Antony vs The State

M. Chockalingam, J.—This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No. 1 Thoothukudi, dated

02.12.2008, made in S.C. No. 87 of 2007, whereby the appellant/sole accused, who stood charged u/s 302 IPC, on trial, was found guilty under

the charge of murder, convicted thereunder and sentenced to undergo life imprisonment and also to pay fine of Rs. 1000/-, in default to undergo

six months rigorous imprisonment.

Short facts necessary for the disposal of the appeal can be stated as follows:

(a) The deceased in this case by name Geetha was given in marriage to one Bishmark and they got three children and due to some strained

relationship, she was living with her children separately. During that course, she developed illicit intimacy with the appellant/accused and was living

with him.

(b)On 04.09.2002, when P.Ws.1 and 2 were sleeping inside the house, at about 3.30 a.m. the deceased and the appellant/accused were sitting

outside and chatting with each other and at that time there arose a quarrel between them and the deceased raised a distressing cry stating ""leave

me, don''t do anything"" and on hearing the same, P.Ws.1 and 2 woke up, opened the window and found that the appellant/accused pouring

kerosene on the deceased and setting her ablaze. Immediately, P.Ws.1 and 2 raised alarm. P.W.5 found the accused/appellant running from the

place of occurrence. P.W.3, a neighbour, on hearing the cry, came there and opened the doors and P.Ws.1 and 2 came out. The victim narrated

to them that it was the appellant/accused who poured kerosene on her and set her ablaze. Immediately she was taken to the Hospital.

(c) P.W.7, the doctor attached to the Government Hospital, Thoothukudi, admitted the victim at 3.50 a.m. on 04.09.2002 and gave treatment to

her and the Accident Register Copy given by him is marked as Ex.P-4. Ex.P-5 is the intimation given to the police and Ex.P-6 is the intimation

given to the Magistrate for recording the dying declaration of the victim.

(d) P.W.15, the Judicial Magistrate No. I, Thoothukudi, on receipt of intimation, came to the hospital and after getting certificate from P.W.8, the

duty doctor, that she was in a fit state of mind to give declaration, recorded the dying declaration. The said certificate is marked as Ex.P-7 and the

Dying Declaration is marked as Ex.P-17.

(e) On receipt of intimation from the Hospital at about 4.15 a.m. on 04.09.2002, P.W.11, the Head Constable attached to the respondent Police

Station, proceeded to the Hospital and recorded the statement of the victim at 5.30 a.m., which is marked as Ex.P-1, and on the strength of which

a case came to be registered in Crime No. 668/2002 u/s 307 IPC and Ex.P-9, the First Information Report, was despatched to the court and

copies of Ex.P-9 were sent to the higher police officers for further action.

(f) P.W.16, the Inspector of Police, on receipt of a copy of Ex.P-9 FIR at 6.45 a.m. on 04.09.2002, took up the investigation, proceeded to the

place of occurrence, made an observation in the presence of P.W.6 and another and prepared Ex.P-2, the observation mahazar. He also drew

Ex.P-18, the rough sketch. He recovered M.O.1 - Cement mortar with kerosene, M.O.2 -sample cement mortar, M.O.3 - burnt cloth - red and

green colour, M.O.4 -burnt cloth - green colour, M.O.5-5 litre white plastic can with kerosene smell and M.O.6 - match box from the scene of

occurrence under Ex.P-3 Mahazar attested by P.W.6 and another. On receipt Ex.P-10, the death intimation, from P.W.12, the Doctor, that the

victim died at 9.00 a.m. P.W.16 altered the case into u/s 302 IPC and despatched Ex.P-19, the amended FIR, to the Court. Thereafter, P.W.16,

the Inspector of Police, proceeded to the hospital and conducted inquest on the body of the deceased between 11.00 a.m. and 1.00 p.m. in the

presence of panchayatdars and witnesses and prepared Ex.P-20, the inquest report. Thereafter, the dead body was sent for postmortem through

P.W.10, the Head Constable, with Ex.P-12, Requisition. P.W.16, the Inspector of Police, examined the witnesses and recorded their statements.

(g) P.W.13,the doctor attached to the Government Hospital, Tuticorin, on receipt of Ex.P-12 Intimation from the Inspector of Police, conducted

inquest on the body of the deceased at 2.30 p.m. on 04.09.2002 and on completion of postmortem, P.W.13 gave Ex.P-11, the Postmortem

Certificate, opining that the deceased died of superficial burns of 95% and its complication. After postmortem, P.W.10, the Head Constable,

recovered M.O.7 - a piece of green colour saree and M.O.8 - Nighty from the body of the deceased and handed over the same to the Inspector

of Police.

(h) Pending investigation, on 10.09.2002, P.W.16, the Inspector of Police, took the accused, who surrendered before the Court and sent to

judicial custody, into police custody and when enquired in the presence of witnesses, the accused came forward to give a voluntary confessional

statement and P.W.16, the Inspector of Police, recorded the same. Ex.P-21 is the admissible part of the confessional statement of the accused,

pursuant to which the accused took and produced M.O.9 - Lungi with kerosene smell and the same was recovered under Ex.P-22, the Mahazar.

Thereafter, the accused was again sent to judicial custody. P.W.16, the Inspector of Police, examined the witnesses and recorded their statements.

He gave Ex.P-13 Requisition to the Court for sending the material objects recovered in this case for chemical analysis and accordingly they were

sent to Forensic Lab under Ex.P-14, the letter of court, which resulted in two documents Ex.P-15, the Serologist''s Report and M.O.16, the

Chemical Examiner''s Report. On completion of investigation, P.W.16 filed the final report against the accused on 12.10.2002.

After committal proceedings, the case was taken on file by the Sessions Court in S.C. No. 87/2007 and necessary charge was framed. To

prove the charge against the accused, the prosecution examined 16 witnesses as P.Ws.1 to 16 and marked 22 documents as Exs.P-1 to P-22 and

produced M.Os.1 to 9. On completion of the evidence on the side of the prosecution, when the accused was questioned u/s 313 of the Criminal

Procedure Code about the incriminating circumstances found in the evidence of prosecution witnesses, he flatly denied all of them as false. On the

side of defence, neither oral evidence nor documentary evidence was let in. The trial court, after hearing the parties, took the view that the

prosecution has proved the charge against appellant/accused beyond reasonable doubt, found him guilty, convicted him thereunder and awarded

punishments as referred to above. Hence this appeal has been brought forth by the accused.

Advancing arguments on behalf of the appellant/accused, the learned Counsel Mr. C. Ramesh, would make the following submissions.

(a) In the instant case, according to the prosecution, the occurrence has taken place at 3.30 a.m. on 04.09.2002 and the prosecution examined

P.Ws.1 and 2 as eye-witnesses to the occurrence but, they could not have seen the occurrence at all. Admittedly, the house of the deceased was

actually bolted from outside and the deceased and the appellant were actually sitting outside the house at about 3.00 or 3.30 a.m. on 04.09.2002.

P.Ws.1 and 2 would claim that on hearing the distressing cry, they opened the window, peeped through it and witnessed the occurrence when the

appellant/accuse was pouring kerosene on their mother and setting her ablaze. This evidence of P.Ws.1 and 2 should have been rejected by the

trial court, since there was no window shown available in the wall of the house and even the observation mahazar and the rough sketch, marked as

Ex.P-2 and P-18, do not indicate the availability of any window and apart from that even the Investigator has candidly admitted that there was no

window at all. If to be so, P.Ws.1 and 2 could not have seen the occurrence at all and thus their evidence should be eschewed.

(b) The prosecution relied on the dying declarations, namely Ex.P-1, which was alleged to have been given by the victim to P.W.11, the Head

Constable, at about 5.30 a.m. and also the dying declaration alleged to have been recorded by P.W.15, the Judicial Magistrate, at 4.35 a.m. and

marked as Ex.P-17. Both these documents should have been rejected by the trial court for the simple reason that according to P.W.13, the

postmortem doctor, burn injures were found on the body of the deceased at 95 % and if that be so a person could not talk properly and,

therefore, in such circumstances, the victim could not have been in a fit state of mind or with full consciousness to give any such statement and thus

these statements should not be given any evidentiary value.

(c) Added further the learned Counsel, even according to the postmortem doctor P.W.13, the entire hands were found burnt and if to be so, the

thumb impression of the victim could not have been obtained either by the Judicial Magistrate as found in Ex.P-17, the Dying Declaration, or by

P.W.11, the Head Constable, in Ex.P-1 statement and thus all would go to show that these documents should have been rejected and should not

be given any evidentiary value and hence the prosecution has miserably failed to prove its case.

(d) Learned Counsel in advancing his further arguments would submit that in the instant case, there was, admittedly, a quarrel between the

deceased and the accused as could be seen from Ex.P-1 Statement alleged to have been given by the victim at about 5.30 a.m. to P.W.11 the

Head Constable and even from the descriptions made in the document ''History of the Case'' that there was a wordy altercation between the

appellant and the deceased for a long time, as a result of which the appellant poured kerosene on the deceased and set her ablaze. Further, the

appellant/accused has not brought any kerosene with him to the house of the deceased but, he has taken it from the house of the deceased and

poured on her and set fire and therefore the act of the accused was never intentional nor premeditated and this aspect has got to be considered by

the Court.

The Court heard the learned Additional Public Prosecutor on all the submissions made by the learned Counsel for the appellant/accused and

paid its anxious considerations to the submissions made on either side and also perused the materials available on record.

It is not in controversy that pursuant to the occurrence that had taken place at 3.30 a.m. on 04.09.2002, one Geetha was taken to the hospital

with burn injuries where she was admitted by P.W.7, the Doctor, at about 3.50 a.m. and despite treatment she died in the morning hours on the

same day. Though a case was originally registered by P.W.11, the Head Constable, u/s 307 IPC, it was subsequently altered to u/s 302 IPC on

her death. Following the inquest made by the Investigation Officer and preparation of Ex.P-20, the Inquest Report, the dead body of the deceased

was subjected to postmortem by P.W.13, the doctor, and he has categorically opined, as a witness before the Court and also through the contents

of Ex.P-11, the Postmortem Certificate, that the deceased died out of burn injures sustained by her. The fact that she died out of homicidal

violence was never disputed by the appellant before the trial court and hence the trial judge was perfectly correct in recording so.

In order to substantiate that it was the appellant/accused who poured kerosene on the deceased and set her ablaze and caused her death as a

direct consequence, the prosecution relied on the evidence of P.Ws.1 and 2 as eye-witnesses and also relied on other documentary evidence,

namely, Accident Register Copy marked as Ex.P-4, Ex.P-17, the dying declaration, recorded by P.W.15, the Judicial Magistrate and also Ex.P-

1, the Statement, given by the Victim t P.W.11, the Head Constable, at about 5.30 a.m. on 04.09.2002. As rightly pointed out by the learned

Counsel for the appellant, the evidence of P""Ws.1 and 2 could not be relied for any purpose for the simple reason that according to them, the

doors of the house were locked from outside and they were already sleeping inside the house and when they heard the distressing cry outside the

house, they immediately woke and after opening the window they witnessed the occurrence. P.W.16, the Inspector of Police, has candidly

admitted that there was no window available and further this fact of availability of window is not shown either in the observation mahazar or in the

rough sketch and thus it would clearly indicative of the fact that there was no window at all. Hence P.Ws.1 and 2, even after hearing the distressing

cry, they could not have seen the occurrence at all and hence the evidence of P.Ws.1 and 2 should be rejected.

Barring the evidence of P.Ws.1 and 2, in the considered opinion of the Court, the prosecution had sufficient evidence in the instant case. Firstly,

the victim was admitted in the Hospital by P.W.7, the Doctor, at about 3.50 a.m. and Accident Register Copy has been marked by the

prosecution as Ex.P-4. A perusal of Ex.P-4 would clearly indicate that she has mentioned before the doctor that the occurrence had taken place in

her house when the person who was living with her poured kerosene and set her on fire. Secondly, P.W.15, the Judicial Magistrate, has

categorically deposed that on intimation, she rushed to the hospital and she verified whether the victim was conscious and in a fit statement of mind

to give statement and after being certified by the duty doctor, who has been examined as P.W.8, that the victim was conscious and in a fit

statement of mind, she recorded the dying declaration of the victim. The certificate given by P.W.8, the Doctor has been marked as Ex.P-7. Both

the doctors, namely P.W.7 and P.W.8 and also the Judicial Magistrate have spoken to the effect tat the victim was in a fit statement f mind and

also conscious. A perusal of Ex.P-17, the dying declaration, would clearly indicate the entire incident which impelled the appellant/accused to act

so. Added circumstance was the statement given by the victim to P.W.11, the Head Constable, as found in Ex.P-1, at about 5.30 a.m., on the

strength of which a case came to be registered u/s 307 IPC and thus all these pieces of documents would clinchingly indicate that it was the

appellant/accused who poured kerosene on the deceased and set her ablaze.

Learned Counsel for the appellant brought to the notice of the Court that the deceased sustained 95% burn injuries and hence she could not

have spoken as found in Ex.P-17 and Ex.P-1. But, this contention cannot be countenanced for two reasons. Firstly, a question to that effect was

put to the postmortem Doctor P.W.13 but, not even a suggestion was put to P.W.8, the Doctor who has actually certified that the victim was

conscious and also in a fit statement of mind while given the declaration. Apart from that, even the postmortem Doctor P.W.13 has stated that she

could not speak fluently. To make a declaration as found in the Dying Declaration, it is not necessary that the declarant must speak fluently. What

is all required is only the substance. A reading of Ex.P-17, the dying declaration, Ex.P-4, the accident register copy and Ex.P-1, the statement,

which were recorded by the Judicial Magistrate, the Doctor and the Head constable, respectively, would clearly indicate that it was the accused

who has committed the crime by pouring kerosene on the deceased and setting her ablaze and hence the prosecution has brought home the guilt of

the appellant/accused without any iota of doubt.

Insofar as the second line of argument put-forth by the learned Counsel for the appellant that the act of the appellant/accused would not attract

the penal provision of murder but it was only culpable homicide not amounting to murder, the Court is unable to agree with the learned Counsel.

Learned Counsel would submit that there was a quarrel between the deceased and the appellant/accused at the time of occurrence, as a result of

which the appellant acted so. Admittedly, the deceased Geetha was given in marriage to a third person and she got three children also and in view

of strained relationship with her husband she was living apart and at that time, the appellant/accused developed illicit intimacy with her and on the

date of occurrence, the appellant/accused was insisting for a marriage with another lady, to which course the deceased was objecting by saying

that he was living with her for a long time and children were also there to be looked after and this is only exchange of words and this one could not

have, in anyway, provoked or it can not be said to be a sudden quarrel. Under such circumstances, the act of the appellant/accused cannot attract

any one of the exceptions u/s 300 IPC and hence the act of the appellant/accused pouring kerosene on a lady with whom he developed illicit

intimacy and living with her for a long time and caused her death cannot be but intentional and it would attract the penal provision of murder and

the trial judge was perfectly right in finding him guilty under the charge of murder and awarding the punishment of life sentence, which does not

require any disturbance in the hands of this Court, since it does not suffer either factually or legally.

In the result, the appeal fails and the same is dismissed. The judgment of the trial court, dated 02.12.2008, made in S.C. No. 87/2007, is

confirmed.