Rajangam vs State

M. Chockalingam, J.—Challenge is made to the judgment of the learned Additional Sessions Judge/Fast Track Court No. 2, Pattukottai

passed in S.C. No. 130 of 2001 on 30.04.2003, whereby the sole accused/appellant stood charged and tried under Sections 302 and 323 IPC,

and on trial, he was found guilty u/s 302 IPC and awarded life imprisonment, while recording the order of acquittal u/s 323 of the Code.

The short facts that are necessary for the disposal of this appeal can be stated as follows:

a) The deceased Premavathi was the wife of the accused/appellant. The marriage between the deceased and the accused took place before 8 ?

years back and as a result, a male child was born and the child was 5 years old at the time of occurrence. All along the past, the accused

demanded her to contract a second marriage, to which she was not amenable. Thus there were quarrels between the accused and the deceased.

On 06.03.2001, at about 6.00 p.m., when he made such a demand, she refused and aggrieved over the same, he poured kerosene on her and set

her ablaze. This was witnessed by the 5-year old child. When she was suffering from burn injuries sustained, the accused ran out and then he got

inside the house to remove the household articles and in that process, he also sustained burn injuries. P.Ws.1 to 5 rushed to the house and

immediately thereafter, the deceased was taken to the Government Hospital, Pattukottai, where at about 6.30 p.m., P.W.9-Doctor gave treatment

to her and Ex.P4 is the Accident Register copy issued to that effect. The accused was also treated by P.W.9 for the burn injuries sustained by him.

b) On receipt of the intimation from the hospital, P.W.16, Head Constable, attached to the respondent Police Station, proceeded to the

Government Hospital, Pattukottai and recorded the statement of the deceased, which has been marked as Ex.P9. On the strength of Ex.P9, a case

came to be registered in Crime No. 193 of 2001 u/s 307 IPC. The First Information Report-Ex.P10 was despatched to the Judicial Magistrate

Court and the copies were also sent to the higher-ups.

c) Intimation was given to P.W.10-Judicial Magistrate, Pattukottai under Ex.P5 by the hospital authorities. On receipt of the intimation, P.W.10

proceeded to the hospital. P.W.11-Doctor has certified that the deceased was in a fit state of mind to give dying declaration. After being certified

by P.W.11, P.W.10-the Judicial Magistrate, Pattukottai recorded the dying declaration, which has been marked as Exs.P6 and P7. Despite the

treatment given to her, she died. Then, the case was converted into Section 302 IPC.

d) Investigation was taken up by P.W.17 who was looking after the additional charge of the Inspector of Police of Pattukottai Police Station. He

went to the scene of occurrence and recorded the statements of witnesses and prepared Ex.P15-Observation Mahazar and Ex.P14-Rough

Sketch. Thereafter, P.W.17 recovered the material objects from the place of occurrence in the presence of witnesses under the cover of Exs.P16

and P17-Seizure Mahazars. Further, he went to the mortuary where the dead body of the deceased was kept, and conducted inquest over the

dead body of the deceased in the presence of witnesses and panchayatars and prepared Ex.P18-Inquest Report and the dead body was sent for

the purpose of autopsy.

e) P.W.13, the Doctor attached to the Government Hospital, Pattukottai conducted autopsy on the dead body of the deceased and she gave his

opinion under Ex.P8-Post Mortem Certificate, that the deceased would appear to have died of septic shock due to 90% burn injuries.

f) Further investigation was taken up by P.W.18-Inspector of Police, who also recorded the statements of witnesses. P.W.19-Inspector of Police,

took up further investigation. Pending investigation, on 27.03.2001, the investigator arrested the accused and thereafter, he was sent for judicial

remand.

g) After completing the investigation, P.W.19 filed charge sheet against the accused/appellant under Sections 302 and 324 IPC on 28.04.2001

before the concerned court, which in turn committed the case to the court of sessions and necessary charges were framed.

h) In order to substantiate the charges, at the time of trial, the prosecution examined 19 witnesses and relied on 18 exhibits and 4 M.Os. On

completion of the evidence adduced on the side of the prosecution, the accused/appellant was questioned u/s 313 Cr.P.C. as to the incriminating

circumstances found in the evidence of prosecution witnesses. He denied them as false. No defence witness was examined. After hearing the

arguments of the counsel and looking into the available materials, the Trial Court, took the view that the prosecution has proved the case beyond

reasonable doubt and found the accused guilty and awarded the punishment as referred to above. Under these circumstances, this criminal appeal

has arisen at the instance of the accused/appellant.

Advancing arguments on behalf of the accused/appellant, the learned Counsel would submit that, in the instant case, the prosecution had no

direct evidence to offer. The occurrence had taken place at 6.00 p.m. on 06.03.2001, and even, according to the prosecution, the child aged

about 5 years was present in the place of occurrence. The investigator had admitted that the statement of the child was recorded and the name of

the child has also been shown in the list of witnesses, but not examined for the reasons best known to the prosecution. According to the counsel for

the appellant, had the child been actually examined, the case of the prosecution would have been lost.

Learned Counsel for the accused/appellant, pointing to the available materials, would submit that the first statement is the statement given by the

victim to P.W.9-Doctor at 06.30 p.m. and the same was marked as Ex.P4, and a reading of Ex.P4 would clearly indicate that the burn injuries

sustained by her were due to accidental fire and it would also clearly indicate that the prosecution''s story that the accused poured kerosene on her

and set her ablaze, was false.

The learned Counsel for the accused/appellant also pointed out that the second statement which was relied on by the prosecution is Ex.P9

which was made by the deceased to P.W.16-Head Constable on 07.03.2001 at 2.30 hours, and the third statement is the dying declaration

recorded by the Judicial Magistrate, Pattukottai at 12.00 hours on 07.03.2001 under Exs.P6 and 7. Pointing to the above statements, the learned

Counsel for the accused/appellant would submit that there are vital discrepancies in these statements and hence, it would clearly indicate that these

statements could have come into existence only after sufficient instructions were given to the deceased by the relatives. Further, the counsel added

that even as per the evidence available on record, all the relatives of the victim who came to the hospital were by her side and tutored her, which

had resulted in the emanation of the false statements given by her to the Head Constable as well as to the Judicial Magistrate.

Added further the learned Counsel that, in the instant case, the accused also sustained injuries and he was also treated by P.W.9-Doctor, but

the Accident Register copy pertaining to the accused was not placed before the Trial Court. Had it been placed, it would have been against the

case of the prosecution and it would have been a fit case for drawing adverse inference.

Further, the learned Counsel for the accused/appellant would submit that the prosecution had no direct evidence to offer. It was only a child

who saw the crime, but the child was not examined and therefore, the accused is entitled for acquittal in the hands of this Court and accordingly,

the judgment of the Trial Court has got to be set aside.

The court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made

and also scrutinised the materials available.

It is not in controversy that one Premavathi, wife of the accused/appellant, following an incident that took place at about 6.00 p.m. on

06.03.2001, in the house of the appellant, was taken to the Government Hospital, Pattukottai and she was admitted by P.W.9 and despite

treatment, she died in the hospital. Originally, the case was registered by P.W.16 u/s 307 and on her death, the case was converted into Section

302 IPC. Following the inquest made by the Investigator, the dead body was subjected to post mortem by P.W.13, who had given a categorical

opinion that the deceased died out of septic shock due to 90% burn injuries and the deceased died out of the burn injuries suffered by her. These

facts were never disputed by the appellant before the Trial Court and hence the Trial Court found no legal impediment in recording that the

deceased died out of burn injuries sustained by her.

In order to substantiate that it was the accused who poured kerosene on the deceased and set her ablaze, the prosecution had no direct

evidence to offer. It relied on three statements, which are found in the materials available before the Trial Court. One is the statement given by the

victim to P.W.9-Doctor at 06.30 p.m. and the same was marked as Ex.P4, the second is the statement made by the deceased to P.W.16-Head

Constable on 07.03.2001 at 2.30 hours under Ex.P9 and the third statement is the dying declaration recorded by the Judicial Magistrate,

Pattukottai at 12.00 hours on 07.03.2001, which has been marked as Exs.P6 and P7. Pointing to the above three statements, the learned Counsel

for the accused/appellant desired to lay importance on Ex.P4, in order to substantiate that the appellant had no role to play in the incident.

According to the learned Counsel for the accused/appellant, the statement given by the deceased to P.W.9 which has been marked as Ex.P4 as

Accident Register copy, reads that ""Said to have been get fired accidentally on 6.3.01"" and no such statement was made that the accused poured

kerosene on her and set her ablaze. It is true that no such statement was made that the accused poured kerosene on her and set her ablaze in

Ex.P4, but it is needless to say that, in such a short span of time, when she sustained about 90% injuries, she would have been under the grip of the

accused and hence, this Court is of the opinion that much importance cannot be given to the statement made by the deceased to P.W.9-Doctor.

Apart from the above, two statements were available to the prosecution, one which has been given by the deceased under Ex.P9 to P.W.16-

Head Constable, on the strength of which the case came to be registered and another by way of dying declaration under Exs.P6 and P7, recorded

by P.W.10-Judicial Magistrate at 12.00 hours on 07.03.2001. A very reading of Ex.P9 would clearly indicate that it was the accused who poured

kerosene on her and set her ablaze and when she was burning the accused ran out and then he got inside the house to remove the household

articles and in that process, he sustained burn injuries. In Ex.P6 & P7-Dying Declaration, the deceased has clearly stated that the accused poured

kerosene on her and set her ablaze. Thus, the injuries sustained by the accused were well explained by the victim in her statements made to the

Head Constable and the Judicial Magistrate.

The Judicial Magistrate, Pattukottai who recorded the dying declaration was examined as P.W.10. According to the Judicial Magistrate, on

intimation, he went to the hospital and after getting a certificate from the Doctor that the deceased was in a fit state of mind to give declaration, the

dying declaration was recorded under Exs.P6 and P7, which would clearly indicate that it was the accused who poured kerosene on the deceased

and set her ablaze. At this juncture, it is pertinent to point out that the occurrence took place at 6.00 p.m., the victim was taken to the hospital at

6.30 p.m., and the dying declaration was recorded at 12.00 hours on the next day and there was sufficient interval for the lady to regain her

physical condition and hence, she was able to give such a statement against the accused to the Judicial Magistrate. It is also pertinent to note that

the statement given by the deceased to P.W.16 shows that the accused poured kerosene on her and set her ablaze. All these would indicate that it

was the accused who poured kerosene on her and set her ablaze.

It is further pertinent to point out that, at the time of occurrence, only three persons were present. One is the accused/appellant, the second is

the deceased and the third is the child. Apart from the above three persons, no one was available. If it was so, it is for the accused/appellant to

explain how she sustained burn injuries, but he had no explanation to offer. Hence, it would clearly indicate that it was he who poured kerosene on

her and lit fire. The Trial Court is correct in marshalling the evidence and convicting the accused u/s 302 IPC and awarding life imprisonment, by

coming to the conclusion that the act of the accused has to be termed as murder.

In view of the foregoing reasons, this Court is unable to find out any reason either factually or legally to reject the findings of the Trial Court.

Therefore, the conviction and sentence imposed by the Trial Court on the accused/appellant are liable to be confirmed and accordingly confirmed

and the Criminal Appeal is dismissed.