Karuppasamy vs State

R. Balasubramnian, J.—The Appellant in this appeal is the accused in S.C. No. 328/91 on the file of the Court of Sessions at Tirunelveli. He

was tried for the offence punishable u/s 302 I.P.C. and on being found guilty, he was sentenced to undergo life imprisonment. Therefore he is

before this Court in this appeal.

The case of the prosecution, in short, is as follows:

a) Kamalam is the deceased in this case. She is the daughter of P.W.2. P.Ws.1,5 and 6 are the sons of P.W.2 and incidentally, they are the

brothers of Kamalam. The accused is the husband of Kamalam. Even prior to their marriage, on account of their acquaintance, Kamalam

conceived. Thereafter, their marriage took place. The family of the accused wanted a sum of Rs. 4,000/- to be given at the time of their marriage,

which was accordingly provided by P.W.1. Six months after their marriage, Kamalam gave birth to a child. The accused had developed illicit

intimacy with a lady called Parvathi. Since Kamalam objected to it, there was quarrel between the accused and Kamalam often. Around 10.00

a.m. on 12.09.90., P.W.2 was in her house. She came to know that her daughter was in flames. Immediately, P.W.2 went to the house of

Kamalam. At that time, P.W.2 found some burn injuries above the hip of her daughter. Kamalam was made to rest on the pial of her house.

P.Ws.1 and 5 are masons by profession. On that day, they were working in the house of the brother-in-law of the accused. P.W.2 sent word to

them about the incident. Immediately, P.Ws. 1, 5, 6 and another went to the house of Kamalam, where they found Kamalam lying on the pial with

burn injuries. The accused was also by her side at that time. Kamalam was enquired as to how she came to sustain the burn injuries, for which she

replied that, ""she objected to her husbands relationship with Parvathi; the accused asserted that he would continue to have such relationship.

Whenever she objected to her husband''s relationship with Parvathi, the accused used to threaten her stating that, he would pour kerosene and set

fire to her; she told her husband that she is prepared even to die for the sake of her husband severing his relationship with Parvathi; immediately the

accused picked up a kerosenetin; poured kerosene on her head and set fire to her"". P.Ws. 3 and 4 had seen the occurrence. A taxi was arranged

for and in that taxi, Kamalam was transported to the Government Hospital at Palayamkottai. P.Ws. l, 2 and others accompanied Kamalam to the

hospital.

b) P.W.8 is the Medical Officer in the Government Hospital at Tirunelveli. At 12.50 p.m. on 12.09.90, Kamalam was brought before him and he

was informed that she had come to sustain the burn injuries at the hands of her husband, by he pouring kerosene and setting fire to her. Kamalam

was admitted as an inpatient in the hospital. P.W.8 found extensive burn injuries on the person to Kamalam. He sent Ex.P.4 to the police. Ex.P.5,

is the intimation sent by him to the Magistrate to record the dying declaration of Kamalam. P.W.11 is the Trainee Magistrate, who reached the said

hospital at 2.00 p.m. on that day. Doctor Kanchana was by the side of Kamalam at that time. She certified that Kamalam was conscious and

oriented to give a statement. He examined Kamalam and recorded her statement. Ex.P.11 is the dying declaration of Kamalam. In Ex.P.11,

P.W.12, on receipt of Ex.P.4/intimation, went to the hospital; examined Kamalam and recorded a statement from her. The statement so recorded

from Kamalam was read over to her and after she affirming the same, her left thumb impression was obtained in it. Ex.P.l is that complaint.

Kamalam had put her left thumb impression. P.W.12, over telephone, sent an intimation regarding the crime to the Investigating Police Station.

Accordingly a Head Constable from the Investigating Police Station came to the police out-post; collected Exs.P.1 and P.4 and handed over the

same to P.W.13.

c) P.W.15 is the Sub-Inspector of Police. He collected Exs,P.1 and P.4 from P.W.13 and registered it in Crime No. 400/90 for the offence

punishable u/s 307 I.P.C. He sent the material records to the court as well as to the higher officials. Ex.P.12 is the F.I.R. He handed over the

material records to the Inspector of Police personally. Despite treatment given to Kamalam, she died at about 7.50 p.m. on 15.09.90. P.W.9 is

the Medical Officer, who sent Ex.P.6 to the police out-post at Tirunelveli. Ex.P.7 is the case sheet. On receipt of Ex.P.6, the police out-post at

Tirunelveli, passed on that message to the Investigating Police Station over telephone. Ex.P.13 is the death intimation, which was handed over at

the Investigating Police Station. At 9.00 p.m. on 12.09.90, after receiving a copy of Ex.P.12, P.W.17 went to the scene; at 10.00 p.m. on that

day, in the presence of P.W.7 and another he prepared Ex.P.2/obser-vation mahazar and Ex.P.17/plan. At 10.30 p.m. on that day, from the scene

of occurrence. P.W.17 recovered a plastic can containing kerosene; a match box and a partly burnt turkey towel (M. Os. 1 to 3) under Ex.P3

attested by witnesses. P.W.17 examined P.Ws. 1, 2 and 7 and recorded their statements. Further witnesses were examined by him on 13.09.90

and their statements were recorded. On receipt of the death intimation at 7.50 p.m. on 15.09.90 from P.W.15, P.W.17 altered the section of

offence into one u/s 302 I.P.C. and prepared the altered printed F.I.R. Ex.P.18 is the altered F.I.R. It was sent to the court as well as to the higher

officials. As death had taken place within 1-1/2 years after the marriage of the accused with the deceased/Kamalam, a copy of the F.I.R. was sent

to the Revenue Divisional Officer having jurisdiction. P.W.16 is the Revenue Divisional Officer, who on receipt of the copy of the F.I.R. went to

the hospital and conducted inquest over the dead body of the deceased between 11.00 a.m. and 1.00 p.m. on 16.09.90. Ex.P.14 is the inquest

report. During inquest, P.W.16 examined P.Ws. 1, 5, 6 and another and recorded their statements. P.W.17 arrested the accused on 17.09.90.

d) P.W.10 is the Assistant Professor of Medicine in the Medical College Hospital at Tirunelveli. On receipt of Ex.P.8/requisition for conducting

post mortem as well as the dead body, P.W.10 commenced post mortem at 3.45 p.m. on 17.09.90. During post mortem, he found the symptoms

as noticed in Ex.P.9/post mortem certificate. (Since Ex.P.9 is in English, we are not re-stating the contents found therein in order to save time). The

Doctor is of the opinion that the deceased would appear to have died to burn injuries. After post mortem, P.W.14 recovered M.O.4 from the

body of the deceased and handed over the same at the police station. The dead body was handed over to the relatives. When P.W.17 arrested

the accused on 17.09.90, the accused gave a voluntary confession statement. On 04.01.91, P.W.17 examined P.Ws. 1 to 6 and recorded their

statements. On 13.01.91, he examined P.W.9 and the Head Constable and the Head Constable and recorded their statements. He examined

P.Ws. 8 and 14 on 23.01.91 and recorded their statements. After completing the investigation. P.W.17 filed the final report against the accused in

court on 15.02.91 for the offence punishable u/s 302 I.P.C. When the accused was questioned u/s 313 of the Code of Criminal Procedure on the

basis of the incriminating materials made available against him, he denied each and every circumstance put up against him as false and contrary to

facts. He denied the evidence of the prosecution witnesses as false. He would state that he was not in the house when the occurrence took place;

when he was returning home from work, he found his wife with burn injuries; immediately he rushed her to the Government Hospital; the

Investigating Agency is suppressing the truth and the case had been foisted upon him. No witnesses were examined on his side.

Heard the learned Counsel on either side. P.W.10 is the Doctor, who did post mortem on the body of the deceased. Ex.P.9 is the post mortem

certificate. The medical evidence establishes, beyond doubt that the deceased died due to homicidal violence. The deceased is the wife of the

accused. The accused admitted that relationship. P.W.2 is the mother of the deceased. P.Ws.1, 5 and 6 are the brothers of the deceased and sons

of P.W.2. Kamalam was found to be in flames around 10.00 a.m. on 12.09.90 in her house. We have two sets of evidence, on which the

prosecution rely upon. One such set consists of the oral evidence of P.Ws.1, 2, 4, 5 and 6. Admittedly none of them are eye witnesses to the

occurrence. They have been examined to prove what Kamalam declared, while she was alive and fighting for her life, about her cause of death. To

P.W.1 the deceased is stated to have given a statement, in and by which, according to P.W.1. Kamalam had implicated her husband in the crime.

The next set of evidence available, is the evidence of P.W.11/Trainee Magistrate, who recorded the dying declaration/Ex.P.11 of the deceased in

this case. If these two sets of evidences, either jointly or severally, establish the guilt of the accused, then there cannot be any difficulty in upholding

the conviction rendered by the learned sessions Judge.

In the context of the above, we perused the oral evidence of P.W.11/Trainee Magistrate, who recorded the dying declaration of the deceased,

to find out as to whether Ex.P-11 is free from doubt. In the case reported in Paparambaka Rosamma v. State of Andhra Pradesh (1999 S.C.C.

Crl. 1361) it has been held by the Hon''ble Supreme Court of India that there are two aspects of a person to be taken into account, when his dying

declaration is sought to be recorded namely, one is the conscious state of mind and the other is the fit condition to give a statement. It has been

further held in that judgment that medically both are different and unless both the requirements are established, the court cannot safely act upon the

dying declaration brought on record by the Investigating Agency. P.W.11/Trainee Magistrate, was also the Thahsildar during the relevant time. On

he receiving Ex.P5/requisition from the Hospital Authorities to record the dying declaration of the deceased, he went to the hospital, at that time he

found Kamalam admitted as an inpatient in the said hospital and Doctor Kanchana was by the side of the patient at that time. His evidence shows

that Doctor Kanchana certified that Kamalam was conscious, oriented and was in a fit condition to give the statement. Doctor Kanchana was

present by the side of P.W.11 throughout. It appears from the evidence of P.W.11 that, he was totally carried away by the opinion of Doctor

Kanchana. His evidence in chief does not show that he enquired Kamalam to find out as to whether she was conscious, oriented and was in a fit

condition to give the statement. At the risk of repetition, we would like to state that P.W.ll''s subjective satisfaction about the condition of

Kamalam, was solely on the basis of the opinion of Doctor Kanchana. Doctor Kanchana had not been examined in this case. Ex.P.11 is the dying

declaration. At the foot of the said dying declaration. Doctor Kanchana had given her opinion as follows:

Certified that the patient Smt. Kamalam was conscious at the time of taking the dying declaration and taken in my presence.

Though this certificate reflects the conscious state of mind of Kamalam, yet it does not reflect her fit condition to give a statement. Whatever it is, in

the absence of the evidence of Doctor Kanchana on record, it cannot be said that the certificate given by her, as referred to above, at the foot of

Ex.P.11 would be substantive in nature to be taken into account. The Magistrate himself had made an endorsement at the foot of Ex.P.11 which is

as follows:

The patient Tmt.K. Kamalam is in a conscious state and recorded in the presence of Dr. Tmt. Kanchana, Civil Assistant Surgeon.

Therefore looking from any angle, we have no doubt in our mind that Ex.P11 cannot be acted upon as a safe piece of evidence, since neither

conscious state of mind of Kamalam nor her fit condition to give a statement, are brought out legally on record.

Then we applied our mind to the evidence of the mother and brothers of the deceased. It is not in dispute that it is P.W.2/mother of the

deceased, who first reached the house, where Kamalam was found in flames. She would state in her evidence that when she reached the house,

she found her daughter unconscious and lying on the pial of her/Kamalam house. She would also state that right from the day when she was

admitted in the hospital, till she died, she was not in a position to talk and and she did not talk at all in the hospital. She would further affirm at the

end of her cross examination that she did not know how her daughter caught fire and that she gave evidence only because the police told her. In

the evidence of P.W.2, there is a conscious omission about Kamalam giving any oral dying declaration to anybody. P.W.3 is the person, who had

arranged for the taxi, with the help of one John. He is treated as hostile. But however his evidence, recorded till he was treated as hostile, shows

that Kamalam did not tell him anything. P.W.4 is an independent witness and he is a resident of the same street, in which the accused and the

deceased were living. His evidence shows that, Kamalam came to the road from her house in flames and her mother-in- law also came running

with her. He would further state in his evidence that, with the help of P.W.3 and others, he put out the flames. In his cross examination, this witness

would state that the condition of Kamalam was precarious and she did not talk to him. He would further state that he did not know whether

Kamalam talked to anybody else. P.W.5 is the elder brother of the deceased. He would state in his evidence that, on he reaching the house,

Kamalam did not speak to him at all. In his evidence in cross, he would state that because of the burn injuries, Kamalam was unconscious and the

accused as well as the mother-in-law of the deceased, were there. P.W.6 is the other brother of the deceased. He would state that, he reached the

house of Kamalam, on he being informed by his mother that the deceased was in flames. He is also totally silent about Kamalam giving any oral

dying declaration to anybody. In other words, we reiterate that, from the evidence of P.Ws.2, 3, 4, 5 and 6, we find that Kamalam had not given

any dying declaration at all to anyone of them. Their evidence also would show that the condition of Kamalam was not good and in fact, her

condition was precarious. As against the evidence of the above mentioned witnesses, who do not speak about any oral dying declaration given by

the deceased, we have the solitary evidence of P.W.1 who is also one of the brothers of the deceased. He would state that, he reached the scene,

after he being informed by his mother that Kamalam was in flames. He would deny the suggestion that Kamalam was not in a position to talk. But

however, he would add that, to certain extent, she was able to speak.

Then we have the evidence of P.W.8/Medical Officer, who first saw Kamalam around 12.50 p.m. on 12.09.90. His evidence shows that the

Blood Pressure reading of Kamalam was 80/50. In his evidence in cross, he would state that, when he examined Kamalam, her condition was

precarious and the level of consciousness would depend the shock to which the injured/Kamalam was exposed. P.W.9/Medical Officer in the

Government Medical College Hospital at Tirunelveli, would admit in his evidence that on 12.09.90, the accused was informed that the condition of

his wife was precarious and his signature was taken in proof of the same. In the face of such voluminous evidence, through the mouth of P.Ws.2 to

6 about the condition of Kamalam at the hospital and in the face of the evidence of the Doctor that the Blood Pressure reading of Kamalam was

80/50 at that time and the oral evidence of P.W.9, the other Doctor, we are not in a position to attach much importance to the oral evidence of

P.W.8 that Kamalam told him, when she was examined, that her husband set fire to her. Ex.P.4 is the accident register. It shows that the accused

is responsible for the incident. But for the reasons as referred to earlier, we are not inclined to act upon the oral evidence of P.W.8 and Ex.P-4 to

conclude that Kamalam was conscious and in a fit condition to give any statement to the Doctor. In any event, the evidence of the Doctor/P.W.8

coupled with Ex.P.4 is not free from doubt, when the same is read in the context of the oral evidence of P.Ws.2 to 6 and P.W.9 about which, we

have already referred to earlier. Therefore we have only the oral evidence of P.W.1 regarding the oral dying declaration stated to have been given

by Kamalam to him. In view of the fact that the mother and other brothers of the deceased do not speak about any oral dying declaration given by

the deceased, we are of the considered opinion that it would be too risky to believe the evidence of P.W.1 alone, to hold that Kamalam had given

a oral dying declaration to him. The conduct of the accused assumes considerable importance in this case. Ex.P.12 is the F.I.R. It discloses that the

husband/accused alone brought the intimation from the hospital to the police. P.W.1 would state that the accused was by the side of his wife at the

time when she was seen with him injuries. Besides the accused, his mother was also there. P.W.2 would state that the accused was in the house

when she reached there and found her daughter in flames. Her evidence also shows that the funeral obsequies of the deceased was performed by

the accused; the accused was throughout in the village and he was not arrested. P.W.4''s evidence is that, the accused took Kamalam'' to the

hospital along with his mother as well as P.Ws.1 and 2 in a taxi. P.W.5 would state that the accused, his mother and the villagers were in the

house, when Kamalam was lying with bum injuries. He would also state that Kamalam was accompanied by the accused, his mother, P.W.2 and

others, to the hospital. The accused, when questioned u/s 313 of the Code of Criminal Procedure, would state that, as he returned to the house

from his work place, he found his wife with burn injuries and therefore he immediately rushed her to the Government Hospital. The conduct of the

accused as referred to above, is a relevant factor, which can be taken into account by us to conclude in favour of the accused, especially when the

materials placed by the prosecution to hold the accused guilty, are far from convincing.

In the light of our discussion as referred to above, we have no doubt in our mind to hold that the case of the prosecution is not free from

suspicious circumstances and since there is no direct eye witness to the occurrence itself, it would be too risky to accept the case of the

prosecution, as projected by them, to convict the accused for the offence of murder. Under these circumstances, we are inclined to give the benefit

of such doubt to the accused and acquit him of the offence for which he was tried and convicted. Accordingly the judgment under challenge is set

aside and the appeal is allowed.