Mani vs State by Inspector of Police

M. Karpagavinayagam, J.—Mani, the appellant, was convicted for the offence u/s 302 I.P.C. for having caused the death of his wife

Kumari alias Jayakumari and sentenced to undergo life imprisonment and to pay a fine of Rs. 5,000/-, in default to undergo Rigorous Imprisonment

for one year. Challenging the same, this appeal has been filed.

The facts that are relevant for the disposal of the appeal are as follows:

(a) The deceased Kumari alias Jayakumari is the wife of the accused Mani. They got married two years prior to the occurrence. They were

residing at Pallikuppam Village. Despite lapse of two years, no child was born to them because of which they used to quarrel with each other.

(b) On 28.7.1998 at 1.00 p.m. the accused came to the house and the deceased asked him to take lunch for which the accused refused. When the

deceased insisted him to take food, he scolded her and beat her with hands and legs and thereafter, he went away. As she was unable to bear the

pain due to his beating, she was lying down inside the house. A few hours later, i.e., around 3.00 p.m., the accused came back to the house and on

seeing the deceased lying down, he poured kerosene on her and set fire. When she raised alarm, neighbours gathered there. On seeing the crowd,

the accused pretended as if he is making an attempt to put off the fire. In that process, he also sustained injuries on his left hand and legs.

(c) P.W.3 - Murugesan, P.W.6 - Poongavanam, sister of the accused and P.W.7 - Chinnaponnu immediately made arrangements to take both to

the Gudiyatham Government Hospital in an auto rickshaw. P.W.9 - Dr. Thirugnanam, attached to Gudiyatham Government Hospital, admitted the

deceased and gave treatment. When the Doctor enquired the deceased, she told him that while she was cooking, a lamp fell down on the ground

and got broken because of which, she sustained injuries. He issued Ex.P.3 - Accident Register. At 7.15 p.m., P.W.9 - Doctor examined the

accused and he told him that when he attempted to put off the fire on his wife, he sustained injuries and Ex.P.4 is the Accident Register.

Immediately thereafter, P.W.9 sent Ex.P.5 intimation to the police at 7.00 p.m. about the admission of the deceased. He also sent Ex.P.6

intimation to the Judicial Magistrate, Gudiyatham, to visit the hospital for recording dying declaration of the deceased.

(d) On receipt of the same at 3.00 p.m. on 29.7.1998, P.W.17 Sub-Inspector of Police came to the hospital at about 5.30 p.m. and recorded the

complaint of the deceased and Ex.P.14 is the complaint. Thereafter, he went back to the Station and registered a case in Crime No. 364/1998 u/s

307 I.P.C. at 7.00 p.m. and Ex.P.15 is the First Information Report.

(e) On receipt of the intimation Ex.P.6, the Judicial Magistrate, Gudiyatham, went to the hospital on 30.7.1998 at 10.40 a.m. and recorded the

dying declaration of the deceased after observing all formalities during which time P.W.18 - Dr.K. Anbarasi was also present. Ex.P.16 is the dying

declaration attested by the Doctor.

(f) In the meantime, on 29.7.1998 at 7.15 p.m., P.W.20 - Dhanaraj, Inspector of Police, took up investigation and at 9.30 p.m. he went to the

hospital and recorded the statements of the deceased as well as the accused and other witnesses.

(g) On 30.7.1998 at 7.00 p.m., P.W.20 went to the place of occurrence and prepared observation mahazar - Ex.P.1 and rough sketch - Ex.P.17

in the presence of witnesses and recovered M.O.1 - Kerosene lamp, M.O.2 - lamp, M.O.3 - Plastic Kerosene Can and other material objects.

(h) On 01.8.1998 at 2.30 a.m., P.W.20 received the death intimation of the deceased from the hospital. The deceased died at 7.45 p.m. on

31.7.1998. P.W.20 went to the hospital and conducted inquest over the body of the deceased between 7.00 a.m. and 10.30 a.m. and Ex.P.19 is

the inquest report. Then, he sent the body for postmortem.

(i) P.W.11 - Dr. Karthikeyan conducted postmortem on the body of the deceased at 12.00 p.m. on 01.8.1998 and Ex.P.9 is the Postmortem

Certificate wherein the Doctor opined that the deceased would appear to have died of Septicemia on the basis of which the offence was altered

into one u/s 302 IPC.

(j) On the very same day, i.e., on 01.8.1998, P.W.20 arrested the accused and sent him for remand. He continued the investigation. The material

objects were sent for chemical examination. After completion of the investigation, he filed the final report against the accused for the offence u/s

302 I.P.C.

(k) During the course of trial, on the side of prosecution, P.Ws.1 to 20 were examined; Exs.P-1 to P-19 were filed and M.Os.1 to 11 were

marked.

(l) The accused denied having participated in the occurrence, while he was questioned u/s 313 of Cr.P.C. and he pleaded innocence.

(m) The trial Court, relying upon the evidence adduced by the prosecution, convicted the accused for the offence u/s 302 IPC and sentenced him

as aforesaid. Aggrieved by the said conviction and sentence, the accused has filed this appeal.

We have heard Mr. R. Margabandhu, learned Counsel for the appellant, as well as Mr. V.R. Balasubramanian, Government Advocate for the

State. We have also gone through the entire records.

Admittedly, there is no eye witness. The entire case rests upon the oral dying declaration and dying declaration recorded by the Police Officer

and the Magistrate respectively. With regard to the oral dying declaration, we have got the evidence of P.W.1 - Gnanasoundari, P.W.2 -

Venkatesan and P.W.5 - Anjali. With regard to the dying declaration, we have got the evidence of P.W.9 - Dr.Thirugnanam. The second dying

declaration is Ex.P.14 recorded by P.W.17 Sub-Inspector of Police. The third dying declaration is Ex.P.16 recorded by the Judicial Magistrate,

Gudiyatham, in the presence of P.W.18 - Dr. Anbarasi.

On going through these materials with reference to the oral dying declaration and dying declaration, we feel that the evidence adduced for

proving the case is not reliable. The first statement given by the deceased is to P.W.9 - Doctor, who issued Ex.P.3 - Accident Register. When she

was taken to hospital, she was examined by P.W.9 - Dr.Thirugnanam. She had told him that she sustained injuries while she was cooking because

of the fact that the lamp got broken and fell down on her. This cannot be true because in the observation mahazar Ex.P.1, which was prepared by

P.W.20 on 30.7.1998, there is no symptom for cooking and cooking materials were not available and the lamp was not found broken. Further, the

oral dying declaration as referred to by P.W.5 - Anjali is that the deceased had told her that the accused tied her hands and legs and then poured

kerosene over her and set fire, which is completely contradictory to the oral dying declaration given by P.W.1 - Gnanasoundari and P.W.2 -

Venkatesan, parents of the deceased.

With regard to the oral dying declaration as referred to by P.W.1, P.W.2 and P.W.5, we are to state that the deceased told them about the

alleged occurrence immediately after her admission in hospital on 28.7.1998 itself. According to P.W.9, he sent intimation Ex.P.5 to Police

immediately. When P.W.1 and P.W.2 enquired the deceased as to what happened, she told them that she sustained injuries at the hands of the

accused, who set fire to her after pouring kerosene. If such a statement is true, the immediate conduct of P.W.1 and P.W.2, who are the parents

of the deceased, would be anxious to give complaint to the Police. Admittedly, they had not done so. On the other hand, the Police Officer

P.W.17 went to the hospital on 29.7.1998 and recorded statement Ex.P.14 from the deceased at 15.30 p.m. According to the witnesses of the

relative, the witnesses were in the hospital throughout. P.W.17 would admit that till he comes to the Police Station, nobody either the deceased or

the relatives of the deceased came forward to give complaint with reference to the occurrence. On the other hand, P.W.17 would admit that he

came to the hospital only on receipt of hospital intimation Ex.P.5 sent by P.W.9 Doctor. Further, the oral dying declaration as referred to by

P.W.5 stating that the accused tied her hands and legs and poured kerosene has not been sufficiently corroborated by any other witness.

Therefore, the entire oral dying declaration has to be discarded.

We now come to Ex.P.14 statement recorded by P.W.17. On perusal, it is clear that a detailed statement has been given by the deceased.

Ex.P.14, in our view, is doubtful because on receipt of intimation Ex.P.5 from the Doctor P.W.9, P.W.17 went to the hospital and recorded the

complaint Ex.P.14 from the deceased. In the cross-examination, he admitted that before recording statement, he verified Ex.P.3 and Ex.P.4 and

found that the burn injuries sustained by the deceased while cooking were entered in the Accident Register and since he did not believe the said

contents, he chose to record statement from the deceased. He also admitted that he sent requisition to the Judicial Magistrate to record the dying

declaration. That means, he suspected that the injuries sustained by the deceased were not due to accident, but due to some other reasons. If that

was so, P.W.17 would have examined the deceased in the presence of a Doctor, who is available in the hospital. There is no reason as to why

such a statement had been obtained without the presence of the Doctor. Further, in Ex.P.14, he obtained the signature of the deceased. There is

no reason as to how Ex.P.16, the next document recorded by the Judicial Magistrate on 30.7.1998, would contain the left thumb impression of the

deceased. Admittedly, there are injuries on the hands of the deceased. When the deceased was not able to put signature and put thumb impression

in Ex.P.16, it is not understandable as to how she was able to put signature in Ex.P.14, the statement recorded on the previous day.

Further, despite the intimation having been received on 28.7.1998 itself by P.W.17, no attempt had been taken to record statement from the

deceased or from the accused, who sustained injuries and was admitted in the hospital. Curiously, P.W.15 Head Constable, attached to

Gudiyatham Town Police Station, deposed before the Court that he went to the hospital 8.00 p.m. on 28.7.1998 during which time both the

accused and the deceased were found unconscious. The statement of P.W.15 cannot be true because the Doctor deposed that both were

conscious throughout. P.W.17 went to the hospital on 29.7.1998 at 5.30 p.m. Even though intimation Ex.P.5 had been received by the Police on

the night of 28.7.1998 itself, no reason is forthcoming as to why P.W.17 went to the hospital only at 5.30 p.m. on 29.7.1998 and the delay has not

been properly explained. However, the fact remains that the relative witnesses were in the hospital throughout. Therefore, we are unable to give

any importance to Ex.P.14.

The next document is Ex.P.16 - dying declaration recorded on 30.7.1998 at 11.20 a.m. by the Judicial Magistrate, Gudiyatham, which was

attested by P.W.18 - Doctor. The Judicial Magistrate also certified that the deceased was in a fit condition to give a statement and after recording

statement, signature was affixed by him. Since the said Judicial Magistrate was no more, the document Ex.P.16 was marked through P.W.18. Of

course, Ex.P.16 is not a detailed statement. It contains only very short form of the statement. According to the statement, the accused came to the

house, poured kerosene over her and set fire. But we should not forget the fact that all the witnesses, viz., P.W.1, P.W.2 and P.W.5, were there in

the hospital throughout. As a matter of fact, all these witnesses would admit that even though the accused was also admitted in the hospital with

burn injuries, they did not choose to go to meet him to enquire about him.

In that context, it is to be noticed that the possibility of tutoring the deceased before dying declaration against the accused is given cannot be

ruled out. Admittedly, as indicated above, the Judicial Magistrate, who recorded the dying declaration has not been examined. Of course, for that

reason, we cannot ignore Ex.P.16, especially when the contents of the document have been proved by P.W.18 lady Doctor. But, it is clear from

the fact that P.W.1 and P.W.2 were there for all the time with the deceased to take care of her till her death and they would have advised the

deceased to give statement in such a way to implicate the accused.

One more important thing to be noticed is that the fact that she had given earlier statement Ex.P.3 that burn injuries were caused due to

accident was not denied even by the prosecution. P.W.9 doctor also stated that she had given such a statement. When she had given such a

statement, there is no reason as to why she has to give a different statement to P.W.17, the Police Officer at about 5.30 p.m. on 29.7.1998 and

Ex.P.16 statement to the Judicial Magistrate at about 11.20 a.m. on 30.7.1998. Further, no explanation has been given by the deceased either in

Ex.P.14 or in Ex.P.16 as to what made her to give such a statement to the Doctor that the injuries were due to the accident.

Taking into consideration all the circumstances, we are of the view that the materials placed by the prosecution, which are not consistent,

would not inspire confidence and consequently, we are constrained to hold that the prosecution has failed to prove its case as against the accused

beyond reasonable doubt and, therefore, he is to be given benefit of doubt. As such, the accused is liable to be acquitted.

In fine, the conviction and sentence imposed u/s 302 of I.P.C. upon the appellant / accused are set aside and the appeal is allowed. Fine

amount, if paid, shall be refunded to the appellant. The bail bond executed by the appellant shall stand cancelled.