Priya Sudir vs State

C.T. Selvam, J.—The challenge in this appeal is to the judgment of learned IV Additional Sessions Judge, Chennai, dated 3.12.2011 passed

in S.C. No. 579 of 2010, convicting the appellant for offence u/s 302 IPC and sentencing her to undergo life imprisonment and fine of Rs.

50,000/-, in default, simple imprisonment for three months. The case of the prosecution is as follows:

(i) The appellant caused the death of her housemaid by pouring kerosene over her saree and thereafter exposing the same to the naked flames of

the kitchen Gas Stove. The occurrence is said to have taken place on 15.9.2008.

(ii) Immediately after the occurrence, the accused and her husband took the deceased to K.M.C. Hospital. Upon receipt of information therefrom,

P.W. 12-Inspector of Police proceeded to the hospital and recorded the statement of the deceased in Exhibit P-10, which was attested by P.W.

10, Doctor. P.W. 12 sent requisition for recording of Dying Declaration and proceeded to the Police Station and registered a case in Crime No.

1160 of 2008. Exhibit P. 13 is the First Information Report.

(iii) The post-mortem report marked as Exhibit P-8 reads as follows:

P.M. No. 1890 of 2008, dated 16.9.2008.

Cr. No. 1160 of 2008 of F5, Choolaimedu Police Station.

Regarding the body of a female named Parameshwari, aged about 40 years.

Requisition received on 16.9.2008 from F5, Choolaimedu Police Station with his letter No. 1160 of 2008, dated 16.9.2008. Body in charge of

H.C. No. 6789-Paramasivam.

Identification Marks: Nil injuries made out due to burns (92%).

A case of 92% burns. Extensive burns involving whole body. Deep dermal burns over head, neck, chest, abdomen of front and back arms both

and legs both. Except both sole of feet and forehead. Heart clotted blood in R/C side chambers. Lungs both R/L are congested. Trachea normal

and empty. Hyoid bone intact. Stomach 200 ml of brown colour fluids present.

Liver, spleen, kidneys are normal. C/s congested. Bladder and uterus empty. Pelvis spinal column, scalp bones, membranes are intact. Brain

normal.

To substantiate its case, the prosecution examined 12 witnesses and marked 21 exhibits, besides marking M.Os. 1 to 3. On questioning u/s 313

Cr.P.C. the accused denied the charges. The defence examined two witnesses, viz., the accused and her son and marked one exhibit in Exhibit D-

1-xerox copy of F.I.R.

Learned trial Judge, on consideration and appreciation of the evidence adduced, found the accused guilty, convicted and sentenced her as

stated above. Hence, the present appeal.

Heard Sri. V. Gopinath, learned Senior Advocate on behalf of the appellant and learned Additional Public Prosecutor.

In the instant case, there are three statements of the deceased. The first is Exhibit P-12-Accident Register, wherein, entry was made by P.W.

11-Dr. Arulmozhirajan at the time of admission of the deceased in the hospital. The second is the statement recorded by P.W. 12-Investigating

Officer, upon proceeding to hospital on intimation had therefrom. The third is the statement of the deceased recorded by P.W. 7-Metropolitan

Magistrate.

Investigating Officer-P.W. 12 admits to the Accident Register, Exhibit P-12 being forwarded to court only on 22.11.2008. The defence has

marked Exhibit D-l-copy of the F.I.R. through D.W. 1, the accused. Exhibit P-13 does not reflect the signature of one Sivakumar as the informant

in the case, whereas Exhibit D-1 does. P.W. 12-Investigating Officer has admitted to examining the said Sivakumar, but such person has not been

called as a witness.

Mr. V. Gopinath, learned Senior Counsel submits that P.Ws. 1 and 2 - son and daughter-in-law of the deceased turned hostile. Learned Senior

Counsel would submit that the statements of the deceased implicating the accused came to be made at the instance of her relatives. In fact, P.W. 1

had deposed that he proceeded to the hospital on being informed by the accused over phone and that he and P.W. 2 were at the hospital even

before the accused came there along with his mother, the deceased. Similar is the evidence of P.W. 2, the wife of P.W. 1.

Learned Senior Counsel would also challenge the veracity of the entry in the Accident Register-Exhibit P-12, submitting that P.W. 11-Doctor,

who is said to have recorded the same, admitted that the signature thereupon was not his. Though he had deposed that the entries thereupon were

made on his instructions, the same neither reflected the hospital seal nor informed whether the impression of the deceased found therein was the

impression of the thumb or toe. He had also deposed that if the deceased had suffered burn injuries owing to kerosene, the smell thereof would be

discernible and he had not made any notings there regards in the Accident Register. On the dying declaration recorded in Exhibit P-6 by

Metropolitan Magistrate, P.W. 7, learned Senior Counsel would submit that the same only reflected the carrying forward of the tutoring of the

relatives of the deceased.

Learned Senior Counsel submits that the prosecution has failed to examine the informant, Sivakumar, who is a material witness, since doing so

would have revealed the falsity of the prosecution case. Learned Senior Counsel submits that even the statement of the deceased recorded by

P.W. 12, which forms the base for the registration of the F.I.R., would reveal an unnatural version of the accused using kerosene which was in a

small plastic cover to wet the saree of the deceased and thereafter exposing the saree to the flames of the Gas stove. In the dying declaration

recorded by P.W. 7, the deceased stops with saying that the accused poured kerosene upon her. She does not go further to inform that the

accused set her on fire. This reflected the position that the deceased had some reservation on false implication of the accused. The motive

suggested by the prosecution of the deceased owing the accused a sum of Rs. 15,000/- and owing to quarrel arising there regards, the accused

had acted in the manner suggested, rather was flimsy. Even the recovery of the plastic kerosene bag is alleged to have been effected at the instance

of the accused from a shelf in the kitchen where she had placed the same. Had the accused actually poured kerosene over the deceased and set

her on fire as suggested by the prosecution, it would be unreasonable to expect that the accused meticulously replaced the plastic cover upon the

shelf after carrying out such a gruesome act. The defence had examined the accused as D.W. 1. She had deposed that upon being informed by her

son D.W. 2 of the deceased being caught in flames, she and her husband sought to set out the same by covering her with a blanket. She had

admitted the deceased to hospital and while on the way thereto, she had contacted P.W. 1 by cell phone and informed him. When she arrived at

the hospital, the family of the deceased was present there. Though the defence had examined D.W. 1 only for the purpose of marking Exhibit D-1-

copy of the First Information Report, in the course of the cross-examination by the prosecution, the defence version has been culled out. D.W. 2,

the minor son of the accused had deposed to finding the deceased in flames when he went to the kitchen to fetch a glass a water for himself and of

thereafter informing his parents, whereupon they rushed and sought to put out the flames by covering her with a blanket. He had deposed that

when he proceeded to the kitchen, the accused was in the bedroom.

Learned senior counsel submits that the defence version found support in the evidence of P.Ws. 1 and 2, who are none other than the son and

daughter-in-law of the deceased. Submitting that the evidence of witnesses treated hostile by the prosecution as also that tendered by defence

witnesses was to be given due consideration, learned senior counsel places reliance on a few decisions of the Apex Court in support of such

contention. He also contends that the evidence of P.Ws. 1 and 2 had not been seriously challenged by the prosecution. Learned senior counsel

further submits that through cross-examination of D.W. 1, the accused, the prosecution has elicited the defence version. In the instant case, the

dying declarations do not merit acceptance. The defence version was more probable. The finding of conviction arrived at by the trial Court is

erroneous and is liable to be set aside.

We have heard the learned Additional Public Prosecutor on the above submissions. He would submit that the finding of conviction arrived at

by the trial Court on the basis of Accident Register Exhibit P-12, supported by the evidence of P.W. 11-Doctor, statement recorded by P.W. 12-

Murugesan in Exhibit P-13-First Information Report and more importantly the dying declaration recorded by P.W. 7-Metropolitan Magistrate,

was a well-founded one. Though P.Ws. 1 and 2, son and daughter-in-law of the deceased had turned hostile, that alone would not be sufficient

reason to acquit the accused. The evidence of the accused-D.W. 1 and D.W. 2 were self-serving in nature and do not merit acceptance. The trial

Court, on consideration of the totality of the facts and circumstances, arrived upon a finding of conviction and the same was to be upheld. On his

part, learned Additional Public Prosecutor also places reliance on some judgments of the Apex Court towards informing that dying declarations

could be accepted and acted upon even in the absence of corroboration.

We have considered the rival submissions.

We are in no doubt that in an appropriate case, dying declarations may find acceptance of Courts even in the absence of corroboration. A

decision upon such question necessarily would depend upon the attendant facts and circumstances. In the instant case, we find that not only D.W.

1, the accused speaks to the presence of the prosecution witnesses in hospital before the arrival of the accused there along with the deceased, but

such is the version also of P.Ws. 1 and 2, who are none other than the son and daughter-in-law of the deceased. It is the evidence of D.W. 1 as

also P.W. 1 that P.W. 1 was informed over phone by D.W. 1, while the deceased was being brought to hospital. P.W. 1 admits to having spoken

against the accused in a fit of anger. It is understandable that he, as the son of the deceased, would have been in an agitated frame of mind on

finding his mother/deceased produced in such a state and from where she was working i.e., the house of the accused.

The decision in the case of Ashabai and Another Vs. State of Maharashtra, informs as follows:

... As a general rule, it is advisable to get the evidence of the declarant certified from a doctor. In appropriate cases, the satisfaction of the

person recording the statement regarding the state of mind of the deceased would also be sufficient to hold that the deceased was in a position to

make a statement. It is settled law that if the prosecution solely depends on the dying declaration, the normal rule is that the courts must exercise

due care and caution to ensure genuineness of the dying declaration, keeping in mind that the accused had no opportunity to test the veracity of the

statement of the deceased by cross-examination. As rightly observed by the High Court, the law does not insist upon the corroboration of dying

declaration before it can be accepted. The insistence of corroboration to a dying declaration is only a rule of prudence. When the court is satisfied

that the dying declaration is voluntary, not tainted by tutoring or animosity, impediment in convicting the accused on the basis of such dying

declaration. When there are multiple dying declarations, each dying declaration has to be separately assessed and evaluated and assessed

independently on its own merit as to its evidentiary value and one cannot be rejected because of certain variations in the other.

Thus, learned Additional Public Prosecutor is right in submitting that a conviction can be found solely upon a dying declaration. However, each

case would have to be decided keeping in mind the attendant facts and circumstances. It is to be kept in mind that both defence evidence as also

the evidence of witnesses treated hostile by the prosecution are to receive due appreciation.

A reading of the judgment of the Apex Court in Chote Lal and Another Vs. State of Haryana, would inform the necessity to consider the

evidence let in by the defence as also other relevant circumstances in favour of the accused. The mere fact that a witness is treated hostile by the

party calling him and allowed to be cross-examined by such party does not make him unreliable so as to exclude his evidence from consideration

altogether. That his evidence is to be considered for what it is worth is settled position in law Bhagwan Singh Vs. The State of Haryana, and Sat

Paul Vs. Delhi Administration, .

Though P.Ws. 1 and 2, son and daughter-in-law of the deceased, have spoken against the prosecution case, we would have to consider the

possibility of they the impoverished, being influenced by the affluent, P.W. 1''s mother having been a house maid working at the house of the

accused. We are unable to harbour any such suspicion since the prosecution case suffers a serious infirmity in that one Sivakumar, which Exhibit

D-1-copy of the FIR reflects as informant, stands not produced before the Court despite P.W. 12 admitting to having examined such person. One

other important consideration is that but for information by D.W. 1/accused to P.W. 1, there would be no occasion for the presence of either

P.Ws. 1 and 2 or the said Sivakumar, at hospital on the fateful night. In the circumstances, the possibility of the dying declarations being the

product of tutoring cannot be ruled out. While discarding, Exhibit P-13, recorded by P.W. 12 solely for the aforesaid reason, there are also other

reasons why we would discard Exs. P6 and P12. Admittedly, Exhibit P-12, Accident Register, has been forwarded to Court only on 22.11.2008

i.e., more than two months after the date of occurrence. The same is to be rejected since P.W. 11, Doctor, admits to not having affixed his

signature thereon. Though P.W. 11 has deposed that Exhibit P-12 was recorded upon his instructions, we do not accept such contention since the

same does not bear the seal of the hospital nor it is informed whether the impression found thereupon is that of thumb or toe of the deceased. P.W.

11 has also informed that in case of kerosene burns, the smell of kerosene would be discernible but that he had not made any notings there regards

in Exhibit P-12. As regards Exhibit P-6, the dying declaration recorded by P.W. 7, it is to be noticed that therein the deceased has stopped short

of informing that the accused/D.W. 1 set her on fire. The possibility of the defence version being the correct one cannot be ruled out. In such

circumstance, the benefit of doubt would have to flow to the accused. For the reasons afore-stated, we set aside the conviction passed against the

appellant by learned IV Additional Sessions Judge, Chennai, in S.C. No. 579 of 2010 on 03.12.2011. The Criminal Appeal is allowed. The

appellant shall be released forthwith, unless her custody is required in connection with any other case. The appellant shall now be entitled to refund

of fine of Rs. 50,000/- paid by her pursuant to her conviction by the trial Court.