BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :
18. 11.2014 CORAM THE HONOURABLE MR. JUSTICE A.SELVAM and THE HONOURABLE MR. JUSTICE V.S.RAVI Crl.A.(MD)No.245 of 2010 State rep.by Inspector of Police, Peraiyur Police Station, Ramanathapuram District, Crime No.30 of 2008 .. Appellant/Complainant Vs. Guna @ Gunasekaran .. Respondent/Accused Criminal appeal filed under Section 378 of Cr.P.C. against the Judgment dated 11.01.2010 passed in Sessions Case No.196 of 2008 by the Principal District and Sessions Court, Ramanathapuram. !For Appellant : Mr.K.S.Duraipandian Addl.Public Prosecutor ^For Respondent : Mr.P.Andiraj :JUDGMENT
(Judgment of the Court was delivered by A.SELVAM, J.) The Judgment of acquittal passed in Sessions Case No.196 of 2008 dated 11.01.2010 by the Principal District and Sessions Court, Ramanathapuram is being challenged in the present Criminal Appeal.
2. The consistent case of the prosecution is that in North street, Ramanathapuram both the accused and deceased Faritha @ Geetha have separately lived together. The mother of the accused and others have come to know the same and insisted the accused to abnegate the deceased. The accused has also asked the deceased to discontinue her relationship with him. But the demand made by the accused has been denied by the deceased. Due to refusal of the deceased, a despair has arisen betwixt them. Under the guise of going to a temple, on 16.04.2008 the accused has taken the deceased outside by using an auto. On the same day at about 09.30 pm, near Ettiseri Village, in the lands of Veerammal Ramalingam and in the midst of Karuvai trees, with an intention to murder the deceased, the accused has doused petrol on her person and set fire and she sustained burn injuries. After occurrence, the deceased has been taken to Government hospital, Muthukulathur, wherein Sub Inspector of Police, Peraiyur police station has recorded a statement from her and the same has been registered in Crime No.30 of 2008 under Sections 417 and 307 of the Indian Penal Code. The statement given by the deceased has been marked as Ex.P16.
3. On receipt of Ex.P16, PW16, Investigating Officer has taken up investigation and since the deceased has sustained 95% burn injuries and her condition is also critical, she has been referred to Government hospital, Ramanathapuram, where she succumbed to injuries on 20.04.2008 at about 02.40 am. The doctor by name Sadhik Ali (PW12) has conducted autopsy and post- mortem report has been marked as Ex.P15.
4. The Investigating Officer after finishing investigation has laid a final report on the file of the Judicial Magistrate Court, Kamuthi and the same has been taken on file in PRC No.26 of 2008.
5. The Judicial Magistrate, Kamuthi has come to the conclusion to the effect that the offence alleged to have been committed by the accused is triable by Sessions Court, has committed the case to the Court of Sessions and the same has been taken on file in Sessions Case No.196 of 2008.
6. The trial Court after hearing both sides and upon perusing relevant records has framed a charge against the accused under Section 302 of the Indian Penal Code and the same has been read over and explained to the accused. The accused has denied the charge and claimed to be tried.
7. On the side of the prosecution, PWs.1 to 16 have been examined and Exs.P1 to P22 and M.Os.1 to 9 have been marked.
8. When the accused has been questioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against him, he denied his complicity in the crime. No oral and documentary evidence have been let in on the side of the accused.
9. The trial Court after contemplating the available evidence on record has given a specific finding to the effect that the prosecution has failed to establish the alleged guilt of the accused punishable under Section 302 of the Indian Penal Code and ultimately acquitted him. Against the Judgment passed by the trial Court, the present Criminal Appeal has been filed by the Investigating Officer/Inspector of Police as appellant.
10. The nubble of the case of the prosecution is that both the accused and deceased by name Faritha @ Geetha have set up a separate family in North street, Ramanathapuram and the same has created babeldom in the family of the accused and due to that the accused has directed the deceased to abnegate him and since the deceased has failed to consider his demand, with an intention to murder her, under the guise of going to temple, has taken her out by using an auto on 16.04.2008 and at about 09.30 pm, near Ettiseri village, the accused has doused petrol on the body of the deceased and set fire and initially she has been admitted in Government hospital, Muthukulathur, and subsequently referred to Government hospital, Ramanathapuram where she succumbed to injuries.
11. The specific defence taken on the side of the accused is that PW1 by name Mumtajbanu @ Mallika is the sister of the deceased and her husband name is Thillainayagam and also having a name of Gunasekaran. Both the said Gunasekaran and deceased have had illicit intimacy with each other and their relationship has created quandary in the family of PW1 and due to that the said Gunasekaran has murdered the deceased.
12. The trial Court has assigned the following reasons for giving acquittal: (a) The prosecution has failed to establish the place of occurrence. (b) In the dying declaration it has been simply stated that the husband of the deceased has doused petrol and set fire. But the name of the accused has not been specifically stated. (c) The prosecution has not established the fact that the auto bearing Registration No.TN-65-F-1585 belongs to the accused. (d) The prosecution has failed to examine Gunasekaran, husband of PW1 and one Kannan.
13. Before analysing the rival submissions made on either side it has become shunless to narrate the circumstances under which the prosecution has set the law in motion and also evidentiary value of the statement alleged to have been given by the deceased.
14. It is seen from the evidence of PW7 Panchavarnam, PW8 Lakshmi and PW9 Bose that prior to six months, during night hours, a naked lady with burn injuries has knocked their doors for getting water and PW7 Panchavarnam has provided her a sari and petticoat and also given her gruel. Further PW7 would say that she has shown the way which leads to Muthukulathur.
15. It is seen from the records that after occurrence, the deceased has been admitted in Government hospital, Muthukulathur by PW4, where PW15, Sub Inspector of Police attached to Peraiyur Police Station has recorded a statement from the deceased and the same has been registered in Crime No.30 of 2008. The statement alleged to have been given by the deceased has been marked as Ex.P16.
16. In Ex.P16, it is stated that ?.prior to three years, he visited a house near Kumarayya koil as a guest and met Guna @ Gunasekaran S/o.Murugan and both of them have developed illicit relationship. The said Gunasekaran has already married one Manjula and both of them have blessed with two female children. After knowing marital condition of the said Guna @ Gunasekaran she changed her place for doing work. The said Guna @ Gunasekaran has driven an auto and again she renewed her relationship with him and prior to 1+ years, in Koorisatha Temple both of them have got married. After marriage he set up a separate family in North street, Ramanathapuram near the house of one Kesavan and subsequently both of them have lived in a house in Jeyapal compound and she has become pregnant and prior to two months, the said Guna @ Gunasekaran has purchased an auto and written a name Lakshmi on it. Prior to two months, he asked her to discontinue the relationship between him. On 16.04.2008 at about 04.00 pm, under the guise of going to a temple he has taken her out by using the said auto. After passing 4 kilometres in Peraiyur road, he has driven the auto in agricultural lands and stopped the same in the midst of karuvel trees and at about 09.30 pm, he asked her to cut off all relationship and she expressed her inability since she is having seven months pregnancy and suddenly he lugged her to an isolated place and asked her to sit. After some time, he doused petrol and set fire. After occurrence, he abruptly left her. She managed to quench fire and subsequently she has come to a house, where she got a sari, petticoat and also gruel and thereafter, a police constable has admitted her in Government hospital, Muthukulathur.
17. It is an admitted fact that Ex.P16 has been registered in Crime No.30 of 2008 under Sections 417 and 307 of the Indian Penal Code, on 17.04.2008 at about 02.00 am and the same has reached the Court on the same day.
18. At this juncture, a nice legal question arises as to whether Ex.P16 can be treated as a dying declaration as per Section 32(1) of the Indian Evidence Act, 1872. As stated earlier, the prosecution has set the law in motion only on the basis of Ex.P16 and after demise of the deceased Section of law has been altered into Section 302 of the Indian Penal Code.
19. In AIR1976SC2199(Munnu Raja and another V. The State of Madhya Pradesh) the Hon'ble Apex Court has held that ?.where after making the statement before the police, the victim succumbs to his injuries the statement can be treated as a dying declaration and is admissible under Section 32(1) of the Indian Evidence Act, 1872.
20. In Ex.P16, motive for occurrence, details of occurrence and also overtacts alleged to have been committed by the accused are clearly mentioned. Further it is seen from the evidence of PW12, doctor who conducted autopsy that the deceased has passed away due to burn injuries. Therefore, it is quite clear that death has occurred only due to burn injuries and since Ex.P16 is a statement given by the deceased, as per Section 32(1) of the Indian Evidence Act, 1872, Ex.P16 can very well be treated as a dying declaration and the same is admissible in evidence. Apart from Ex.P16, PW2, the Judicial Magistrate, Kamuthi has recorded a dying declaration from the deceased on 17.04.2008 in Government hospital, Ramanathapuram, and the same has been marked as Ex.P1, wherein it is stated that the husband of the deceased has doused petrol on her person and set fire.
21. The learned Additional Public Prosecutor has contended with great vehemence to the effect that in the instant case, the trial Court has erroneously rejected the dying declaration (Ex.P1) by way of assigning flimsy reasons. In fact, the prosecution has adduced replete/trustworthy evidence so as to point out guilt of the accused punishable under Section 302 of the Indian Penal Code and therefore, the Judgment passed by the trial Court is liable to be set aside and the accused is liable to be punished under Section 302 of the Indian Penal Code.
22. Per contra, the learned counsel appearing for the respondent/accused has contended that in the instant case, the prosecution has failed to establish the place of occurrence. In the dying declaration it has been simply stated that the husband of the deceased has doused petrol and set fire and no details have been given with regard to her husband and further the prosecution has failed to establish that the auto alleged to have been used for committing crime belongs to the accused and further the prosecution has not examined Gunasekaran husband of PW1 and one Kannan. The trial Court after considering the vital infirmities found in the case of the prosecution has clearly come to the conclusion to the effect that even though dying declaration is available, the same cannot be accepted and ultimately acquitted the accused and therefore, the Judgment passed by the trial Court is perfectly correct and the same does not require any interference.
23. The first and foremost contention put forth on the side of the accused is that the prosecution has failed to establish the place of occurrence.
24. On the side of the prosecution, Ex.P18, rough sketch has been filed, wherein it has been clearly stated that the occurrence has taken place in the midst of karuvel trees and the occurrence place situates in Survey No.146/4 and the same belongs to Veerammal Ramalingam. In Ex.P16, it has been clearly stated that after travelling 4 kilometers on peraiyur road, the accused has driven the auto in paddy fields and stopped the same near karuvel trees.
25. The trial Court has come to the conclusion that the prosecution has not establish the place of occurrence only on the basis of evidence given by PW5, doctor, attached to Government hospital, Ramanathapuram and her specific evidence is that the deceased has stated to the effect that on 16.04.2008 at about 09.30 pm, near Chithirangudi tank, the husband of the deceased has doused petrol and set fire on her and she filed Ex.P6.
26. It is not the case of the prosecution that the occurrence has taken place in Chithirangudi tank. In Ex.P16, it has been clearly stated that the occurrence has taken place in the midst of karuvel trees. The concerned Village Administrative Officer (PW11) in whose presence, observation mahazer and seizure mahazer have been prepared, clearly stated the occurrence place. Therefore, it is quite clear that the prosecution has not adduced two versions with regard to place of occurrence. Simply because in Ex.P6 it is stated near Chithirangudi tank that does not mean that the occurrence has taken place in Chithirangudi tank. Further as pointed out earlier, in Ex.P16, the place of occurrence has been clearly stated and that itself would be sufficient for coming to a conclusion that the suspicion arises in the mind of the trial Court with regard to place of occurrence is totally unwarranted.
27. The second contention put forth on the side of the accused is that in dying declaration it has been simply stated as husband and no details have been given and therefore, the prosecution has failed to establish the alleged guilt of the accused.
28. It is an admitted fact that PW1 is the sister of the deceased and her husband name is Thillainayagam @ Gunasekaran.
29. The defence put forth on the side of the accused is that the said Thillainayagam @ Gunasekaran has had illicit intimacy with the deceased and due to that quandary has come into existence in his family. Under the said circumstances, with an intention to murder the deceased he committed the crime.
30. It is an admitted fact that father name of the accused is Murugan. It is also equally an admitted fact that the accused has married a women by name Manjula. In Ex.P16, father name of the accused and his wife name have been clearly mentioned. If really the deceased has had no connection whatsoever with the accused, definitely she would not have stated the said particulars in Ex.P16. In the instant case, Ex.P16 is the first document and the same has properly reached the Court. Since Ex.P16 is the first document and properly reached the Court and since only after receipt of Ex.P16, the prosecution has set the law in motion, the Court can easily come to a conclusion that necessary particulars of the accused have been clearly mentioned in Ex.P16 and that itself is sufficient for coming to a conclusion that the accused has married the deceased as stated in Ex.P16.
31. It is true that the prosecution has not examined any independent witnesses so as to prove that prior occurrence both the accused and deceased have lived together in Ramanathapuram as stated in Ex.P16. Even in the absence of testimonies of independent witnesses, there is no incertitude in coming to a conclusion that necessary particulars of accused have been mentioned in Ex.P16.
32. The trial Court has not at all considered Ex.P16. It has simply looked into Ex.P1, dying declaration, wherein it is stated as ?.husband?.. Since the trial Court has failed to look into Ex.P16, where necessary particulars of the accused are found place, it is needless to say that the approach made by the trial Court with regard to the said aspect is totally erroneous. In fact, the prosecution has clearly established that only the accused has involved in the occurrence.
33. The third point put forth on the side of the accused is that the prosecution has failed to establish the fact that the auto involved in the case belongs to the accused.
34. It is seen from the records that during the course of investigation, PW16 Investigating Officer has seized an auto and the same has been marked as MO5.
35. The specific evidence of PW11, Village Administrative Officer is that in Paramakudi, Inspector of Police has seized an auto by name Lakshmi from the accused. At this juncture, it would be apropos to look into Ex.P16, wherein it has been clearly stated that the accused has purchased an auto and written her mother's name Lakshmi on it. It is true that no documentary evidence is available on the side of the prosecution for the purpose of showing that the said auto belongs to the accused. Since Ex.P16 is earlier in point of time and seizure mahazer is later in point of time, the Court can easily discern that the auto involved in this case belongs to the accused.
36. Even assuming without conceding that the prosecution has failed to establish the ownership of the said auto, that itself cannot be a ground for completely disbelieving the averments made in Ex.P16, since the same can be treated as a dying declaration as per Section 32(1) of the Indian Evidence Act, 1872. Therefore, the third contention put forth on the side of the accused is sans merit.
37. The fourth contention put forth on the side of the accused is that the prosecution has failed to examine husband of PW1 by name Gunasekaran and one Kannan who is said to have seen the accused near petrol tank.
38. It is a settled principle of law that the prosecution is having discretion to examine relevant witnesses. It is not the duty of prosecution to examine all persons who have been examined under Section 161(3) of the Code of Criminal Procedure, 1973. Further the persons mentioned supra are not at all eye witnesses. Under the said circumstances, their non examination would not militate case of the prosecution.
39. Apart from the points discussed supra, the trial Court has also made a comment to the effect that the Investigating Officer PW16 has failed to note down auto tyre marks near the place of occurrence.
40. The specific case of the prosecution is that the occurrence has taken place near paddy fields and that too in the midst of karuvel trees. Under the said circumstances it is not possible to see tyre marks of the auto.
41. It has already been pointed out that Ex.P16 can also be treated as a dying declaration, wherein all details of the accused; alleged relationship of the deceased and accused and also manner of occurrence have been clearly stated. Since Ex.P16 can also be treated as dying declaration, for proving its contents, corroborative evidence is not required. In fact, Ex.P16 is sufficient for believing the case of the prosecution.
42. After giving Ex.P16, the deceased has been referred to Government hospital, Ramanathapuramm. After three days she succumbed to injuries on 20.04.2008 at about 02.30 am. Before her demise, PW2 has recorded a dying declaration (Ex.P1) from the deceased wherein it has been simply stated as 'husband'. The trial Court has disbelieved the case of the prosecution simply on the basis that in Ex.P1 it has been stated only as 'husband' and no further details have been mentioned.
43. It has already been pointed out that in Ex.P16 all details of the accused have been clearly mentioned. Under the said circumstances, in Ex.P1 deceased would have stated to the effect that her husband doused petrol on her and subsequently set fire. Simply because in Ex.P1, it is mentioned as 'husband' the same does not mean, it refers to some other person, except the accused. As rightly pointed out on the side of the accused, no proof of marriage has been produced on the side of the prosecution and no evidence has been let in for the purpose of showing that both the accused and deceased have lived together in Ramanathapuram. Since in Ex.P16 it has been clearly stated to the effect that the accused has already married one Manjula and both of them have been blessed with two female children and since the alleged marriage in between him and deceased has taken place in a remote temple and that too illegally, no document would have come into existence. Further except evidence of PW1, no piece of evidence is available that prior to occurrence, both the accused and deceased have lived together in Ramanathapuram and that itself would not affect case of the prosecution, since in Ex.P16 it has been clearly stated to the effect that at the time of occurrence both of them have lived in North street, Ramanathapuram. Therefore, viewing from any angle, the reasons assigned by the trial Court for giving acquittal are totally against the available records and also evidentiary value of Ex.P16.
44. In the instant case, two dying declarations namely Ex.P16 and Ex.P1 are available. As pointed out earlier, in Ex.P16, details of accused are clearly mentioned, whereas in Ex.P1 it has been simply stated as 'husband'. Since both Exs.P16 and P1 are dying declarations, the Court can give much evidentiary value to Ex.P16.
45. At this juncture, it is pertinent to look into the decision reported in 1993 Supreme Court Cases (Cri) 655 (Kundula Bala Subramanyam and another Vs. State of Andhra Pradesh), wherein the Hon'ble Apex Court has observed as follows: Section 32(1) of the Evidence Act is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by cross-examination, it is not creditworthy. Under Section 32, when a statement is made by a person, as to the cause of death or as to any of the circumstances which result in his death, in cases in which the cause of that person?.s death comes into question, such a statement, oral or in writing, made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. A dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a reliable piece of evidence and if the court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations then the court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether the different dying declarations are consistent with each other in material particulars before accepting and relying upon the same.
46. It is an archaic principle of law that a dying declaration is having a special sanctity. The reason is that a dying person would not have uttered untrue or lie. In the instant case, as stated in many places, in Ex.P16, the alleged relationship in between the accused and deceased, details of occurrence, overtacts of the accused have been clearly mentioned. In Ex.P1 also it has been stated that the husband of the deceased has doused petrol on her and subsequently set fire. Therefore on the basis of Exs.P16 and P1, the Court can unflinchingly come to a conclusion that in the place of occurrence, the accused has doused petrol on the person of the deceased and subsequently set fire on her and only due to burn injuries, the deceased has passed away. The prosecution has clearly established guilt of the accused punishable under Section 302 of the Indian Penal Code.
47. The accused has been asked with regard to imposition of sentence under Section 302 of the Indian Penal Code.
48. The accused pleaded innocence.
49. In fine, this Criminal Appeal is allowed. The Judgment passed in Sessions Case No.196 of 2008 by the Principal District and Sessions Court, Ramanathapuram is set aside. The accused is found guilty under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and also imposed a fine of Rs.5,000/-. In default of payment of fine, he has to undergo six months rigorous imprisonment. The period if any already undergone by the accused is ordered to be deducted under Section 428 of the Code of Criminal Procedure. To 1.The Principal District and Sessions Court, Ramanathapuram 2.The Inspector of Police, Peraiyur Police Station, Ramanathapuram District 3.The Addl. Public Prosecutor, Madurai Bench of Madras High Court, Madurai.