(Prayer:Appeal is filed under Section 374 of the Code of Criminal Procedure against the Judgment and conviction dated 11.01.2012 made in S.C.No.78 of 2011, on the file of the learned Additional Sessions Judge [Fast Track Court No.III], Tirunelveli.)
S. Nagamuthu, J.
The appellant is the first accused in S.C.No.78 of 2011, on the file of the learned Additional Sessions Judge [Fast Track Court No.III], Tirunelveli. The second accused in the case was one Mr.S.Iyyappan, who is the son of the first accused. The Trial Court framed as many as two charges as detailed below.
| Charge | Accused | Penal Provisions |
| 1 | 1 | 302 IPC |
| 2 | 2 | 302 r/w 109 IPC |
| Convicted under Sections | Sentence imposed | Fine amount |
| 302 IPC | To undergo imprisonment for life | Rs.10,000/- in default to undergo rigorous imprisonment for six months. |
2. The case of the prosecution, in brief, is as follows:-
The deceased, in this case, was one Mrs.Kanagavalli. The second accused is her husband and the first accused is her mother-in-law. The second accused and the deceased were living together, whereas the first accused - the mother-in-law of the deceased, was living separately in a different house situated on the back side of the house of the second accused. There were frequent quarrels between the second accused and the deceased, on some petty matters. Apart from the above, no other motive is attributed to the second accused. While so, on 01.12.2009, at 07.30 PM, the second accused questioned the deceased as to why she had purchased a small amount of beedi dust, instead of purchasing more quantity. This resulted in a quarrel. The second accused attacked her with hands. He shouted at her that she was not fit for anything and therefore, she should be killed. Then, he directed the first accused to kill her by pouring kerosene and setting fire. So saying, the second accused went out of the house. Shortly, thereafter, the first accused came, poured kerosene on the body of the deceased and set fire to her. She sustained burn injuries. Then, both the accused absconded.
2.1. The neighbours of the deceased found her in flames and extinguished the fire. On intimation, PW-4 - Mr.S.Ramesh rushed to the place of occurrence. By arranging 108 ambulance, he took the deceased immediately to the hospital. PW-7 - Dr.N.Noyal Davidson examined the deceased at 08.30 PM, on 01.12.2009 at the Government Headquarters Hospital at Tenkasi. At that time, she was fully conscious. She told PW-7 that at her house, at 07.45 PM, her husband and her mother-in-law set fire to her. PW-7 admitted her as an inpatient in the Government Hospital. He gave intimation to the learned Judicial Magistrate as well as to the Court regarding the same.
2.2. On getting intimation, PW-17, the then Sub-Inspector of Police, Coutralam Police Station, went to the Government Hospital at Tenkasi at 09.00 PM, on 01.12.2009 and recorded the statement of the deceased. Since she was not in a position to sign, she had obtained the left thumb impression. PW-7 gave opinion that she was conscious and fit state of mind to make a statement. On returning to the Police Station, he registered a case in Crime No.599 of 2009 under Sections 498(A) and 307 of the Indian Penal Code. EX-P1 is the complaint and EX-P23 is the First Information Report. Then, he forwarded both the documents to the Court and handed over the investigation to the Inspector of Police.
2.3. Taking up the case for investigation, on 01.12.2009, at 11.30 PM, PW-18 proceeded to the place of occurrence, prepared an Observation Mahazer and a Rough Sketch, showing the place of occurrence in the presence of PW-6 and another witness. Then, he recovered an Yellow Colour Plastic Can under a mahazer. He also recovered a match box containing match sticks. At 01.00 AM, on 02.12.2009, the deceased died in the hospital. On getting intimation, PW-18 altered the case into one under Section 302 of the Indian Penal Code.
2.4. In the meanwhile, on getting intimation from the hospital, PW-15, the then learned Judicial Magistrate, Sengottai, went to the Government Hospital at Tenkasi at 09.50 PM, on 01.12.2009. PW-7, Dr.N.Nobel Davidson, after examining the deceased, gave a certificate that the deceased was conscious and in a fit state of mind to make a dying declaration. Then, PW-15 recorded the dying declaration of the deceased, in which the deceased told that her mother-in-law poured kerosene and set fire to her.
2.5. On 02.12.2009, PW-18 gave a request to the Revenue Divisional Officer to hold inquest. Accordingly, PW-16, the Revenue Divisional Officer, Tenkasi, conducted inquest on the body of the deceased, on 02.12.2009, at 09.15 AM. He submitted a report under EX-P20. He concluded that there was no dowry demand. PW-18, then, handed over the case diary to the Deputy Superintendent of Police for further investigation.
2.6. PW-20 took up the case for further investigation. He held investigation for few days and since he came to know during investigation that it was not dowry death, he again transferred the investigation to the Inspector of Police, Koutralam Police Station.
2.7.In the meanwhile, PW-8 - Dr.I.Paul Robinson, conducted autopsy on the body of the deceased, at 12.30 PM, on 02.12.2009. He found extensive burn injuries all over the body of the deceased. He gave opinion that the deceased would appear to have died of shock due to 100% burns.
2.8. PW-21 further took up the case for investigation, examined the doctor and collected the medical records. He arrested the accused on 03.12.2009 and forwarded him to the Court for judicial remand. On 14.12.2009, he took police custody of the second accused and interrogated him. On completing the investigation, he laid charge sheet against both the accused, on 15.10.2010.
2.9. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused were questioned in respect of the charges, they pleaded innocence. In order to prove the charges, on the side of the prosecution, 21 witnesses were examined, 25 documents and five material objects were marked.
2.10. Out of the said 21 witnesses, PW-1 and PW-2 are the parents of the deceased, who have stated about the frequent quarrels between the second accused and the deceased. PW-3 to PW-5 are closely related to the deceased and they have spoken about the frequent quarrels between the second accused and the deceased. PW-5, who was examined to speak about the occurrence as an eye-witness, has turned hostile and he has not supported the case of the prosecution in any manner. PW-6 has spoken about the preparation of the observation mahazer and the rough sketch and the recovery of the material objects from the place of occurrence.
2.11. PW-7 has spoken about the examination of the deceased done by him at the Government Hospital, Tenkasi. He has stated to the Sub-Inspector of Police that the deceased was in a fit state of mind to make a statement. He has also stated to the learned Judicial Magistrate that the deceased was in a fit statement of mind to make dying declaration. PW-8 has spoken about the autopsy conducted by him and his final opinion regarding the cause of death. According to him, there was 100% of injuries and the death was due to the burn injuries. PW-9 has stated that she conducted chemical analysis of the visceral organs of the deceased. She has further stated that there was no poison detected.
2.12.PW-10 has stated that he examined the material objects and found that there were traces of kerosene in the Can recovered from the place of occurrence. PW-11 is the Head Clerk of the Court, who has spoken about the forwarding of the material objects to the Forensic Lab for examination. PW-12, the then Sub-Inspector of Police, has spoken about the earlier complaint made by the deceased against the accused in respect of the harassment. PW-13 has stated about the fact that he carried the express First Information Report from the Police Station to the Court of Judicial Magistrate and handed over the same, at 08.00 AM, on 02.12.2009. PW-14 has spoken about the fact that he carried the dead body to the hospital for postmortem. PW-15, the then learned Judicial Magistrate, has spoken about the recording of the dying declaration of the deceased. PW-16, the Revenue Divisional Officer, has spoken about the inquest conducted by him and his final opinion. PW-17 has spoken about the recording of the statement of the deceased and the registration of the First Information Report by her. PW-18 to PW-21 have spoken about the investigation done by them and the filing of the final report.
2.13. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against them, they denied the same as false. On their side, they marked a document, viz., the information furnished by the Inspector of Police, under the Right To Information Act, 2005. Having considered all the above materials, the Trial Court has acquitted the second accused, but convicted the first accused, as detailed in the first paragraph of this Judgment and punished her accordingly. That is how, the appellant is now before this Court with this Criminal Appeal.
3. We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.
4.In this case, the prosecution mainly relies on only the dying declarations made by the deceased on three occasions. The earliest dying declaration was the one given by the deceased by way of a statement to PW-7, Dr.N.Noyal Davidson, at the Government Hospital, Tenkasi. The second one was the statement made to PW-17 by the deceased, which is EX-P1, upon which the case was registered. The third one was the judicial dying declaration recorded by PW-15. The learned counsel appearing for the appellant would submit that there are material contradictions in all the three dying declarations and therefore, the conviction and sentence imposed on the appellant by the Trial Court is to be set aside.
5. But, the learned Additional Public Prosecutor would submit that these contradictions are immaterial and so, they are to be ignored.
6. We have considered the above submissions.
7.In the earliest dying declaration given by the deceased to the doctor, which has been duly entered in the Accident Register, the deceased had told that her husband and her mother-in-law jointly poured kerosene and set fire to her. In the second dying declaration given to the Sub-Inspector of Police, under EX-P1, she has stated that at the time of occurrence, the accused Nos.1 and 2 were present, the second accused attacked her physically, then he shouted at the deceased that she was not fit for anything and then, directed the first accused to pour kerosene and set fire. Immediately, thereafter, according to this dying declaration, the first accused poured kerosene and set fire to her. In the second dying declaration also, the presence of both the accused together has been mentioned, but in a different manner. The third one is the judicial dying declaration recorded by the learned Judicial Magistrate, where she has stated that her husband initially attacked her and went away. After sometime, the first accused came, poured kerosene and set fire to her. This dying declaration is not in tune with the other two dying declarations. Each one dying declaration makes a narration in its own way, which contradicts the other dying declarations.
8. In a case, where there are multiple dying declarations, the Court may accept a dying declaration, which inspires the confidence of the Court while rejecting the others. But, for doing so, the Court should have sound reasons. But, in this case, we do not find any reason to accept any one dying declarations and to reject the others. Since each one dying declaration, by means of material contradictions, destroys the other dying declarations, we find it very difficult to act upon any dying declaration. If once three dying declarations are rejected, absolutely, there is no other evidence available against the accused.
9. Yet another fact, which also needs to be mentioned, is that during inquest, the Revenue Divisional Officer has stated that the parents of the deceased told him that the deceased had poured kerosene to herself and set her ablaze. This appears to be the earliest version of the parents of the deceased. They have been duly contradicted these statements respectively. We do not find any reason to reject this earliest version of the parents, viz., PW-1 and PW-2 made to the Revenue Divisional Officer. The Investigating Officer has also admitted that such kind of statement was made by PW-1 and PW-2. PW-1 and PW-2 have been contradicted with these statements. This would give an inference that the deceased would have self-immolated herself, but due to tutoring, she had made some kind of statement against the accused subsequently. The Trial Court has disbelieved this dying declaration insofar as the second accused is concerned and acquitted him. The same yardstick should have been applied to the case of the first accused also. Thus, we are of the considered view that the prosecution has failed to prove the case beyond reasonable doubts and therefore, the appellant is entitled for acquittal.
10. In the result, this Criminal Appeal is allowed; the conviction and sentence imposed on the appellant, by Judgment dated 11.01.2012, made in S.C.No.78 of 2011, on the file of the learned Additional Sessions Judge [Fast Track Court No.III], Tirunelveli, is set aside and the appellant is acquitted. Fine amount, if any, paid by the appellant shall be refunded to her. Bail bond executed by the appellant and the sureties shall stand terminated.