K. Rajendran Vs. State represented by, The Inspector of Police, Kanyakumari District - Court Judgment

SooperKanoon Citationsooperkanoon.com/1178817
CourtChennai Madurai High Court
Decided OnOct-16-2015
Case NumberCriminal Appeal (MD).No. 162 of 2012
JudgeS. Nagamuthu &Amp; V.S. Ravi
AppellantK. Rajendran
RespondentState represented by, The Inspector of Police, Kanyakumari District
Excerpt:
(prayer: appeal is filed under section 374(2) of the code of criminal procedure against the judgment passed by the sessions judge, kanyakumari division at nagercoil, in s.c.no.131 of 2007 dated 18.08.2011.) s. nagamuthu, j. 1. the appellant is the sole accused in s.c.no.131 of 2007 on the file of the learned sessions judge, kanyakumari division at nagercoil. he stood charged for offence under section 302 ipc. by judgment dated 18.08.2011, the trial court convicted him under section 302 ipc and sentenced him to undergo imprisonment for life and to pay a fine of rs.5,000/-, in default, to undergo simple imprisonment for six months. challenging the same, the appellant is before this court with this appeal. 2. the case of the prosecution in brief is as follows: the deceased in this case was one thangam @ thangamari. she was already married to one mr.gopal. through him, she had two children. after the birth of the children, she got herself separated from mr.gopal and started living with the accused as his wife. through him, she has got another child. the deceased and the accused were residing at thiruvithangudi village in kanyakumari district. on an earlier occasion, there was an incident, involving the accused and the sister of the deceased. on a complaint made by her sister, a criminal case was registered against the accused, which resulted in a charge sheet, and the accused was facing the prosecution. the criminal case was to come up for hearing on 26.04.2007. the accused wanted the deceased to persuade her sister to withdraw the said complaint. but the deceased was not willing to do so. she told the accused that if he wanted, he could go and approach her sister and persuade her and she would not go and persuade her. 2.1. while so, on 16.04.2007, the accused and the deceased were in their house. p.w.1 is the sister and p.w.2 is the father of the deceased. about 9 p.m., on 16.04.2007, the accused again wanted the deceased to go and persuade her sister to withdraw the criminal case. since she refused, there was a quarrel between them. this quarrel went on for a long time. at one stage, it is stated that p.w.2 and his wife had also come to the house. they tried to persuade them. but, even after that, the quarrel went on. it is alleged that suddenly the accused closed the doors of the house, took up kerosene from a can poured it on her and set fire. the deceased ran out of the house in flames. the accused fled away from the scene of occurrence. then p.w.1 took the deceased to the government hospital, thuckalay. after first aid treatment, she was referred to the government medical college hospital, asaripallam, where she was admitted as inpatient. due intimation was given by the hospital authorities to the police as well as to the magistrate regarding the same. 2.2. on receiving the said intimation, p.w.7 the sub inspector of police at thotrikodu police station rushed to the hospital. between 1.45 am and 2.30 a.m., on 17.04.2007, p.w.7 recorded the statement of the deceased. the deceased was not in a position to sign and therefore, he obtained her thumb impression. ex.p1 is the said statement of the deceased. on returning to the police station, he registered a case in crime no.266 of 2007 under section 307 ipc. ex.p9 is the fir. he forwarded both the documents to court and handed over the investigation to the inspector of police. 2.3. on getting intimation from the hospital, p.w.12, the learned magistrate no.i, nagercoil, went to the hospital. at that time, the deceased was conscious. p.w.8 - dr.selvam was attending on the deceased. the doctor, after examining the deceased, gave opinion that the deceased was in a fit state of mind to make a dying declaration. p.w.12 asked number of questions to satisfy himself about the mental fitness of the deceased. as he was satisfied from the answers given by the deceased and from the opinion of the doctor that the deceased was in a fit state of mind to make a dying declaration, he recorded the dying declaration of the deceased at 4.55 a.m. on 17.04.2007. ex.p14 is the said judicial dying declaration. 2.4. p.w.13 took up the case for investigation on 17.04.2007 at 6.00 a.m. he proceeded to the place of occurrence, prepared an observation mahazar and a rough sketch in the presence of p.ws.4 and 5. he recovered the bloodstained material objects from the place of occurrence, such as burnt materials, the match sticks and a half burnt hair, a plastic kerosene can, a gunny bag used for extinguishing the fire. then, he examined p.w.1 and other witnesses. then, he went to the hospital, recorded the statement of the deceased under ex.p20. the deceased died on 27.04.2007. then, he conducted inquest on the body of the deceased and forwarded the same for postmortem. 2.5. p.w.9 “ dr.rajesh conducted autopsy on the body of the deceased on 27.04.2007 at 11.55 a.m. he found the following injuries. the following ante mortem injuries noted: infected epidermo dermal burns seen all over the body except scalp, both gluteal region, lower half of front of both thighs, front and back of both legs and soles of feet. the burns is deep at some places. partial singing of scalp hair, eyebrows, eyelashes and axillary hair noted. base of the burns area is covered with infected pus material. peeling of the skin noted all over the burnt area. nil genital injuries. ex.p11 is the postmortem certificate. according to him, the deceased would appear to have died of burns and its complications. 2.6. the accused was arrested by p.w.13 on 17.04.2007 at 6.30 p.m. on such arrest, he made a voluntary confession, in which, he disclosed the place, where he had hidden a shirt. the same was, accordingly, recovered. on completing the investigation, p.w.13 laid charge sheet against the accused. 2.7. based on the above materials, the trial court framed a lone charge under section 302 ipc, which he denied. in order to prove the case, on the side of the prosecution, as many as 13 witnesses were examined, 23 documents and 9 material objects were marked. 2.8. out of the said witnesses, p.w.1 is the sister of the deceased, who have stated about the motive and she has also stated that she only took the deceased to the hospital. p.w.2 the father of the deceased has turned hostile and he has not supported the case of the prosecution in any manner. p.w.3 has also turned hostile and he has not supported the case of the prosecution in any manner. p.w.4 has spoken about the observation mahazar, the rough sketch and the recovery of material objects from the place of occurrence. p.w.5 has turned hostile and he has not supported the case of the prosecution in any manner. p.w.6 is the head clerk of the court, who forwarded the material objects for chemical examination. according to the report, there were traces of kerosene in the material objects. p.w.7 is the sub inspector of police, who recorded ex.p1 at the hospital. p.w.8 is the doctor, who has stated that he certified about the mental fitness of the deceased, when the magistrate recorded the dying declaration. p.w.9 has spoken about the autopsy conducted and his final opinion regarding the cause of death. p.w.11 has spoken about the photographs taken at the place of occurrence. p.w.12 is the magistrate, who recorded the dying declaration. he has stated that the deceased was in a fit state of mind and only after having satisfied with the same, he recorded the dying declaration. p.w.13 has spoken about the investigation done and the final report filed. 2.9. when the incriminating materials were put to the accused under section 313 cr.p.c., he denied the same as false. however, he did not choose to examine any witnesses nor to mark any documents. having considered all the above, the trial court convicted him under section 302 ipc and that is how, he is before this court with this appeal. 3. we have heard the learned senior counsel for the appellant, the learned additional public prosecutor for the respondent and we have also perused the records carefully. 4. this is a case based on circumstantial evidence. there is no eye witness account. the prosecution relies on the motive and the three dying declarations recorded at three points of time by three different officers. so far as the motive is concerned, in our considered view, it cannot be stated that there was any strong motive between the accused and the deceased. the deceased and the accused were living under a common roof as husband and wife and they had also begotten a child. there was no other quarrel between them, except the quarrel, which arose out of the request made by the accused to the deceased to persuade her sister to withdraw the criminal case against him. at the time of occurrence also, the accused only requested the deceased to persuade her sister to withdraw the criminal case. since she refused to do so, there was a quarrel. this cannot be stated to be the motive. thus, we hold that there was no motive at all on the part of the accused to commit murder of the deceased. 5. now, turning to ex.p1 the earliest dying declaration that was recorded by p.w.7, p.w.1, during the cross examination, has stated that the said statement was spoken only by her and the same was reduced to writing by p.w.7. she has further stated that during cross examination that at the time when ex.p1 was recorded, the deceased was not in a position even to speak, as she was struggling with pain. she has further stated that as dictated by her, ex.p1 was drafted by p.w.7, in which, the thumb impression of the deceased was obtained. as rightly pointed out by the learned senior counsel, this statement cannot be believed for any purpose, as according to the evidence of p.w.1, it is not the statement of the deceased, but the statement of p.w.1. therefore, we reject the same. 6. the next one is the judicial dying declaration recorded by p.w.12. so far as this document is concerned, it carries sanctity. p.w.12 has stated that when the doctor p.w.8, who was on duty, after examining the deceased, certified that she was conscious and she was in a fit state of mind to make a dying declaration. p.w.12 had also asked number of questions and from the answers spoken by the deceased, he was fully satisfied that the deceased was in a fit state of mind to make a dying declaration. thereafter only, he has recorded the dying declaration. we do not find any infirmity at all in the said judicial dying declaration. but the learned senior counsel would submit that by the time the judicial dying declaration was recorded, there were number of relatives of the deceased surrounding her and therefore, the said dying declaration was as a result of tutoring by the relatives of the deceased. though attractive, we do not find any reason to accept the said contention of the learned senior counsel. it is true that the deceased was taken by p.w.1 and p.w.2 to the hospital and there would have been some relatives in the hospital, who had come to see her. simply because there were relatives by the side of her, it cannot be said that there would have been tutoring. apart from the presence of relatives, there is nothing elicited from any other witness to even suggest that there would have been tutoring by the relatives. therefore, we hold that the judicial dying declaration is believable and based upon which the accused may be convicted. 7. apart from the said dying declaration, ex.p20, the statement recorded from the deceased by the inspector of police also is yet another dying declaration. of course, as per law, since the signature of the deponent cannot be obtained, p.w.13 had not obtained the signature of the deceased. on that score, we cannot reject this statement also. though this statement, which is unsigned, cannot be the sole foundation for conviction, this can be used to corroborate the judicial dying declaration. we do not find any contradictions between these two dying declarations. 8. the learned senior counsel would submit that the accident register at the government hospital, thuckalay and the accident register made at the government hospital at asaripallam have not been produced. it is certainly a flaw in the case of the prosecution, but on that score, the judicial dying declaration, which carries sanctity cannot be doubted and rejected. therefore, from the judicial dying declaration, which is corroborated by ex.p20, we hold that the injuries on the deceased were caused only by the accused by setting fire. 9. now, the question is by the said act, what is the offence that the accused had committed. it is in the dying declaration both in the judicial dying declaration and in ex.p20 that the accused wanted the deceased to go and persuade her sister to withdraw the criminal case. this resulted in a quarrel. this quarrel was going on from 9.00 p.m. onwards. at one stage, the accused had also beaten her. even thereafter the deceased continued to refuse to go and persuade her sister. it was only at that stage, the accused poured kerosene and set fire. in our considered view, in the said quarrel, certainly by the act and the words uttered by the deceased, the accused would have provoked. it was only at the end of this quarrel provoked by the act of the deceased, the accused would have lost his self control. thus, the act of the appellant would clearly fall within the first exception to section 300 ipc. though his act would fall under the third limb of section 300 ipc, since, it falls under first exception to section 300 ipc, he is liable to be punished only under section 304(i) ipc. 10. now, turning to the quantum of sentence, the appellant is aged 40 years. he has to take care of the children. he has got no bad antecedents. even after the occurrence also, he had not committed any crime. he is a poor man. having regard to these aggravating and mitigating circumstances, we are of the view that sentencing him to undergo rigorous imprisonment for seven years and to pay a fine of rs.5,000/- would meet the ends of justice. 11. in the result, the criminal appeal is partly allowed in the following terms: (i) the conviction and sentence imposed on the appellant by the trial court under section 302 ipc are set aside and instead, he is convicted under section 304(i) ipc and he is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of rs.5,000/-, (rupees five thousand only) in default, to undergo rigorous imprisonment for four weeks. (ii) the trial court shall take steps to secure the accused to commit him in prison to serve out the remaining period of sentence. (iii) it is directed that the period of sentence already undergone by the accused is ordered to be set off under section 428 cr.p.c.
Judgment:

(Prayer: Appeal is filed under Section 374(2) of the Code of Criminal Procedure against the judgment passed by the Sessions Judge, Kanyakumari Division at Nagercoil, in S.C.No.131 of 2007 dated 18.08.2011.)

S. Nagamuthu, J.

1. The appellant is the sole accused in S.C.No.131 of 2007 on the file of the learned Sessions Judge, Kanyakumari Division at Nagercoil. He stood charged for offence under Section 302 IPC. By judgment dated 18.08.2011, the trial Court convicted him under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for six months. Challenging the same, the appellant is before this Court with this appeal.

2. The case of the prosecution in brief is as follows:

The deceased in this case was one Thangam @ Thangamari. She was already married to one Mr.Gopal. Through him, she had two children. After the birth of the children, she got herself separated from Mr.Gopal and started living with the accused as his wife. Through him, she has got another child. The deceased and the accused were residing at Thiruvithangudi Village in Kanyakumari District. On an earlier occasion, there was an incident, involving the accused and the sister of the deceased. On a complaint made by her sister, a criminal case was registered against the accused, which resulted in a charge sheet, and the accused was facing the prosecution. The criminal case was to come up for hearing on 26.04.2007. The accused wanted the deceased to persuade her sister to withdraw the said complaint. But the deceased was not willing to do so. She told the accused that if he wanted, he could go and approach her sister and persuade her and she would not go and persuade her.

2.1. While so, on 16.04.2007, the accused and the deceased were in their house. P.W.1 is the sister and P.W.2 is the father of the deceased. About 9 p.m., on 16.04.2007, the accused again wanted the deceased to go and persuade her sister to withdraw the criminal case. Since she refused, there was a quarrel between them. This quarrel went on for a long time. At one stage, it is stated that P.W.2 and his wife had also come to the house. They tried to persuade them. But, even after that, the quarrel went on. It is alleged that suddenly the accused closed the doors of the house, took up kerosene from a can poured it on her and set fire. The deceased ran out of the house in flames. The accused fled away from the scene of occurrence. Then P.W.1 took the deceased to the Government Hospital, Thuckalay. After first aid treatment, she was referred to the Government Medical College Hospital, Asaripallam, where she was admitted as inpatient. Due intimation was given by the hospital authorities to the police as well as to the Magistrate regarding the same.

2.2. On receiving the said intimation, P.W.7 the Sub Inspector of Police at Thotrikodu Police Station rushed to the hospital. Between 1.45 am and 2.30 a.m., on 17.04.2007, P.W.7 recorded the statement of the deceased. The deceased was not in a position to sign and therefore, he obtained her thumb impression. Ex.P1 is the said statement of the deceased. On returning to the police station, he registered a case in Crime No.266 of 2007 under Section 307 IPC. Ex.P9 is the FIR. He forwarded both the documents to Court and handed over the investigation to the Inspector of Police.

2.3. On getting intimation from the hospital, P.W.12, the learned Magistrate No.I, Nagercoil, went to the hospital. At that time, the deceased was conscious. P.W.8 - Dr.Selvam was attending on the deceased. The Doctor, after examining the deceased, gave opinion that the deceased was in a fit state of mind to make a dying declaration. P.W.12 asked number of questions to satisfy himself about the mental fitness of the deceased. As he was satisfied from the answers given by the deceased and from the opinion of the Doctor that the deceased was in a fit state of mind to make a dying declaration, he recorded the dying declaration of the deceased at 4.55 a.m. on 17.04.2007. Ex.P14 is the said judicial dying declaration.

2.4. P.W.13 took up the case for investigation on 17.04.2007 at 6.00 a.m. He proceeded to the place of occurrence, prepared an observation mahazar and a rough sketch in the presence of P.Ws.4 and 5. He recovered the bloodstained material objects from the place of occurrence, such as burnt materials, the match sticks and a half burnt hair, a plastic kerosene can, a gunny bag used for extinguishing the fire. Then, he examined P.W.1 and other witnesses. Then, he went to the hospital, recorded the statement of the deceased under Ex.P20. The deceased died on 27.04.2007. Then, he conducted inquest on the body of the deceased and forwarded the same for postmortem.

2.5. P.W.9 “ Dr.Rajesh conducted autopsy on the body of the deceased on 27.04.2007 at 11.55 a.m. He found the following injuries.

The following ante mortem injuries noted:

Infected epidermo dermal burns seen all over the body except scalp, both gluteal region, lower half of front of both thighs, front and back of both legs and soles of feet. The burns is deep at some places. Partial singing of scalp hair, eyebrows, eyelashes and axillary hair noted. Base of the burns area is covered with infected pus material. Peeling of the skin noted all over the burnt area. Nil genital injuries.

Ex.P11 is the postmortem certificate. According to him, the deceased would appear to have died of burns and its complications.

2.6. The accused was arrested by P.W.13 on 17.04.2007 at 6.30 p.m. On such arrest, he made a voluntary confession, in which, he disclosed the place, where he had hidden a shirt. The same was, accordingly, recovered. On completing the investigation, P.W.13 laid charge sheet against the accused.

2.7. Based on the above materials, the trial Court framed a lone charge under Section 302 IPC, which he denied. In order to prove the case, on the side of the prosecution, as many as 13 witnesses were examined, 23 documents and 9 material objects were marked.

2.8. Out of the said witnesses, P.W.1 is the sister of the deceased, who have stated about the motive and she has also stated that she only took the deceased to the hospital. P.W.2 the father of the deceased has turned hostile and he has not supported the case of the prosecution in any manner. P.W.3 has also turned hostile and he has not supported the case of the prosecution in any manner. P.W.4 has spoken about the observation mahazar, the rough sketch and the recovery of material objects from the place of occurrence. P.W.5 has turned hostile and he has not supported the case of the prosecution in any manner. P.W.6 is the Head Clerk of the Court, who forwarded the material objects for chemical examination. According to the report, there were traces of kerosene in the material objects. P.W.7 is the Sub Inspector of Police, who recorded Ex.P1 at the hospital. P.W.8 is the Doctor, who has stated that he certified about the mental fitness of the deceased, when the Magistrate recorded the dying declaration. P.W.9 has spoken about the autopsy conducted and his final opinion regarding the cause of death. P.W.11 has spoken about the photographs taken at the place of occurrence. P.W.12 is the Magistrate, who recorded the dying declaration. He has stated that the deceased was in a fit state of mind and only after having satisfied with the same, he recorded the dying declaration. P.W.13 has spoken about the investigation done and the final report filed.

2.9. When the incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witnesses nor to mark any documents. Having considered all the above, the trial Court convicted him under Section 302 IPC and that is how, he is before this Court with this appeal.

3. We have heard the learned senior counsel for the appellant, the learned Additional Public Prosecutor for the respondent and we have also perused the records carefully.

4. This is a case based on circumstantial evidence. There is no eye witness account. The prosecution relies on the motive and the three dying declarations recorded at three points of time by three different officers. So far as the motive is concerned, in our considered view, it cannot be stated that there was any strong motive between the accused and the deceased. The deceased and the accused were living under a common roof as husband and wife and they had also begotten a child. There was no other quarrel between them, except the quarrel, which arose out of the request made by the accused to the deceased to persuade her sister to withdraw the criminal case against him. At the time of occurrence also, the accused only requested the deceased to persuade her sister to withdraw the criminal case. Since she refused to do so, there was a quarrel. This cannot be stated to be the motive. Thus, we hold that there was no motive at all on the part of the accused to commit murder of the deceased.

5. Now, turning to Ex.P1 the earliest dying declaration that was recorded by P.W.7, P.W.1, during the cross examination, has stated that the said statement was spoken only by her and the same was reduced to writing by P.W.7. She has further stated that during cross examination that at the time when Ex.P1 was recorded, the deceased was not in a position even to speak, as she was struggling with pain. She has further stated that as dictated by her, Ex.P1 was drafted by P.W.7, in which, the thumb impression of the deceased was obtained. As rightly pointed out by the learned senior counsel, this statement cannot be believed for any purpose, as according to the evidence of P.W.1, it is not the statement of the deceased, but the statement of P.W.1. Therefore, we reject the same.

6. The next one is the judicial dying declaration recorded by P.W.12. So far as this document is concerned, it carries sanctity. P.W.12 has stated that when the Doctor P.W.8, who was on duty, after examining the deceased, certified that she was conscious and she was in a fit state of mind to make a dying declaration. P.W.12 had also asked number of questions and from the answers spoken by the deceased, he was fully satisfied that the deceased was in a fit state of mind to make a dying declaration. Thereafter only, he has recorded the dying declaration. We do not find any infirmity at all in the said judicial dying declaration. But the learned senior counsel would submit that by the time the judicial dying declaration was recorded, there were number of relatives of the deceased surrounding her and therefore, the said dying declaration was as a result of tutoring by the relatives of the deceased. Though attractive, we do not find any reason to accept the said contention of the learned senior counsel. It is true that the deceased was taken by P.W.1 and P.W.2 to the hospital and there would have been some relatives in the hospital, who had come to see her. Simply because there were relatives by the side of her, it cannot be said that there would have been tutoring. Apart from the presence of relatives, there is nothing elicited from any other witness to even suggest that there would have been tutoring by the relatives. Therefore, we hold that the judicial dying declaration is believable and based upon which the accused may be convicted.

7. Apart from the said dying declaration, Ex.P20, the statement recorded from the deceased by the Inspector of Police also is yet another dying declaration. Of course, as per law, since the signature of the deponent cannot be obtained, P.W.13 had not obtained the signature of the deceased. On that score, we cannot reject this statement also. Though this statement, which is unsigned, cannot be the sole foundation for conviction, this can be used to corroborate the judicial dying declaration. We do not find any contradictions between these two dying declarations.

8. The learned senior counsel would submit that the accident register at the Government Hospital, Thuckalay and the Accident Register made at the Government Hospital at Asaripallam have not been produced. It is certainly a flaw in the case of the prosecution, but on that score, the judicial dying declaration, which carries sanctity cannot be doubted and rejected. Therefore, from the judicial dying declaration, which is corroborated by Ex.P20, we hold that the injuries on the deceased were caused only by the accused by setting fire.

9. Now, the question is by the said act, what is the offence that the accused had committed. It is in the dying declaration both in the judicial dying declaration and in Ex.P20 that the accused wanted the deceased to go and persuade her sister to withdraw the criminal case. This resulted in a quarrel. This quarrel was going on from 9.00 p.m. onwards. At one stage, the accused had also beaten her. Even thereafter the deceased continued to refuse to go and persuade her sister. It was only at that stage, the accused poured kerosene and set fire. In our considered view, in the said quarrel, certainly by the act and the words uttered by the deceased, the accused would have provoked. It was only at the end of this quarrel provoked by the act of the deceased, the accused would have lost his self control. Thus, the act of the appellant would clearly fall within the first exception to Section 300 IPC. Though his act would fall under the third limb of Section 300 IPC, since, it falls under first exception to Section 300 IPC, he is liable to be punished only under Section 304(i) IPC.

10. Now, turning to the quantum of sentence, the appellant is aged 40 years. He has to take care of the children. He has got no bad antecedents. Even after the occurrence also, he had not committed any crime. He is a poor man. Having regard to these aggravating and mitigating circumstances, we are of the view that sentencing him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- would meet the ends of justice.

11. In the result, the criminal appeal is partly allowed in the following terms:

(i) The conviction and sentence imposed on the appellant by the trial Court under Section 302 IPC are set aside and instead, he is convicted under Section 304(i) IPC and he is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, (Rupees five thousand only) in default, to undergo rigorous imprisonment for four weeks.

(ii) The trial Court shall take steps to secure the accused to commit him in prison to serve out the remaining period of sentence.

(iii) It is directed that the period of sentence already undergone by the accused is ordered to be set off under Section 428 Cr.P.C.