Jayalakshmi vs The State

M. Chockalingam, J.—Challenge is made to a judgment of the Additional Sessions Division (EC Court), Thanjavur, dated 23.12.2009,

made in S.C. No. 424/2008, whereby the appellant/accused, stood charged under Sections 498-A and 302 IPC and on trial, found guilty

thereunder and sentenced to undergo life imprisonment and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for one year

u/s 302 IPC and no separate punishment was awarded u/s 498-A IPC in view of the punishment imposed on the charge of murder.

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

(a) P.W.8 is the mother of tone Anitha, the deceased in this case. P.Ws.1 and 2 are the brothers-in-law of the deceased Anitha. Anitha is the 5th

daughter of P.W.8. She was given in marriage to one Natarajan, the son of the appellant/accused. During the relevant time, Anitha was living with

her husband Natarajan and the appellant/accused. At the time of marriage, seven sovereigns of gold jewels were given but, her husband''s family

was not satisfied with that. Thereafter, she was being tortured and during the time of Pongal, certain jewels were given. Even then they were not

satisfied. They were exhorting cruel treatment to her in the past.

(b) On the date of occurrence, that was on 23.01.2007, in the morning hours, Natarajan left for his work. At about 2.00 p.m., deceased Anitha

was lying on the bed and at that time she felt something was poured on her and even before she could wake up, the accused/appellant put fire on

her and set her ablaze. With burning injuries and distressing cry, Anitha came out and the neighbours put-off the fire and took her to the Thanjavur

Medical College Hospital.

(c) P.W.3, the Doctor attached to Thanjavur Medical College Hospital, was on duty on 23.01.2007. At about 3.40 p.m., P.W.3 admitted Anitha

and gave treatment. He also recorded the statement given by Anitha in Ex.P-13, the Accident Register copy. An intimation was given to the

respondent Police Station.

(d) P.W.18, the Sub-Inspector of Police, was on duty in the respondent police station on 23.01.2007. At about 6.00 p.m., he received an

intimation through V.H.F. about the admission of Anitha with burn injuries. He immediately rushed to the hospital and recorded the statement given

by Anitha, which is marked as Ex.P-14. He returned to the Police Station and on the strength of Ex.P-14, he registered a case in Crime No.

16/2007 under Sections 498(A) and 307 IPC. Ex.P-15, printed FIR, was sent to the Court and copies were sent to higher police officers for

further action.

(e) During the relevant time, P.W.14 was working as the Judicial Magistrate No. III, Thanjavur. On receipt of a message from Thanjavur Medical

College Hospital at about 6.45 p.m. on 23.01.2007, she proceeded to the hospital and recorded the statement of Anitha at 7.05 p.m., after being

certified by one Dr. Premalatha, the duty doctor, that Anitha was in a fit state of mind to give a declaration. The said Declaration is marked as

Ex.P-1.

(f) P.W.19, the Inspector of Police, took up the investigation, proceeded to the place of occurrence, made an observation in the presence of

P.W.11 and P.W.12 and prepared Ex.P-16, the observation mahazar and also drew Ex.P-17, the rough sketch. He recovered M.O.1 - a saree,

M.O.2 - a piece of saree, M.O.3 - a towel, M.O.4 - a kerosene bottle and M.O.5 - a match box from the place of occurrence under Ex.P-18

Mahazar attested by the same witnesses.

(g) P.W.20, the Inspector of Police, took up the further investigation in the case on 25.01.2007. He examined witnesses and recorded their

statements. On receipt of Ex.P-2, the Death Intimation, given by P.W.5, the Doctor, attached to the Thanjavur Medical College Hospital that

Anitha died at 3.30 p.m. on 26.01.2007, P.W.20 altered the case into under Sections 498(A) and 302 IPC and sent Ex.P-20, altered FIR, to the

Court. He sent the copies of the same to the Revenue Divisional Officer, Thanjavur, and also to the Deputy Superintendent of Police, Thiruvaiyaru

Range.

(h) P.W.7, the Revenue Divisional Officer, Thanjavur, on receipt of a copy of Ex.P-20, altered FIR, proceeded to the Hospital and conducted

inquest on the body of the deceased in the presence of panchayatdars and witnesses and prepared Ex.P-4, the Inquest Report. After inquest,

P.W.7 handed over the body to P.W.17, the Constable, for subjecting the body for postmortem.

(i) P.W.6, the Doctor attached to Thanjavur Medical College Hospital, conducted autopsy on the body of the deceased on 27.01.2007 and after

postmortem he issued Ex.P-3, the postmortem certificate, opining that the deceased would have died due to the effects and complications of

extensive burns. After postmortem, P.W.17, the Constable, recovered M.O.6 - saree from the body of the deceased and handed over the same

to the Inspector of Police and Ex.P-12 is his Special Report. Ex.P-21 is the Mahazar for recovery of M.O.6.

(j) P.W.21, the Deputy Superintendent of Police, on receipt of a copy of Ex.P-20, the altered FIR, proceeded to the place of occurrence,

examined witnesses and recorded their statements. He made an observation of the place of occurrence. He proceeded to the Hospital and

examined witnesses. On 27.01.2007 at about 02.30 p.m., P.W.21 arrested the accused and when enquired in the presence of P.W.13, the

accused came forwarded to give a voluntary confessional statement and the same was recorded by P.W.21. Thereafter the accused was subjected

to judicial custody. Ex.P-9 is the signature of P.W.13 in the confessional statement of the accused. P.W.21 examined the witnesses and recorded

their statements. On 05.03.2007, he gave a requisition to the Court for sending the material objects recovered in the case for chemical analysis.

P.W.21 completed the investigation and filed the final report against the accused on 10.04.2007.

After committal proceedings, the case was taken on file by the Sessions Court in S.C. No. 424/2008 and necessary charges were framed. To

prove the charges against the accused, the prosecution examined 21 witnesses as P.Ws.1 to 21 and marked 21 documents as Exs.P-1 to P-21

and produced M.Os.1 to 6. 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, she 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 charges against the accused beyond reasonable doubt, found her guilty under both the charges under Sections 498(A)

and 302 IPC, convicted her thereunder and sentenced her as referred to above. Hence this appeal at the instance of the appellant/accused.

Advancing arguments on behalf of the appellant/accused, learned Counsel made the following points in assailing the judgment of the trial court.

(a) In the instant case, the prosecution has miserably failed to prove its case. According to the prosecution, the occurrence has taken place at 3.00

p.m. on 23.01.2007. The prosecution had no direct evidence to offer. It relied upon circumstantial evidence. Mainly two circumstances were relied

on. The 1st circumstance which was relied on by the prosecution was Ex.P-1, the dying declaration, recorded by P.W.4, the Judicial Magistrate.

Before the trial court, the prosecution pointed out that in the dying declaration the victim has categorically stated that kerosene was poured on her

by her mother-in-law, the appellant/accused, and she set her ablaze by litting fire. This Ex.P-1 statement has been recorded by P.W.4, the Judicial

Magistrate, on the evening hours. But, all the circumstances are pointing to the fact that the said statement should have been a tutored one or a

false version made by the victim.

(b) According to the learned Counsel, in Ex.P-1 Statement the victim has stated that the occurrence was at 2.00 p.m., but when she was taken to

the hospital and examined by P.W.3, the Doctor, at 3.40 p.m. she has stated to the Doctor that the occurrence was at 3.00 p.m. From the

evidence P.W.3, it is very clear that he has categorically stated that when the victim was brought to the hospital, she was conscious and oriented

also and when questioned she has categorically stated that she herself poured kerosene and set her on fire and that it was an act of self-immolation.

(c) The other circumstance against the prosecution to show that the prosecution has come with a false story was that though the husband of the

victim was shown as a witnesses, he was not examined at all. Further, P.W.l7, the Revenue Divisional Officer, had conducted an enquiry to find

out whether it was a dowry death and he has given Ex.P-4 Report to the effect that there was no dowry death at all.

(d) P.W.8 is the mother of the deceased and she has categorically stated that when she went to the hospital she came to know that the victim, her

daughter, was brought to the hospital by the appellant/accused and also by her husband and nowhere she has stated that she was brought to the

hospital by any other person and if really the appellant/accused had got involvement in the alleged crime there is no need for her to bring the victim,

her daughter-in-law, to the hospital. Added further, P.W.8 has categorically stated that the relationship between the families was cordial till the time

of the incident and she has not reported any dowry demand or harassment. P.W.8 has further deposed that even before the marriage the victim

eloped with somebody and thereafter she was brought back and a panchayat was convened, wherein she was advised and only thereafter she was

given in marriage to the son of the appellant/accused and this was also made known to the family of the appellant/accused. All would clearly

indicate that the prosecution has failed to prove the motive for the occurrence and thus what is found in Ex.P-1 must be a tutored or false version.

Under such circumstances, the case of the prosecution was actually a false story and hence the judgment of the trial court has got to be set aside.

The Court heard the learned Additional Public Prosecutor on all the submissions made by the counsel for the appellant and paid its anxious

consideration to the submissions made on either side and perused the materials on record.

It is not in controversy that one Anitha, daughter of P.W.8, following the incident that had taken place in the afternoon hours on 23.01.2007

was taken to the Thanjavur Medical College Hospital, where she was given initial treatment by P.W.3, the Doctor, at about 3.40 p.m., as is

evident from Ex.P-13, the Accident Register Copy. Despite treatment given, she died on 26.01.2007. Though a case was originally registered u/s

498(A) and 307 IPC at the respondent Police Station on the strength of Ex.P-14, the statement recorded from the victim by P.W.18, the Sub-

Inspector of Police, on her death, it was converted into one under Sections 498(A) and 302 IPC and P.W.7, the Revenue Divisional Officer,

conducted inquest and he has also given report under Ex.P-4. Thereafter, the dead body was subjected to postmortem by P.W.6, the Doctor,

who has categorically opined that the deceased died due to the effects and complications of extensive burn injuries. This fact was never the subject

matter of controversy before the trial Court and hence the trial judge was perfectly correct in recording so.

Before the trial court, in order to substantiate the charges levelled against the appellant/accused, the prosecution had no direct evidence to offer.

It mainly relied on two pieces of evidence. Firstly, the dying declaration given by the victim to P.W.4, the Judicial Magistrate, as found under Ex.P-

Secondly, the Ex.P-14 Statement given by the deceased and recorded by P.W.18, the Sub-Inspector of Police, at about 8.00 p.m. In a given

case like this, where a dying declaration is the sole piece of evidence and if it inspires the confidence of the Court, it is well settled principle of law

that a conviction has got to be sustained. However, when the court is able to see that such a dying declaration is shrouded with doubts or suspicion

though such a statement of dying declaration has been recorded by the Judicial Magistrate, if, in the opinion of the court that it could have come

into existence due to tutoring or it is a false version, then such a statement cannot be acted upon or cannot form basis for any conviction.

In the instant case, P.W.4 is the Judicial Magistrate. She has categorically deposed that on intimation she went to the hospital and after being

certified by the duty doctor that Anitha was in a fit state of mind to give declaration she recorded the dying declaration as found in Ex.P-1

Document. In view of the following circumstances which are noticed by the Court, in the considered opinion of the Court, a conviction cannot be

sustained on the basis of Ex.P-1, though it was recorded by the Judicial Magistrate.

The case of the prosecution was that from the time of marriage the appellant/accused, being the mother-in-law of the victim, was torturing the

victim in view of the deficiency in the dowry and often she was making the demand and that was the main reason which impelled her to commit the

offence. P.W.8 is the mother of the victim. She has no where stated that there was any dowry demand or her daughter was tortured. But, on the

contrary, she has deposed that the relationship with the families was very cordial all along from the time of marriage. Even P.W.7, the Revenue

Divisional Officer, who conducted inquest, has given a report to the effect that it was not a dowry death and no pacnahatdars stated that it was a

dowry death. This would clearly go to show that the prosecution case that the victim met with cruel treatment in the past and due to the dowry

demand she was set her ablaze by the appellant/accused cannot be believed. Thus, it would be quite clear that the motive attributed to the

appellant/accused remain unproved.

Insofar as the incident is concerned, as per Ex.P-1 Statement, incident had taken place at 2.00 p.m. But, in Ex.P-13, the Accident Register

Copy, it is found mentioned that the occurrence has taken place at 3.00 p.m. A reading of Ex.P-1 would indicate that she raised distressing cry

and neighbours gathered and immediately they took her to the Hospital. The neighbours all examined before the Court have turned hostile. P.W.8,

the mother of the victim, has categorically stated that when she came to the hospital she came to know that the victim was brought to the hospital

by her husband and her mother-in-law. She has also spoken about the conduct of the appellant/accused who brought the victim to the hospital

along with her husband. The main witness in the instant case who should have examined by the prosecution was the husband of the victim. But, for

the reasons best known to the prosecution, he was not examined before the trial court.

Added further, the earliest document is the Accident Register Copy, which is marked as Ex.P-13 and the same has been issued by P.W.3, the

Doctor, who admitted the victim in the hospital and gave initial treatment. P.W.3 has categorically deposed that when the victim was brought to the

hospital, she was conscious enough and also oriented and when questioned she gave a statement that she poured kerosene on her body herself and

attempted for a self-immolation and thus court is unable to see any reason why this document should be disbelieved. If really such an incident as

alleged by the prosecution had taken place, it is not necessary for her to make such a statement before the Doctor. This document was recorded

by P.W.3 Doctor at 3.40 p.m. Dying Declaration Ex.P-1 came to be recorded at about 7.00 p.m. Further, P.W.8 has categorically stated that

even before the marriage, the victim eloped with somebody and thereafter she was brought back and there was a panchayat in which she was

advised and only thereafter the marriage was taken place between the victim and the son of the appellant/accused and this fact was also made

known to the family of the appellant accused. Apart from that, the marriage between the victim and Natarajan has taken place within a short span

of four months.

All the above would clearly indicate that the victim herself poured kerosene and set her ablaze and it was an act of self-immolation and thus

what is found in Ex.P-1 Dying Declaration should either be a tutored or false version which was subsequently made after Ex.P-13 or it must be a

false introduction given by the victim. Once Ex.P-1 Statement given by the victim, though recorded by the Judicial Magistrate, in the opinion of the

Court, is shrouded with suspicion, the same cannot form the basis for conviction and further Ex.P-1 Statement was actually followed by the

Statement given by the victim before P.W.3, the Doctor, and found mentioned in Ex.P-13. Under such circumstances, the Court is of the opinion

that it is highly unsafe to act on such evidence to come to the conclusion that the appellant/accused is guilty of either the charge u/s 498-A IPC or

the charge of murder u/s 302 IPC. Hence, the benefit of all these reasonable doubts should go to the appellant/accused to which she is entitled to

and she should be acquitted of the charges levelled against her by upsetting the judgment of the trial Court.

Accordingly, the criminal appeal is allowed and the judgment of trial court, dated 23.12.2009, made in S.C. No. 424/2008 is set aside and the

appellant is acquitted of all the charges levelled against her. The appellant is directed to be released forthwith, unless her presence, in accordance

with law, is required in connection with any other case. The fine amount, if any, paid by her is directed to be refunded.