Mahalingam vs State

S. Nagamuthu, J.—The appellant is the sole accused in S.C. No.291 of 2010 on the file of the learned Principal Sessions Judge, Tuticorin. He stood charged for offences under Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002, and Section 302 IPC. By judgment dated 12.01.2012, the trial Court convicted him under both the charges and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for six months for offence under Section 302 IPC and to undergo rigorous imprisonment for six months for the offence under Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.

The case of the prosecution in brief is as follows:

The deceased in this case was one Vijaya. The accused is her husband. The accused and the deceased were residing in Periyasamy Nagar, Tuticorin. The marriage between them was solemnized before 11 years. They got two children. In due course of time, the accused developed the habit of drinking liquor and used to quarrel with the deceased. The deceased, however, managed to live with the accused. Some time before the occurrence, it is alleged that unable to bear the torture committed by the accused in drunken state, the deceased gave a complaint to the police. In the police station, during enquiry, they reached a compromise, in which, the accused assured to live with the deceased happily. Therefore, again they continued to live together as husband and wife.

2.1. While so, on 08.04.2010, at about 9 p.m., the deceased was at her home. The deceased came to the house in drunken state. He enquired with the deceased as to where the playing cards were kept. The deceased told that the playing cards had been given by her to the children in the neighbourhood. The accused became angry with the said act of the deceased. He shouted at her and scolded her in filthy language. Then, it is alleged that the accused directed her to pour kerosene on her body. The deceased did not respond immediately. After some time, he took the kerosene can and poured kerosene on her body and came to the ''Mutram'' of the house. The accused came there and by using a match, he set fire to her. The deceased sustained more than 80% of injuries. The accused ran away from the place of occurrence. On hearing the alarm raised by the deceased, P.W.5 one of the neighbours and others came to the place of occurrence. P.W.1 - the mother of the deceased, who was residing four houses away, also rushed. All of them extinguished the fire and then, by means of 108 ambulance, they took the deceased to the hospital.

2.2. P.W.6 - Dr. Rovino Victor examined the deceased on 08.04.2010 at 9.55 p.m., at Tuticorin Government Medical College Hospital. At that time, the deceased told her that at 9.00 p.m., when she was at her house, she poured kerosene on her body and thereafter, her husband set fire. She found extensive burn injuries on her body. She admitted her as inpatient in the hospital and gave intimation to the police. Ex.P5 is the Accident Register.

2.3. On receiving intimation from the hospital, P.W.12 the then Sub Inspector of Police attached to Tuticorin South Police Station rushed to the hospital. At 10.45 p.m., on 08.04.2010, she recorded the statement of P.W.1. P.W.1 attested the same. On returning to the police station, at 12.15 a.m., on 09.04.2010, he registered a case in Crime No.252 of 2010 under Section 307 IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002. Ex.P15 is the FIR. Then, he forwarded both the documents to Court and handed over the case diary to the Inspector of Police for investigation.

2.4. P.W.16 took up the case for investigation on 09.04.2010 at 1.30 a.m. He rushed to the place of occurrence and prepared an observation mahazar and a rough sketch in the presence of P.W.4 and another witness. He recovered the burnt materials from the place of occurrence under a mahazar in the presence of the same witnesses. Then, he went to the Tuticorin Government Hospital, examined the deceased and recorded her statement. He also recorded the statement of P.Ws.1 and 2.

2.5. On 10.04.2010, at 11.30 a.m., he arrested the accused near Kamaraj College Bus Stop at Thiruchendur, in the presence of P.W.10 and another witness. On such arrest, he gave a voluntary confession, in which, he disclosed the place, where he had hidden the plastic can measuring 5 litres. In pursuance of the said disclosure statement, he took the police and witnesses to the said place and produced the can, which was recovered under a mahazar. On returning to the police station, he forwarded the accused to the Court and handed over the material objects to the Court.

2.6. On 10.04.2010, at 11.30 p.m., the deceased died in the hospital succumbing to the injuries. On getting intimation regarding the same, at 1.30 a.m., on 11.04.2010, P.W.16 altered the case into one under Section 302 IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002. Ex.P19 is the alteration report. Then, on 11.04.2010 from 6 am on-wards, he conducted inquest on the body of the deceased and forwarded the body for post-mortem.

2.7. P.W.9 - Dr. Saravanan conducted autopsy on the body of the deceased on 11.04.2010 at 11.45 a.m., He found the following injuries.

"The following ante-mortem injuries were noted over the body:

Superficial burns seen all over the body except soles, lower abdomen, genitalia and front of left thigh. Singeing of hair noted in the scalp and axilla. Base of the wound red in colour. Pus material seen over the wound at places. Degloving of both hands noted."

Ex.P9 is the post-mortem Certificate. According to him, the deceased would appear to have died of complications of superficial burns.

2.8. Continuing the investigation, P.W.16 collected the medical records and examined the Doctors. He took up the case in Crime No. 950 of 2009 under Section 323 IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002, registered against the accused in the earlier occasion for investigation. He made a request to the Court to forward the material objects for chemical examination. Finally, he laid charge sheet against the accused on completing the investigation.

2.9. Based on the above materials, the trial Court framed charges as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 16 witnesses were examined, 20 documents and 5 material objects were marked.

Out of the said witnesses, P.W.1 is the mother of the deceased. She has stated about the motive and she has further stated that on the date of occurrence, on hearing the hue and cry, she rushed to the house of the deceased, where she found the accused setting fire to the deceased. She has spoken about the fact that she took the deceased to the hospital. P.W.2 is the nephew of P.W.1. He has stated that the marriage between the accused and the deceased was as a result of love affair. According to him, on 08.04.2010, at 9 p.m., he went in search of P.W.1 and since, he was told that P.W.1 had gone to the house of the deceased, he also went to the house, where he witnessed the entire occurrence. P.W.3 is the sister of the deceased. She has also stated that on the crucial date of occurrence at 9 p.m., when she was in her house, she heard the hue and cry of the deceased from the house of the deceased. Then, she went to the house of the deceased. She found the deceased pouring kerosene on her body and then, the accused setting fire to her. P.W.4 has spoken about the observation mahazar and rough sketch prepared and also the material objects recovered from the place of occurrence. P.W.5 is yet another neighbour of the deceased. He has stated that on hearing about the occurrence, he rushed to the place of occurrence and he took the deceased to the hospital along with P.W.1 in 108 Ambulance. P.W.6 - Dr. Rovino Victor has deposed that she admitted the deceased in the Government Hospital at Tuticorin. She has further stated that the deceased told her that while she was at her house, she poured kerosene to herself and then, the accused set fire. P.W.7 the learned Judicial Magistrate No.II, Tuticorin, who has stated that she rushed to the hospital on getting intimation and recorded the dying declaration of the deceased. She has stated that the deceased was fully conscious and she was in a fit mental state to make the dying declaration.

P.W.8 - Dr. Ramasamy has stated that the deceased died at 11.30 p.m. on 10.04.2010 and he gave death intimation to the police. According to him, the extent of the injuries found on the deceased was 85%. P.W.9 has spoken about the post-mortem conducted and the cause of death. According to him, the death was due to complications of superficial burn injuries. P.W.10 is the Village Administrative Officer, who has stated that the arrest of the accused and the consequential recovery of the material objects. P.W.11 the Head Clerk of the Magistrate Court has spoken about the fact that he forwarded the material objects for chemical examination on the orders of the learned Magistrate. P.W.12 the Sub Inspector of Police has spoken about the statement made by the deceased in the hospital and the case registered by him on the same. P.W.13 is the Head Constable, who has stated that he carried the dead body to the hospital for post-mortem. P.W.14 -Dr. Vasan, has stated that when P.W.7 the learned Magistrate came to the hospital, he examined the deceased and gave opinion that the deceased was in a fit state of mind to make a dying declaration. P.W.15 is yet another Constable, who has stated that he carried the FIR to the Court and P.W.16 has spoken about the investigation done.

When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witnesses nor to mark any documents. His defence was a total denial. Having considered all the above the trial Court convicted him under both the charges and accordingly, punished him. That is how, he is before this Court with this appeal.

We have heard the learned counsel for the appellant, the learned Additional Public Prosecutor for the respondent State and we have also perused the records carefully.

The learned counsel for the appellant would submit that P.Ws.1 to 3 would not have seen the occurrence and their presence itself is doubtful. He would further submit that the dying declarations, upon which, much reliance is made by the prosecution, cannot be believed, because these dying declarations were out of tutoring by P.Ws.1 to 3, who accompanied the deceased to the hospital. He would further submit that the deceased would not have been conscious to give the dying declaration, because she had sustained more than 85% of the injuries. He would further submit that according to P.W.9, the death was not due to direct injuries, but the complications of the injuries. Thus, the death was not caused by the accused, the learned counsel contended. Thus, according to the learned counsel, the prosecution has failed to prove the case against the accused. In the alternative, he would submit that the offence allegedly committed by the accused is punishable only under Section 304(ii) IPC.

The learned Additional Public Prosecutor would, however, oppose this appeal. According to him, P.Ws.1 to 3 were all residing just four houses away from the house of the deceased, where the occurrence had taken place. Their presence at the place of occurrence cannot be doubted. He would further submit that they had witnessed the occurrence. He would further add that at the earliest point of time, when the deceased was taken to the hospital, to P.W.6, the deceased had told that the accused only set fire to her. This is reiterated in the subsequent dying declarations as well. Thus, from these evidences, according to the learned Additional Public Prosecutor, the prosecution has proved the case beyond reasonable doubt. He would further submit that the act of the accused would squarely fall only under Section 302 IPC.

We have considered the above submissions.

The accused and the deceased were living together along with the children under a common roof. P.Ws.1 to 3 were residing four houses away from the said place. It is the case, according to the dying declarations that the accused came to the house of the deceased in a drunken state and he enquired with the deceased as to where was the playing cards kept. The deceased told him that she had given the same to the children in the neighbourhood. This resulted in a quarrel. Attracted by the said quarrel, it is stated that P.Ws.1 to 3 had rushed to the place of occurrence. It was only thereafter the actual occurrence had taken place. Therefore, the presence of P.Ws.1 to 3, who were attracted to the place of occurrence on hearing the quarrel, cannot be disbelieved.

Now, at the time of occurrence, it is stated that as a result of the quarrel, the deceased herself poured kerosene on her body, which is stated in all the dying declarations. The first dying declaration was the one, which was made by the deceased to P.W.6 Dr. Rovina Victor. Necessary entry has been made in the Accident Register, wherein, she had told that she herself poured kerosene on her body. The same is stated in Ex.P1 the complaint made by her to P.W.12. In the subsequent and final dying declaration made by the deceased to P.W.7, the learned Magistrate also she had stated so. P.Ws.1 to 3 have also stated that the deceased herself poured kerosene on her body. Thus, from these evidences, it has been clearly established that the deceased herself poured kerosene on her body. There are no reasons to reject this part of the evidence. In these three dying declarations as well as in the evidence of P.Ws.1 to 3, it was only thereafter the accused came to the place of occurrence from a different portion of the house and set fire to her. This was as a result of a quarrel. Though the learned counsel would submit that P.Ws.1 to 3 would not have seen this part of the occurrence, we do not find any force in the said argument. As we have already concluded that on hearing the quarrel, P.Ws.1 to 3 had already come to the scene of occurrence and since setting fire by the accused to the deceased was the last part of the occurrence, that part of the occurrence would have been witnessed by P.Ws.1 to 3.

The learned counsel for the appellant would submit that in all the three dying declarations, as prompted and tutored by P.Ws.1 to 3, the deceased had stated that the accused set fire to her. This argument is liable to be rejected, because, absolutely, there is no evidence even to infer that there would have been such prompting. At the earliest point of time as soon the deceased was taken to the hospital, she told the Doctor that she was set on fire only by the accused. Thus, from these evidences, the prosecution has clearly established that the deceased was set on fire only by the accused.

The learned counsel for the appellant would further submit that the deceased would not have been in a fit state of mind to make a dying declaration. We do not find any force at all in the said argument, because, P.W.14 - Dr. Vasan has stated that on examining the deceased, he found that she was fully conscious and fit to make statement. Apart from that P.W.7 had also examined the deceased by eliciting certain answers from her and based on the medical evidence also, she was satisfied that the deceased was in a fit state of mind to make a dying declaration. Thus, we have every reason to hold that the deceased was fully conscious and in a fit state of mind to make dying declaration. Therefore, the argument of the learned counsel for the appellant, disputing the same, is rejected.

P.W.10 - Dr. Saravanan has stated that the death was due to the complications due to the burn injuries. The learned counsel for the appellant would submit that the medical records pertaining to the treatment given to the deceased have not been produced. In our considered view, the said medical records are not at all necessary, when it is not disputed that the deceased had sustained 80% of the burn injuries. It is common knowledge that the death was so imminent. It is needless to point that the complications stated by P.W.10 were only due to the injuries. Thus, we have no reasons to accept the argument of the learned counsel for the appellant that the death was not due to the act of the accused and the act of the accused was not the direct cause for the death of the deceased. We hold that the death of the deceased was caused only by the accused.

Having come to the conclusion that the death was caused by the act of the accused, now, we have to decide as to what is the offence that the accused has committed by his act. It is in evidence that there was no premeditation on the part of the accused. The accused returned to the house in a drunken state. In a casual manner, he enquired the deceased as to what had happened to the playing cards. She answered that the playing cards had been given to the children in the neighbourhood. The accused quite naturally became angry and questioned the same. This resulted in a wordy quarrel. The quarrel would have last for a quite long time. Even before the actual occurrence had taken place, P.Ws.1 to 3, on hearing the quarrel came to the place of occurrence. Even after their arrival, the quarrel did not stop. The deceased herself took out a kerosene can and poured kerosene on her body. This was not at the instance of the accused. On seeing the same only, the accused set fire. These events would go to show that the accused would have been provoked by the words of the deceased as well as by the act of pouring kerosene on herself. It was only on account of the said provocation, which emanated from the deceased, having lost his self control, the accused had set fire to the deceased. This inference is irresistible, because, there is no other motive for the accused to set fire to the deceased. As we have already pointed out, the occurrence was not a premeditated one.

For these reasons, we hold that the act of the accused would squarely fall within the third limb of Section 300 IPC and in turn would fall within the ambit of the 1st exception to Section 300 IPC. Thus, the accused is liable to be punished for offence under Section 304(i) IPC alone and not under section 302 IPC. So far as the offence under Section 4 of Tamil Nadu Prohibition of Harassment of Women Act is concerned, the conviction and sentence is liable to be confirmed.

Now, turning to the quantum of punishment for the offence under Section 304(i) IPC, it is brought to our notice that the accused has got two children and a big family to look after. He is a poor man eking out his livelihood only by doing coolie work. The family members have got no other income. He has got no bad antecedents and after the occurrence also, he has not involved in any crime. There are lot of chances for his reformation.

As we have already pointed out, the occurrence was not a premeditated one and it has happened at the spur of the moment on account of the provocation made by the deceased, by which, the accused had lost his self control. Having regard to these mitigating as well as aggravating circumstances, by way of striking a balance between these two, we are of the view that sentencing the accused to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- for the offence under Section 304(i) IPC would meet the ends of justice.

In the result, the criminal appeal is allowed in part, in the following terms:

(i) The conviction and sentence imposed on the appellant under Section 302 IPC is set aside and instead, he is convicted under Section 304(i) IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- (Rupees one thousand only), in default, to undergo rigorous imprisonment for four weeks.

(ii) The conviction and sentence imposed on the appellant under Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 2002 is confirmed.

(iii) It is directed that the period of sentence already undergone by the accused shall be set off under Section 428 Cr.P.C.

(iv) The trial Court shall take steps to secure the accused/appellant to commit him in prison to serve out the remaining period of sentence.