Kani @ Kaniamma and Another vs State

C.T. Selvam, J.—This criminal appeal is preferred against the judgment dated 26.9.2011 passed in S.C. No. 227 of 2008 by the learned Sessions Judge, Mahalir Neethimandram, Chennai, where-under the 1st appellant was convicted for offence u/s 302 IPC and sentenced to life imprisonment and fine of Rs. 10,000/- i/d 6 months S.I. and both the appellants were convicted for offence u/s 498A IPC and sentenced to undergo 3 years rigorous imprisonment and fine of Rs. 5,000/- i/d 3 months S.I. The prosecution case is as follows:

i) The deceased was the wife of the second accused. They married in the year 2000 and had two children. Owing to carrying the impression that against 10 sovereigns of gold jewellery promised, the parents of the deceased had only given 7 sovereigns, the second accused, at the instigation of the first accused/his mother, repeatedly harassed his wife.

ii) On 3.12.2007, the birthday of one of the children was celebrated. Thereafter, the 1st and 2nd accused sent away the children to the house of the deceased''s sister-in-law, who had no children. When the deceased raised an issue, she was beaten by both the accused as also by one of the sisters-in-law. She left her matrimonial home. Her mother P.W. 1 pacified her and brought her back.

iii) The 1st accused abused P.W. 1, the mother of the deceased. P.W. 1 left informing that she did not want to get into a quarrel. Immediately upon her leaving, she heard the cry of her daughter and she saw the 1st accused running out of the house. She found her daughter in flames. She put out the fire and took her to the Kilpauk Medical Hospital.

iv) Upon intimation received from the hospital, the Sub-Inspector of Police, P.W. 16 recorded the statement of the deceased, went to the Police Station and registered a case in Crime No. 708 of 2007 for offence u/s 307 IPC. P.W. 17, Inspector of Police took up investigation, visited the scene, prepared observation mahazar, Exhibit P-2 and sketch, Exhibit P-18 in the presence of witnesses and recovered M.Os. 1 to 4 (pump stove, cap of pump stove, polyester saree piece and match box). P.W. 17 examined witnesses and arranged for recording of the statement of the deceased. On hearing of death of the deceased at 00:05 hours on 4.12.2007, he altered the FIR to one for commission of an offence u/s 302 IPC. Pursuant to the inquest conducted by the RDO, he further altered the FIR to include the offence u/s 498(A) IPC.

v) P.W. 17 arranged for post-mortem, obtained post-mortem report and forwarded the seized articles to Court. He arrested the accused at about 12 hours on 5.12.2007 and recorded their confessional statements. The material objects recovered were sent for chemical analysis under Exhibit P-21 and the report in Exhibit P-22. On completion of investigation, P.W. 17 filed a charge sheet for offences under Sections 498(A) and 302 IPC. The first accused/mother-in-law stood trial for offences under Sections 498(A) and 302 IPC and the 2nd accused stood charged of offence u/s 498(A) IPC.

vi) Before the Trial Court, the prosecution examined 17 witnesses and marked 22 exhibits and 4 material objects.

The defence examined one witness.

On appreciation of evidence and materials placed before it, the Trial Court convicted the accused and sentenced them as above stated.

We have heard the learned counsel for the appellants and the learned Additional Public Prosecutor.

Learned counsel for the appellants contended that the FIR in the case was registered at about 21:00 hours on 3.12.2007. The same reached the Court only the next day. The earliest version tendered by the deceased was that informed to P.W. 15, Doctor, who was in-charge of the casualty ward at Kilpauk Medical Hospital, Chennai. When admitted in hospital at 6:40 p.m. on 3.12.2007, the deceased had informed that she attempted self immolation at about 5.30 p.m. at her house. This position stood substantiated by the fact that Exhibit P-15, Accident Register maintained at the hospital recorded such position. The Doctor at the burns Section of the hospital P.W. 11 had deposed that such was the position informed also by the sister of the deceased. As against this, the prosecution sought to put forward four oral declarations given by the deceased, i.e., one to her mother/P.W. 1, second to her father/P.W. 2, third to her sister/P.W. 3 as also to the Sub-Inspector of Police, wherein it is alleged that she informed of her mother-in-law pouring kerosene on her and setting her on fire. Such evidence was unreliable and even the dying declaration, Exhibit P-13 tendered by the deceased to P.W. 14/Metropolitan Magistrate was unreliable for the reason that P.W. 3, who was a Police Constable, had been present at the hospital and Exhibit P-13 was a tutored version. A perusal of the same reflects the position that excepting for the last word, there was no mentioning of the deceased having been set on fire. The last word has been inserted by way of an after thought. The spacing between lines in the dying declaration recorded by the learned Magistrate and the spacing between this word and the immediately preceding line would clearly reveal that the contention of learned counsel for the appellants is right. He therefore would contend that no credence would be attached thereto. Contending that the present was a case of self immolation, learned counsel pressed into service the evidence of D.W. 1, neighbour, who informed that A1 was with him before the occurrence and only upon hearing the cries of the accused, he along with others proceeded to the scene of occurrence. Learned counsel for the appellants submits that D.W. 1 was examined in chief, but the prosecution had failed to cross examine him. He would rely upon the judgment of the Apex Court in Sarwan Singh Vs. State of Punjab, , wherein it was observed that it is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination, it must follow that the evidence tendered on that issue ought to be accepted. Though P.W. 4 had been examined by the prosecution for the purpose of informing the presence of A1 at the place of occurrence, she had not supported the prosecution case and had been treated hostile. Learned counsel submitted that investigation in the case had been influenced by P.W. 3, sister of the deceased, who was a Constable. Turning to the charge u/s 498(A), learned counsel would submit that the evidence of P.W. 13, R.D.O., was to the effect that the deceased and the second accused led a congenial family life. Though P.W. 5 had been examined by the prosecution to inform of disputes and discord between them, she had not supported the prosecution case and had been treated hostile. Learned counsel also seeks support from the very FIR, which informs of the second accused, husband of the deceased trying to put out the fire by using a gunny bag and of him having thereafter run away in fear.

Learned Additional Public Prosecutor would submit that immediately after the occurrence, P.W. 1, mother of the deceased had witnessed her daughter being ablazed, had put out the fire and accompanied her to the hospital. On the way thereto, the deceased had informed that the first accused had poured kerosene on her and set her on fire. Immediately after admission into hospital and on receipt of intimation from the Police, P.W. 16 had come to the hospital and recorded the statement of the deceased, where again the deceased reiterated the position. Besides this, she had informed this position also to P.W. 2, her father and P.W. 3, her sister, when they arrived at the hospital. P.W. 16 had taken care to ensure recording of the statement u/s 164 Cr.P.C. and on the very date of occurrence, P.W. 14, learned Metropolitan Magistrate had recorded the deceased''s statement. He had recorded the statement on the assurance of P.W. 11, Doctor, as to the fitness of the deceased to make the same. Too much could not be read into the fact that the word came to be recorded only at the end of the statement. P.W. 13, R.D.O., in the course of chief examination had informed his finding of the case being one of cruelty. Therefore, A1 and A2 stood charged and convicted u/s 498(A) IPC and A1 stood charged and convicted u/s 302 IPC. Hence, the finding of the Trial Court was one, which did not permit any interference by this Court.

We have considered the rival submissions.

P.W. 15, Doctor had clearly deposed that the deceased had informed of having attempted self immolation. He had recorded such position in Exhibit P-15, Accident Register. This finds support also from the fact that P.W. 11, Doctor at the burns Section of the hospital had spoken to the sister of the deceased informing likewise. In the facts and circumstances of the case, the testimony of P.W. 1 to P.W. 3 informing of oral declarations made to them by the deceased of she having been set on fire by A1, the mother-in-law is to be taken with a pinch of salt. The contention that because one of the sisters of the deceased, P.W. 3, happened to be a Police Constable, the Investigating Agency had acted in such manner as would serve the intent of the family members of the deceased and such is the reason why even Exhibit P-1, FIR registered by the Sub-Inspector of Police informs also acts of cruelty and commission of offence of death by burning, cannot be easily brushed aside. We find that inclusion of the word in the dying declaration recorded in Exhibit P-13 is an interpolation. The word was not mentioned in the body of the statement and has been included as a separate word immediately there below. It is evident to the naked eye that the spacing between other lines in the statement is larger and in the available space, this word stands inserted. Once we find reason to suspect the Exhibit P-13, even though it stands recorded by a Judicial Magistrate, it would be unsafe to base our findings thereon. We therefore would proceed on the basis of the evidence of P.Ws. 15 and 11, Doctors and Exhibit P-15, which informed the case to be one of self immolation and acquit the first accused of offence u/s 302 IPC.

As regards offence u/s 498(A) IPC, alleged against both accused, we would go by the evidence of P.W. 13, R.D.O., and his admission in cross examination that the Panchayats had deposed that they had no knowledge about any dispute and that the deceased and her husband, A2 lived happily. We also take note of the fact that P.W. 5, who has been examined by the prosecution to inform, otherwise has turned hostile. We therefore would acquit both accused of offence u/s 498(A) IPC.

In conclusion, we may state that the proposition put forth by learned counsel for the Appellants, viz., where evidence tendered on one side has not been subjected to cross examination, the same would have to be accepted as proved, is not of universal application. If in a given case, we find that there is overwhelming evidence in favour of the prosecution case the fact that a defence witness has not been cross examined would not be enough reason to throw out the prosecution case. In such circumstances, we might well provide for cross examination of the concerned witness and proceed further. With the above observation, the Criminal Appeal is allowed. The conviction and sentences imposed on the appellants/accused by the learned Sessions Judge, Mahalir Neethimandram, Chennai in S.C. No. 227 of 2008 dated 26.9.2011 are set aside and they are acquitted of the charges leveled against them. As the 2nd appellant is already on bail, the 1st appellant is directed to be released forthwith, unless her custody is required in connection with any other case. The bail bonds, if any executed by the appellants/accused, shall stand cancelled. The fine amounts, paid by the appellants/accused shall be refunded.