Marimuthu vs State

N. Dhinakar, J.—The appellant, who hereinafter, will be referred to as ''the accused'' was tried before the learned Sessions Judge, for a

charge of murder. The allegation in the said charge is that at about 6.00 p.m. on 29.09.1987 he beat his wife Tamil Rani with stick as well as with

the broomstick and thereafter poured kerosene over her body and pushed her over a naked chimney lamp, as a result of which she sustained

injuries and died at about 3.50 p.m. on 05.10.1987 while she was undergoing treatment at the Government Medical College Hospital, Thanjavur.

To prove the above charges, the prosecution, before the trial Court, examined P.Ws. 1 to 16 and marked 16 exhibits as well as M.Os. l to 5.

The case of the prosecution, as could be discerned from the oral and documentary evidence, can be briefly summarized as follows:-

The deceased is the wife of the accused and sister of P.W.8. P.W.2 is the wife of P.W.8 and P.W.4 is their daughter. P.W.1 is the brother-in-law

of the accused and P.W.3 is the wife of one Indrajith, another elder brother of the deceased. The deceased, after her marriage with the accused,

was residing at Kabisthalam with her husband. Her parents and P.W.8. another brother and sisters were residing at Athur, Salem District. Few

days prior to the date of the incident, the deceased went to Athur to attend a marriage and after the marriage she returned to her matrimonial home

accompanied by P.Ws. 2 to 4 and one Nithya, another daughter of P.Ws. 2 and 8. When she was at Athur to attend the marriage, the deceased

informed her parents that her husband is asking for money to buy a house and the parents of the deceased told her that the money as demanded by

the accused cannot be given, since they have some difficulty in raising the funds. It is also the case of prosecution that the accused has made

several demands on earlier occasions from his in-laws through his wife, the deceased.

On 29.09.1987 the deceased, P.Ws.2 to 4 and Nithya, the other daughter of P.W.2 were in the house. There was power failure and hence

electric lights were not burning. The deceased wanted to light a lamp in the pooja room and was searching for the pooja lamp. It was not

traceable. P.Ws. 2 and 3 went to the backyard to take bath. The deceased entered the kitchen room to boil black-eyed grams and at that time

P.Ws.2 and 3 were washing their clothes at the bath room. P.Ws.2 and 3 heard the deceased and the accused quarrelling and also heard the

sounds of the accused beating the deceased. Immediately, P.Ws.2 and 3 rushed to the scene and found P.W.4 and Nithya pleading with the

accused not to beat the deceased. They found the accused holding the tuft of the deceased and fisting on her back. P.W.2 intervened and the

beatings also fell on her. P.W.2, thereafter, took the deceased to the backyard and the deceased was abusing the accused at that time. On hearing

the abuses, the accused once again started beating the deceased and pushed her over the thorny fence. The deceased rushed into the house and

the accused followed her. P.Ws.2 and 3 followed them and found the deceased in flames. P.W.1, the brother-in-law of the accused, who came at

the psychological moment, rushed into the house and put out the fire. When questioned the persons who were present, they told him that the

deceased sustained burn injuries while she was cooking the grams. The deceased was removed to the Government Hospital, Kabisthalam, where a

doctor by name Karunanidhi gave her an injection and referred her to the Government Hospital, Thanjavur, for better management. He also sent

an Assistant by name Rangarajan along with the deceased. On being referred to, the deceased was taken to the Government Hospital, Thanjavur

where P.W.5 the duty doctor examined her at 8.20 p.m. When questioned as to the cause of the injuries, he was informed that Tamil Rani

sustained burn injuries while she was cooking food in the kitchen. As she had 90% burn injuries she was admitted in the hospital. Ex.P.2 is the

copy of the accident register in respect of the injuries found on her. He also examined P.W. 1 at about 8.25 p.m. and found 10% of bums on both

his hands. He issued Ex.P.3 a copy of the accident register. An intimation was also sent to the police station.

On receipt of the intimation, a police constable, Kabisthalam Police Station with number 2043, went to the Government Medical College

Hospital, Thanjavur and recorded Ex.P.1, the statement given by P.W.1. The constable, thereafter, returned to the police station and placed it on

the table of the Sub-Inspector P.W.13. P.W.13 returned to the police station after his escort duty at about 10.00 a.m. on 01.10.1987 and found

the statement Ex.P.1 and on the basis of Ex.P.1 he registered a case in crime No. 280/1987 under the caption Tire accident''. Ex.P.9 is the copy

of the printed first information report. He, then left for some other duty and returned to the police station on 04.10.1987. Thereafter, he went to the

Government Hospital, Thanjavur and finding the deceased conscious, recorded a statement from her at 4.00 p.m. and the said statement is

Ex.P.10. P.W.13. after recording Ex.P.10 returned to the police station and altered the Crime into one u/s 307 I.P.C. and prepared Ex. P.11 and

express report. The copies of the reports were sent to the higher officials as well as the Court.

On receipt of the information about the registration of the crime u/s 307 I.P.C, P.W.16 the Inspector of Police, Papanasam Circle took up

investigation in the case and reached the scene of occurrence by 04.00 p.m. on 05.10.19S7 and since the house was found locked he returned to

the police station.

Meanwhile, on 04.10.1987 at 3.30 p.m. the duty doctor at the Government Hospital sent Ex.P.6 requisition to the Magistrate to record the

statement of the deceased and on receipt of the said requisition Ex.P.6, P.W.12 the Judicial II Class Magistrate, Thanjavur reached the

Government Hospital, Thanjavur at about 4.25 p.m. and recorded the statement Ex.P.7 given by the deceased, in which Ex.P.8 certificate was

appended by the duty doctor. Tamil Rani, who was undergoing treatment at the hospital died at about 3.50 p.m. on 05.10.1987 and an intimation

was sent to the police station, which was received by P.W.16. He on receipt of the said intimation, altered the crime into one u/s 302 I.P.C. by

preparing express reports. Ex.P.14 is the copy of the printed first information report in the altered crime. P.W.16 on 06.10.1987 proceeded to the

scene of occurrence, where in the presence of P.W. 15 prepared an observation maliazar Ex.P.12 and also seized M.Os.1 to 5 under mahazar

Ex.P.13 attested by P.W.15. He also drew a rough sketch Ex.P. 15 and thereafter proceeded to the Government Hospital, Thanjavur, where he

conducted inquest over the dead body of the deceased between 10.00 a.m. and 12.45 p.m. on 06.10.1987 in the presence of panchayatdars,

during which he questioned P.Ws. 2, 4 and 8 as well as one Saraswathi and prepared Ex.P.16 the inquest report. After the inquest, he issued a

requisition Ex.P.4 for conducting autopsy on the dead body and P.W.7, on receipt of the requisition, conducted autopsy and found the following

injuries on her body:

First degree burns seen over left shoulder, face, in patches and back of right arm.

Infected second degree burns seen over the front of neck, both breasts, front of abdomen, both thighs, front of left leg and front of right leg at its

upper part, left upper extremity and right hand. Singeing of pubic hair noticed. Cut down wounds seen on both the ankles.

P.W.7 issued Ex.P.5 the post mortem certificate and has opined that the deceased would appear to have died on account of the bum injuries

sustained by her.

In the meantime, P.W. 16 questioned the other witnesses in the case. He also questioned P.W.1, who was undergoing treatment at the hospital.

On 19.10.1987 he questioned Nithya, the elder sister of P.W.4, one Suseela and other neighbours of the deceased and recorded their statements.

The accused, in the meantime, surrendered before the Judicial Magistrate, Kumbakonani. P.W.16 examined P.Ws.5, 6 and 7, the doctors who

treated and conducted post mortem. After completing the investigation, he filed a final report on 30.11.1987 against the accused for the offence

punishable u/s 302 I.P.C.

When questioned u/s 313 Cr.P.C., the accused denied his complicity in the crime and filed a written statement in which he has stated that the

deceased sustained bum injuries on account of the accident. According to him he never asked his wife to bring money from her parents'' house.

But, on the contrary, the father of the deceased had taken jewels weighing about seven sovereigns from the deceased which was presented by him

to his wife and pledged it and in spite of repeated requests they were not redeemed by the father of the deceased. He has further stated that after

the accident the deceased was taken to the hospital at Kabisthalam, where to the doctor Kaninanidhi she stated that she sustained injuries

accidentally, while she was cooking food and that the said doctor after giving first aid sent her to the Government Hospital, Thanjavur with his

Assistant Rangarajan.

The fact that Tamil Rani died on account of bum injuries is not in dispute and it also stands proved through the evidence of the doctor P.W.7

and the post mortem certificate Ex.P.5 issued by him. It is the case of the prosecution that the accused poured kerosene over the deceased and

pushed her over a naked lamp, as a result of which, she sustained bum injuries which resulted in her death. But on the contrary, the defence

contends that the deceased sustained bum injuries accidentally while she was cooking. We have to now analyze the evidence available on record

to find out as to which version is true.

The prosecution, before the trial Court, to speak about the occurrence proper, has examined P.W.4 the daughter of P.Ws.2 and 8. who was

aged six years on the date of the incident. She, in her evidence, has stated that on the date of the incident, the deceased was beaten by the accused

and that thereafter the accused poured kerosene over her and pushed her. as a result of which the deceased fell over a naked lamp and sustained

bum injuries. P.Ws.2 and 3 the mother and the paternal aunt were also examined before the trial Court to say that at about 06.00 p.m. on

29.09.1987 there was a quarrel between the accused and the deceased and the accused was seen beating the deceased. According to them they

rushed from bath room where they were washing clothes and found the accused fisting the deceased and that P.W2, who intervened, also was

beaten. They have further deposed that P.Ws.2 and 3 took the deceased to backyard and the deceased was at that time abusing the accused.

They have also deposed that the accused followed them and pushed the deceased on the thorny fence. Thereafter, the deceased rushed inside,

followed by the accused. According to them they also went inside and found the deceased in flames. From the evidence of P.Ws.2 and 3, it is

clear that they did not actually witness the occurrence or witness the accused pouring kerosene over the deceased and pushing her over a naked

lamp The occurrence, according to the prosecution, was witnessed by P.W.4. Even at the outset, we may say that the evidence of these three

witnesses is not convincing. It is the admitted case that P.W.4 was aged six years on the date of the incident. If P.W.4 had really witnessed the

occurrence, as stated by her, before the Court, she must have certainly informed the said fact to her mother P.W.2 and to her aunt P.W.3, who

rushed into the house and found the deceased in flames.

At this juncture, it is useful to refer to the evidence of P.W.1, who in his chief examination itself has stated that when he reached the scene of

occurrence he found the deceased in flames and that he put out the fire. According to him when he questioned the persons present at the scene as

to the cause of the injuries, they told him that the deceased sustained bum injuries accidentally, while she was cooking black-eyed grams in the

kitchen. The persons present at that time could be easily inferred as P.Ws.2, 3 and 4. If the occurrence had taken place, as claimed by the

prosecution before the Court, they would have immediately informed P.W.1 about the said fact. But on the contrary the evidence of P.W.1 in the

chief examination itself, is that the persons, who were present at the scene, told him that the deceased sustained burn injuries due to an accident.

It is the case of the prosecution, that after the incident, the deceased was removed to the Government Hospital, Kabisthalam, where a doctor

by name Karunanidhi gave first aid and when questioned as to the cause of the injuries, he was informed that the deceased sustained bum injuries

while she was cooking grams. If, as stated earlier, the accused was responsible for the bum injuries, then certainly either P.W.2 or P.W.3 or

P.W.4 would have told the doctor about the fact of the accused pouring kerosene on the deceased and pushing heron the naked lamp. But on the

contrary, the doctor was informed that she sustained bum injuries due to an accident. It is not known whether at that time the deceased was

conscious and was in a position to talk. There is no evidence on this aspect. But the fact remains that the doctor Karunanidhi. who gave first aid

was informed that the deceased sustained bum injuries on account of an accident and the said fact is seen noted in Ex. P.2. the copy of the

accident register issued by P.W.5. the duty doctor at the Government Medical College Hospital, Thanjavur. The said information to P.W.5 was

furnished by one Rangarajan, who is none other than the Assistant of the doctor Karunanidhi at Kabisthalam Hospital. The above facts indicate

that the earliest version of all the witnesses is that the deceased sustained bum injuries on account of an accident, while she was cooking grams.

It is to be noted at this stage that P.W.4 in her evidence, has stated that her elder sister Nithya was also present when she was examined by

the investigating officer on 06.10.1987. There is no explanation from the side of the prosecution as to why the investigating officer P.W. 16 did not

choose to question the elder sister of P.W.4 and record her statement on 06.10.1987, when according to the prosecution she was the other

witness, who has witnessed the occurrence proper. P.W. 16 has admitted that the statement of Nithya was recorded only on 19.10.1987 and the

same has reached the Court only on 02.12.1987. There is also no explanation as to why the police officer did not choose to examine the witnesses

in the case till 06 10.1987 though the first information report Ex.P.9 was registered on 30.09.1987. The explanations of P.W.13 that since he had

other duties, he did not take up investigation in the case, is too artificial, since any other police officer could have taken up investigation and

recorded the statement from 30.09.1987. It is to be noted at this stage that P.W.5 the doctor, in his evidence, has stated that the police obtained a

copy of the accident register even on 30.09.1987 and the intimation was also sent to the police station, much earlier to that. There is also no

explanation on the side of the prosecution as to why the prosecution did not choose to examine the police constable No. 2043. who recorded

Ex.P.1 given by P.W.1 at the hospital. In this connection, an useful reference can also be made to the evidence of P.W.5. who has stated that

when he examined Tamil Rani, she did not find any smell of kerosene on her. This also creates a, doubt about the evidence of P.W.4 that the

accused poured kerosene over the body of the deceased and pushed her over a naked chimney.

It is also to be noted at this stage that it has been elicited by way of contradiction from P.W. 16, the Investigating Officer, that when he

questioned P.W.2 on 06.10.1987 she did not mention about the presence of her children P.W.4 and Nithya at the scene. If P.W.4 and her other

daughter Nithya were actually present in the house of the deceased and witnessed the occurrence, she would have certainly mentioned the said fact

to the Investigating Officer P.W. 16. The absence of such a statement also creates a doubt in the minds of the Court, whether P.W.4 and Nithya

were actually present in the scene house and witnessed the occurrence, more so, when Nithya was not even questioned till 19.10.1987 by the

Investigating Officer. If the occurrence had taken place in the manner alleged by the prosecution, P.W.2 would have atleast mentioned the said fact

to her husband P.W.8, who reached the scene village on 30.09.1987. In view of the above stated facts, we do not place any reliance on the

evidence of P.Ws. 2 to 4.

Another piece of evidence, on which the prosecution placed reliance before the Court, is the two dying declarations alleged to have been made

by the deceased namely Ex.P.10 given by the deceased to P.W. 13 the Sub-Inspector of Police and Ex.P.7 given by her to P.W. 12 the Judicial

Magistrate. We may say that a perusal of Ex.P.6 requisition issued by the doctor to the Magistrate shows that Exs.P.10 and P.7 could not have

been given by the deceased voluntarily, but must have been made on the prompting of her relatives, who were present by her side, right from the

date of the accident till her death. In Ex.P.6 the doctor had stated that since her relatives suspect that it would be homicide, her dying declaration

has to be recorded. The above statement in Ex.P.6 indicated that the witnesses were very anxious to see dial the accused is implicated in the crime

and wanted the deceased to implicate him and were pestering the doctor to send a requisition saying that they suspect it to be a case of homicide.

If it was a case of suspicion, then the evidence of P.Ws. 2 to 4 that the accused poured kerosene over the deceased and pushed her over a naked

chimney, is doubtful but on the contrary the said statement in Ex.P.6 would only indicate the anxiety of the relatives to see that the accused is

implicated through a statement given by the deceased. If really the deceased was pushed over a naked chimney after kerosene was poured over

her, any one of the witnesses would have gone to the police station and given a complaint regarding the said incident: but none chose to do so.

That by itself creates a doubt about the Voluntary nature of Exs.P.10 and P.7.

Apart from the above facts a comparison of Exs.P.7 and P. 10 shows that there are several contradictions, which go to the very root of the

case. Ex.P.10 is first in point of time since, according to the prosecution, it was given by the deceased at 04.00 p.m. on 04.10.1987 to P.W.13. In

the said statement it is stated by the deceased that on 29.09.1987, as there was power failure, she borrowed kerosene from her neighbor

Saraswathi to light a lamp. She lit an oven and cooked black eyed grams and at that time the accused, who came after purchasing kerosene,

poured it over her and left saying that she must the before he returns and went towards backyard. The deceased has further stated that suspecting

that the accused may beat her sister-in-law. she followed the accused and that she was pushed over the thorny fence by him. According to her she

is seeing a match box in the hands of her husband, ran inside and that the accused followed her and pushed her on a naked chimney lamp. This

statement is contradictory to her version in Ex.P.7 given to P.W. 12 - the Judicial Magistrate. In Ex.P.7 she has stated that to light a lamp she did

not find a proper chimney lamp and when she asked for it. The accused told her as to why she is asking for the said lamp and left the house to

purchase kerosene and at that time P.W.2 and her children were taking bath in the bath room. She has further stated that the accused returned

after purchasing kerosene and started beating her with stick and broom stick. After sending the children and P.Ws.2 and 3. the accused poured

kerosene over her body and left saying that she must the before he returns. The deceased ran behind him apprehending that he may beat P.W.2

and that she returned once again to the house followed by the accused, who pushed her on a chimney lamp. There is nothing in Ex.P.7 about her

borrowing kerosene from Saraswathi and lighting a lamp. Similarly, in Ex.P.7 she did not also mention that she rushed into the house on seeing the

match box in the hands of the accused. She did not also in Ex.P.7 say that she was pushed over a thorny fence. It is also not explained as to why

the prosecution did not examine the said Saraswathi. who according to the deceased, as per her statement in Ex.P.10. gave kerosene to light the

lamp. The contradiction found in Ex.P.7 and Ex.P.10 also creates a doubt in our mind, when read in the back ground of Ex.P.6 requisition, that the

said statements could not have been given by the deceased voluntarily, but must have been given on the prompting of the relatives. Further, though

the statement Ex.P.10 is stated to have been recorded by P.W.13 at the hospital, he did not think of recording it in the presence of the doctor and

no certificate is appended to that effect.

Finally, an useful reference can be made to the evidence of P.W.10. who has deposed that he visited the hospital on 02.10.1987 and she was

conscious on that date. If the deceased was conscious on 02.10.1987. There is no reason as to why she did not come out with a statement either

to the doctors or to any of the witnesses, who were present by her side. The fact that she was conscious from 02.10.1987 and the fact that the

two statements were recorded after two days, coupled with the fact that the relatives were by her side all the time, indicate that the said statements

would not have been made voluntarily, but only on account of prompting by the relatives.

At this juncture, it is relevant to take note of the two documents Exs.D.1. and D.2 the letters admittedly written by the father of the deceased

to the accused and the deceased In Ex.D.1. the father of the deceased has stated that he has pledged the jewels of the deceased for a sum of Rs.

2,000/- and requested the accused to pay the amount if the jewels had to be redeemed. In the said letter he has given an undertaking that he would

return the amount with interest to the accused. In the Ex.D.2. which was addressed to the accused as well as to the deceased, he had advised the

accused to be patient and that he would see that the jewels arc redeemed. These two letters indicate that it was the father of the deceased, who

had taken money from the accused and not the other way as claimed by the witnesses. Except for the oral evidence of P.Ws. 2.3 and 10. who

have stated that the accused was asking for money from his in-laws, there is no other material to show that the accused was actually asking for

money from his in-laws through his wife, the deceased on the contrary the documents Exs.D.1 and D.2 clearly show that the father of the deceased

has borrowed the jewels of the deceased, presented by the accused and pledged them. In view of the above two letters, it is clear that the

prosecution has not succeeded in proving the motive for the occurrence.

On the discussions made above, we are of the view that the accused is entitled to the benefit of doubt and the same is given to him. The

accused/appellant is acquitted of the charges.

In the result, the appeal is allowed. The conviction and sentence imposed on the accused/appellant by the trial Court are set aside. The bail

bonds are ordered to be cancelled.