Bejoy Chand Patra vs. State of West Bengal - 1952 (1) MLJ 411, the Supreme Court held as as follows:
"The facts of the case being free from any complications and the points in issue being simple, we find it difficult to hold that the examination of the appellant in this particular case was not adequate. To sustain such an argument as has been put forward, it is not sufficient for the accused merely to show that he has not been fully examined as required by section 342 of the Criminal Procedure Code, but he must also show that such examination has materially prejudiced him."
(c-vii) The Apex Court in the decision in Radha Kishan vs. State of U.P. - AIR 1963 S.C. 822 dealt with the question as to prejudice caused by non- compliance with Section 342 (Present section 313) cannot be allowed to be raised for the first time in the Appellate Court. The relevant portion of the judgment reads as follows.
"5...... In so far as the contravention of provisions of S.342, Cr.P.C. are concerned it is sufficient to point out that no grievance was made either before the Court of the Additional Sessions Judge or before the High Court that there was such a contravention and the appellant was prejudiced and we cannot allow the point to be raised for the first time here, the reason being that whether there was prejudice is a question of fact and cannot be permitted to be agitated for the first time in an appeal under Art.136 of the Constitution."
7. For the reasons aforementioned, we are unable to accept the contention of the learned counsel for the accused that it would not be safe to rely on the dying declaration of the deceased, Ex.P8. On the other hand, the dying declaration, Ex.P8, is clear and it satisfies the requirement of Section 32 of the Indian Evidence Act.
8. Coming to the question of conviction of the accused under Section 498(A) IPC, it is clear from the evidence of prosecution witnesses, dying declaration, Ex.P8 and statement of the deceased, Ex.P1, that the accused and the deceased lived as husband and wife for more than four years. Further there is overwhelming evidence to show that the accused demanded the deceased to get a sum of Rs.50,000/- from her parents and when she was not able to bring the same, the accused beat her and ill-treated her. Though a defence was raised that the deceased was already married to one Ali and there was no marriage between the deceased and the accused to attract an offence under Section 498-A IPC, it is not necessary that there should be a valid marriage. On the other hand, it is enough that if there is an evidence to prove that a man and a woman lived as husband and wife. In this case, there is evidence to show that the accused and the deceased lived as husband and wife for a period of more than four years. In such circumstances, we see no force in the contention of the learned counsel for the accused on this aspect.
9. From the above discussion, it is clear that the prosecution has proved its case that the accused subjected the deceased to cruelty and when she failed to meet the demand of the accused, he murdered her by pouring kerosene and setting fire on her. The trial court has rightly appreciated the evidence adduced on behalf of the prosecution and found the accused guilty under Sections 498-A and Section 302 IPC and convicted him thereunder and therefore, we do not find any reason or ground to interfere with the said judgment of the trial court.
In the result, the appeal fails and the same is dismissed. The conviction and sentence imposed on the appellant/accused by the trial court are confirmed.
gb/ATR/kpl Copies to:
1. The Additional Sessions Judge, Fast Track Court No.I, Tirunelveli District.
2. The Inspector of Police, Sivanthipatti, Tirunelveli District.
3. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.