Kannan and Another vs State

S. Palanivelu, J.—Accused are the appellants in this appeal. The appellants have come forward with this appeal challenging the judgment

dated 7-1-2005 by the learned Additional Sessions Judge, Fast Track Court No. IV, Poonamallee made in S. C. No. 191 of 2004 convicting the

appellants for the offence under Sections 498A. IPC and 304B of IPC sentencing to undergo three years rigorous imprisonment and imposed fine

of Rs. 1000/- in default to undergo one year rigorous imprisonment for the offence 498-A and 10 years rigorous imprisonment for the offence u/s

304B of IPC. The sentences were also suspended and the appellants were released on bail, pending disposal of the appeal, on executing a bond

for a sum of Rs. 5,000/- each with two sureties each for like sum to the satisfaction of the learned IV Metropolitan Magistrate, Egmore, Chennai-8

and on further condition that they should appear before the trial Court on every Monday, until further orders. The following is the brief account of

the prosecution case :--

2(a) The deceased Koteeswari is the wife of the first accused and second accused is his mother. Their marriage was solemnized on 10-5-2000.

The deceased had given a complaint statement Ex. P9 on 23-4-2001 at 11.40 a.m. while she was undergoing treatment as inpatient in

Ramchandra Medical College Hospital wherein she has stated that she was pregnant by seven months, that on 23-4-2002, at about 8.00 a.m.

when her husband had been away for his job, her mother-in-law had gone to shop, that at about 8.15 a.m., when she was lighting pump stove to

boil the milk, there was a blast in the stove and she caught fire, that she raised alarm and on hearing it, the neighbours reached to the place of

occurrence and took her to Ramachandra Medical College Hospital, that her husband was treating her with affection and there was no love lost

between them and that she was also happy.

2(b) In the complaint, the duty doctor by name Nisha has also signed with date and time. The complaint was brought to the police station by the

Sub-Inspector of Police and FIR, Ex. P10 was also lodged. Since the parents of the injured could not bear the expenses for the private hospital,

she was removed to Kilpauk Medical College Hospital. While she was taking treatment in that hospital, PW-6, learned Judicial Magistrate

recorded dying declaration, Ex. P8 from the injured in which she has stated that on that day morning since she could not tolerate the cruelty

perpetrated on her by her mother-in-law and her husband, she poured kerosene over her and that she was unable to speak more than that. The

duty doctor was also present and she certified on the dying declaration that the patient was conscious while giving the dying declaration and she

was present throughout the process.

2(d) PW-1, the father of the deceased also lodged a complaint in Ex. P1 before the police stating that both the accused were demanding

Television. Tape Recorder and two sovereigns of gold jewels and that both of them tied her, poured kerosene and set her fire and that she died at

4.30 a.m. on 24-4-2001. The body was produced for conducting post-mortem and the doctor attached to Kilpauk Medical College Hospital,

PW-10 conducted autopsy over the deadbody and issued Ex. P15, post-mortem certificate.

2(e) PW-10 is of the opinion that the deceased would appear to have died due to the effects of burns. PW-2, Tahsildar on receipt of the FIR

proceeded to the scene of crime and conducted inquest over the dead body of the deceased. He was advised by the District Collector. Chennai.

He also examined the witnesses and recorded their statements. Ex. P2 is the inquest report and Ex. P5 is enquiry report in which he has opined

that there was dowry demand on the part of the accused.

2(f) PW-11, Deputy Superintendent of Police, on receipt of the FIR proceeded to the occurrence place and checked the observation mahazar and

rough sketch already prepared by the Sub-Inspector of Police. He examined witnesses and recorded their statements. He examined Dr. Nisha and

got the accident register, Ex. P6, from her. He also examined Dr. Rajalakshmi who treated the deceased while she was in Kilpauk Medical

College Hospital. Ex. P17 is the accident registered issued by her. On 25-4-2001, at about 11.00 a.m. he arrested both the accused near Sundar

Theatre at Poonamallee and sent them for judicial custody. At the outset, the case was registered u/s 174, Cr. PC. and subsequently, PW-11

altered the case into one u/s 304(1)(B), IPC and sent alteration report, Ex. P-18 to the Court. He also got a report from the Tahsildar. PW-2 and

examined him. PW-12 completed the investigation and laid charge-sheet against the accused.

After the prosecution evidence was over, the trial Court questioned the appellants/accused u/S. 313, Cr. P.C. as regards incriminating materials

available against them in the prosecution evidence. They denied the complicity to the offences. They did not examine any witnesses nor had they

marked any documents.

After analysing the evidence and materials on record, the learned Additional Sessions Judge. Fast Track Court No. IV. Poonamallee convicted

and sentenced the appellants as cited above. Challenging the judgment of conviction, the appellants are before this Court.

The point for consideration is, ""whether the prosecution has established the charges framed against the appellants/accused beyond all reasonable

doubt?.

Point:--

4(a) The law was set into motion by the complaint lodged by the deceased herself. This is the first version from her about the occurrence in which

she has stated that the occurrence is an accidental stove blast and that she and her husband were living happily.

4(b) The learned counsel for the appellants Mr. T.S.N. Prabakaran has taken much pains to indicate various circumstances available in this case

which are very much favourable to the appellants. He would submit that there are three dying declarations from the mouth of the deceased among

which two are in favour of the appellants. The first statement from the deceased is in the form of a statement recorded by the Sub-Inspector of

Police, PW-8 wherein she has given a clean chit to her husband. She would say that there was no friction between her and her husband and that

she was also happy.

4(c) The next statement is Ex. P-16 which is the accident register issued by Sri Ramachandra Medical College Hospital, Chennai in which it is

stated that one Mrs. S. Rani (aunty) brought her to the hospital. As regards the occurrence, it is recorded therein that she is alleged to have

sustained burns due to stove blast on 23-4-2001 at about 9.00 a.m. at her residence. It is also stated that the patient was conscious, responding to

comments, etc.

4(d) The next version as to the occurrence is available in Ex. P17 which is accident register issued by Dr. Rajalakshmi who has not been

examined. In Ex. P17, it is stated that the injured was brought by one Sekar who is the relative of the injured. In this document, it is alleged that she

sustained burns when stove blast at about 8.30 a.m. in her residence. The patient was conscious and 90% of burns were found all over the body.

The learned counsel for the appellants would contend that the above said Rani, Sekar and Dr. Rajalakshmi have not been examined by the

prosecution and had they been examined, the Court would have been appraised of real state of things. The prosecution very much relied upon the

dying declaration recorded by PW-7, the learned Judicial Magistrate. It is profitable to furnish the dying declaration in Ex. P8 recorded by PW-6

as it stands--

(Vernacular matter omitted.....Ed.)

The Doctor, PW-6, Kamatchi who was present at the time of recording dying declaration would say that the patient was conscious throughout

the process. In the cross-examination, she says that she has not specifically told that the injuries was in a fixed mind to give dying declaration, that

the injured was found with 100% of burns and when a lady had sustained burn injuries to the tune of 100%, she could not speak properly, that

since she was pregnant by seven months, they did not give any medicine and that if she were not a pregnant lady, they would have given pain

killers.

The learned Additional Public Prosecutor would submit that in this case. Ex. P8, the dying declaration has been properly proved, that the mental

alertness of the injured is also shown to be fit by the certificate recorded by the doctor and that the confession could be based solely on the dying

declaration and that it is the law.

Assailing the dying declaration, the learned counsel for the appellants would contend that merely because the dying declaration was recorded by

a Judicial Magistrate, it could not be treated that it was containing truth, that the other circumstances in the case should also be considered while

appreciating the dying declaration and that in the existence of Exs. P-9, 16 and 17, the dying declaration, Ex. P-8 would loose its probative value.

It is the duty of the doctor who is available at the time of recording of dying declaration by the Judicial Magistrate, to record the physical and

mental condition of the injured whether she was fit physically and mentally to give dying declaration. It is desirable for the doctor in this situation to

record as the patient is physically and mentally fit to give dying declaration and that he (doctor) was present all along the recording of the dying

declaration till it was completed. The Hon''ble Supreme Court has held that if the person who is recording the dying declaration is satisfied that the

patient is physically and mentally fit to give a dying declaration, it is enough and it would fulfill the requirement of law.

Adverting to the facts of the present case, there could be no doubt on the fact that the deceased was conscious and fit to give dying declaration

but the Court has to see the truth in the statement. As already stated, on earlier three occasions on the same day, the injured/deceased was stated

to have sustained burn injuries by means of a stove blast. In this context, the learned Additional Public Prosecutor draws attention of this Court to

the observation mahazar prepared by the Police at 12.30 p.m. on the date of occurrence, i.e. 23-4-2001 in which it is stated that in the kitchen fire

wood oven was seen along with cooking wares, that in the kitchen there is no features that the occurrence took place there and that in the

bedroom the occurrence took place where the kerosene pump stove was not found. Taking advantage of this point in the observation mahazar, the

learned Additional Public Prosecutor would submit that when there was no kerosene pump stove in the house, the statement as recorded in Exs.

P9, 16 and 17 would not have been true and they have to be rejected in view of the dying declaration.

Ex. P-9 was given by the deceased herself. In Exs. P-16 and 17, it is stated that the intimation as to the occurrence was supplied by Rani and

Sekar who are admittedly close relatives of the deceased as mentioned in the document but they were not brought to witness box. In case had they

been examined, the Court would have got an opportunity to know about the real situation. This Court cannot brush aside circumstances available

in Exs. P-9, P-16 and P-17. These documents came to existence on the same day before dying declaration continuously in two hospitals and the

dying declaration came to existence at 3.50 p.m. on the same day. There was sufficient gap between Ex. P-17 and Ex. P-8. In Ex. P-17, it is

mentioned that it was recorded at 11.20 a.m. while Ex. P-8 was recorded at 3.25 p.m. There is every likelihood for this Court to infer since there

was adequate time gap, the relatives of the deceased would have taken advantage of the situation and tutored her so as to implicate both the

appellants into the occurrence. The opinion of this Court is also fortified from one more circumstance in this regard.

It is the case of the prosecution that the appellants demanded television, tape recorder besides two sovereigns of gold jewels but in the dying

declaration only one line is available indicating the torture perpetrated by the appellants towards the injured. Of course at that point of time, the

injured was very much suffering from 100% of burns, that hence could not have come out with all the particulars but she says that she could not

tolerate the torture given by her husband and mother-in-law.

As adverted to supra, the versions in Exs. P-9, P-16, and P-17 are having sufficient force enabling this Court to hold that Ex. P-8, dying

declaration should have been the outcome of tutoring the deceased. In such view of this matter, following the decision of the Supreme Court, this

Court is of the view that merely because Ex. P-8 was recorded by a Judicial Magistrate, it need not be given much importance while the other

attending circumstances of the case are being considered.

The learned counsel for the appellant in support of his contention placed much reliance upon a Division Bench decision of this Court reported

in 2004 (1) MWN (Cr) 21 (DB) (Packiam v. State, Rep. by the Inspector of Police, Oomachikulam P. S., Madurai District) wherein the Hon''ble

Judges have ruled that dying declaration recorded by Judicial Magistrate by itself would not be a proof of truthfulness to earn acceptability it has to

pass the test of scrutiny of Court and there is no initial presumption that dying declaration contains only truth and that to form the basis of

conviction it must be free from any kind of doubt or infirmity and must inspire full confidence of the Court. In this case, various Supreme Court

decisions on this point have been cited and followed. The following are the relevant portions containing the operative portions of the decisions of

the Apex Court.

(ii) In Kanchy Komuramma v. State of A. P. the Supreme Court pointed out that even a dying declaration recorded by the Judicial Magistrate has

to pass the test of scrutiny of the Court. To quote the exact words.

.......That the dying declaration has been recorded by a Judicial Magistrate, by itself is not a proof of truthfulness of the dying declaration, which in

order to earn acceptability has still to pass the test of scrutiny of the Court.

(iii) In a subsequent ruling reported in Dandu Lakshmi Reddy Vs. State of A.P., Justice K.T. Thomas pointed out that there can be no initial

presumption that the dying declaration contains only truth. We deem it necessary to quote the exact wordings, which reads thus,

There can be a presumption that the testimony of a competent witness given on oath is true, as the opposite party can use the weapon of cross-

examination, inter alia, for rebutting the presumption. But a dying declaration is not a deposition in Court. It is neither made on oath nor in the

presence of an accused. Its credence cannot be tested by cross-examination. Those inherent weaknesses attached to a dying declaration would

not justify any initial presumption to be drawn that the dying declaration contains only the truth.

(iv) The next ruling that can be usefully referred to is the one reported in Uka Ram Vs. State of Rajasthan, wherein the Supreme Court pointed out

that unless the dying declaration is such that it inspires full confidence of the Court in its correctness, a conviction cannot be based on that. The

Supreme Court observed thus,

...The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a man''s mind the same feeling as

that of a conscientious and virtuous man under oath-nemo noriturus praesumitur mentire. Such statements are admitted, upon consideration that

their declarations are made in extremity, when the maker is at the point of death and when every hope of this world is gone, when every motive to

falsehood is silenced and the mind induced by the most powerful consideration to speak the truth. The principle on which the dying declarations are

admitted in evidence is based upon the legal maximum nemo moriturus praesumitur mentire i.e. a man will not meet his Maker with a lie in his

mouth. It has always to be kept in mind that though a dying declaration is entitled great weight, yet it is worthwhile to note that as the maker of the

statement is not subjected to cross-examination, it is essential for the Court to insist that the dying declaration should be of such nature as to inspire

full confidence of the Court in its correctness. The Court is obliged to rule out the possibility of the statement being the result of either tutoring,

prompting or vindictive or a product of imagination. Before relying upon a dying declaration, the Court should be satisfied that the deceased was in

a fit state of mind to make the statement. Once the Court is satisfied that the dying declaration was true, voluntary and not influenced by any

extraneous consideration, it can base its conviction without any further corroboration as a rule requiring corroboration is not a rule of law but only a

rule of prudence.

(Emphasis supplied)

He also garnered support from a Division Bench decision of the Rajasthan High Court, reported in 2005 (1) Acq 21 (Madan Lal v. State of

Rajasthan) wherein it is observed as follows:

It is trite that the truthfulness, reliability and the acceptability of the dying declaration has to be adjudged in the light of attendant facts and

circumstances of each case and it has to be subjected to strict scrutiny. The Court must take care of for examining the dying declaration that it is

not the result of coaching, tutoring or prompting of some body. In Mohanlal Gangaram Gehani Vs. State of Maharashtra, their Lordships of the

Supreme Court held that where there are more than one statements in the nature of dying declaration, one firm in turn must be preferred.

The Court could not lay any suspicion over the consciousness of the injured at the time of recording dying declaration, Ex. P-9, because Dr.

Nisha in Sri Ramachandra Medical College Hospital has witnessed that the patient was conscious at the time of giving the statement: The close

relatives have supplied information in Exs. P-16 and P-17 to the effect that it was accidental stove blast. There is no room to suspect such

informations given by close relatives of the deceased.

In view of the above said circumstances, this Court is of the considered view that the dying declaration, Ex. P-8 is a result of tutoring and that it

does not bear truth.

The learned counsel for the appellants also contends that the charge would not attract the statutory requirements of Section 304B, IPC since

there is no immediate cause for the occurrence, that is to say, that it is not shown that soon before her death, she was subjected to cruelty or

harassment by any relative of her husband. In this connection, the evidence of PWs-1 and 3, the parents of the deceased have to be scrutinised.

PW-1, the father of the deceased has not stated in his evidence that there was a demand of television, tape recorder and two sovereigns of gold

jewels by the appellants. He says that his daughter came to his house two months prior to her death and told him that she would not be allowed to

live peacefully. PW-3, the mother of the deceased has not stated that there was immediate cause for the occurrence. In this regard, it has to be

observed that there was no immediate cause for the occurrence.

Another lapse found on the side of the prosecution is that the inquest was not taken up by the RDO as per the procedure. PW-2 who is

Tahsildar took up an inquest and proceeded. It is not in accordance with law.

The learned Additional Public Prosecutor would say that the purpose of conducting inquest by an Executive Magistrate is for ascertaining the

truth in the case of death and even if a Tahsildar has taken up the job, it would not be fatal to the prosecution and that his report may not have any

evidentiary value. But in the view of this Court, failure on the part of the concerned RDO to take up the inquest is a serious lapse and the said

failure has resulted the true affairs of the case to be screened. The put it otherwise, it can be stated that had a RDO taken up the inquest, there

might have been true affairs to come on record. It is held that the Tahsildar is not a competent or prescribed authority to hold inquest in such cases

and the inquest proceedings are vitiated in this regard.

This Court has gone through the materials and evidence available in this case and the submissions of both sides in the light of the principles laid

down by the Hon''ble Supreme Court in the matter of appreciation of dying declaration. This Court is of the view that Ex. P-8 has not inspired

confidence of this Court and no conviction can be based on Ex. P-8. In such view of this matter, the conviction and sentence passed against the

appellants are liable to be set aside and they are accordingly set aside. The benefit of doubts which have arisen in this case have to be extended to

the appellants. The prosecution has failed to bring home the guilt of the appellants beyond all reasonable doubt. This point is answered accordingly.

In the result, the Criminal Appeal is allowed acquitting the appellants of all the charges framed against them. Fine amount, if any paid by the

appellants shall be refunded to them and the bail bonds, if any, executed by them shall stand discharged.