Rajendran vs State

K. Natarajan, J.—This appeal has been preferred by the appellant/accused against the conviction and sentence passed against him by the

learned Additional Session Judge, North Arcot at Vellore, dated 26.2.1990 in S.C.No.185 of 1989. The appellant, who hereinafter will be

referred to as the accused stood trial for an offence, u/s 302,1.P.C. on the allegation that on 22.8.1980 at 11.00 a.m. at Katpadi Tharapadavedu

Village, he dowsed his wife Indira with Kerosene and set fire on her, due to which Indira died at 4.35 p.m. in the hospital.

On a consideration of the evidence placed before him, the learned Additional Sessions Judge, the then North Arcot District at Vellore

convicted"" the accused u/s 302 IPC. and sentenced him to undergo imprisonment for life.

The case of the prosecution is briefly this:-The accused and the deceased loved each other and they got married on 8.2.1989 at Tiruppathi

without the consent of their parents. The accused was working as a supervisor in the Railways at Thiruvalam. After the marriage, they set up their

family at Door No.4, Govinda Mudali Street, Tharapadavedu in the house belonging to P.W.1, P.W.2, her younger sister''s daughter was living

with P.W.1. They were having their bed room near the street and the kitchen was located inside the house near court yard. After some days of the

marriage, the accused listening to the words of his relatives began to beat her and compelled her for divorce and consent for a second marriage.

The deceased did not give her consent but was adamantly living with the accused. Ill treatment continued and the accused starved his wife Indira

and he did not purchase groceries, rice and other materials necessary to prepare food. On the fateful day, at about 11.00 a.m. there were sounds

in the bed room where the accused and the deceased were living and the deceased came out engulfed in flames followed by the accused, which

was seen by P.Ws.l and 2. On seeing the above sight, both P.Ws.l and 2 went towards the backyard and became unconscious and later, they

learnt the accused had removed his wife Indira in an autorickshaw to the hospital. P.W.10 Dr. Manillango, Civil Assistant Surgeon attached to the

Government Pentland Hospital gave treatment lo Indira at 12.00 Noon and admitted her as an in patient and gave information to the police, which

is E.x.P.6. At the time of the examination, Indira was conscious and then sent the requisition, Ex.P.3 to the Judicial Magistrate to record the dying

declaration of Indira. He found the following injuries on Indira:-

Burns: 1. Burns with skin peeling left upper limb and right upper limb.

Burns with skin peeling chest, neck lower portion back.

3 Burns both thigh.

Ex.P. 7 is the Wound Certificate issued by him. On receipt of the intimation Ex.P.6, the Head Constable P.W. 14 attached to the Out-Post Police

Station, Government Pentland Hospital went to the hospital and recorded the statement of Indira, which is Ex. P. 14. He read over the same to her

and got her signature. On the same day, he recorded the statement of the accused also which is Ex.P. 15. He sent both Exs.P.14 and P. 15 to the

Katpadi Police Station. At 4.35 p.m. he received death intimation Ex.P. 10 that Indira died, which was also sent to the Katpadi Police Station.

P.W. 17, the Sub-Inspector of Police, Katpadi Police Station. On receiving Ex.P. 14 registered a case in Crime No.509 of 1989 u/s 307, I.P.C.

and prepared express first information report, which is Ex.P. 19. He sent Exs.P. 14 and P. 19 to the court of Judicial Magistrate and copies of

Ex.P. 19 to the superior officials. Thereafter, P.W. 17 proceeded to the place of occurrence along with a photographer P.W.8. P.W.7 also went

with them. P.W. 17 on an inspection of the place of occurrence prepared Ex.P.l, the observation mahazar and Ex.P.20, the rough sketch. He

seized a burnt polyester saree, M.O.2, a burnt polyester saree piece, M.O.3, two pieces of burnt polyster saree, MO.4 series, three pieces of

glass bangles. M.O.5 series, a match box with match sticks, MO.6. one burnt match stick, MO.7 and a partly burnt polyester shirt, M.O.8 from

the bed room and a plastic can with kerosene, M.O.9 and a kerosene stove, M.0.10 from the kitchen under cover of Mahazar Ex.P.2 attested by

P.W.7 and another. At 4.00 p.m he reached the Government Pentland Hospital and arrested the accused who was under treatment and sent him

to remand. After receiving the death intimation, Ex.P. 10 at 6.45 p.m. on 26.8.1989, he altered the Section into Section 302, I.P.C. and prepared

the express report Ex.P.21 and sent the same to the court of Judicial Magistrate along with the articles seized by him. The court after sending the

articles received the Chemical Examiner''s Report-Ex.P. 18.

On receiving Ex.P.3, the requisition from the doctor, P.W.9 the Judicial Magistrate No.1V, Vellore at 1.10 p.m. reached the hospital at 1.25

p.m. and after satisfying that Indira is conscious by putting some questions and disclosing his identity, recorded the dying declaration of Indira,

which is Ex.P.4. At the time when he recorded the dying declaration, P.W. 12 Dr. Dhanalakshmi was present with him and she gave the Certificate

Ex.P. 11. He also recorded the statement, Ex.P. 15 of the accused. Ex.P. 11 is the Certificate issued by P.W. 12 in the dying declaration of Indira

that the patient was conscious throughout the recording of the dying declaration. P.W. 18, the Inspector of Police. Katpadi, received the express

report Ex.P.21 at 8.00 p.m. on 26.8.1989. He reached the Government Pentland Hospital on the morning of 27.8.1989 and conducted inquest on

the dead body of Indira from 7.00 a.m. to 9.30 a.m. and prepared the inquest report Ex.P.22. At that time he recorded the statement of P.W.5.

Thereafter, he sent the body of Indira along with his requisition Ex.P. 12 for post-mortem. P.W. 11, Dr. Kathiravan, the Civil Assistant Surgeon

attached to the Government Pentland Hospital, Vellore examined the accused at 12.00 Noon on 22.8.1989 and found the following injuries:-

II Bums involving left and right forearm hand right chest. Forehead hair is drenched conscious patient answered question.

Ex.P. 8 is the wound certificate issued by him. P.W.13. Dr. Malliga, Civil Assistant Surgeon attached to the Government Pentland Hospital.

Vellore after getting Ex.P. 12, conducted post-mortem at 12.30 p.m. on 27.8.1989. She found the following external and internal injuries:-

Externally:- 60-70% of II hums over the face, neck, chest, abdomen, both upper limbs, anterior and posterior aspect, involving peeling of the skin

exposing the dermis with stuff and pus formed over the surface. No bony fracture anywhere in the body, Eyes closed. Frothy discharge through

mouth and nose present.

Internally:- Heart, lungs, liver, spleen and kidney are normal in size and shape. Cut section congested. Stomach distended with 50 ml, of yellowish

creamy substance. Bowels distended with gas. Bladder and uterus empty. Skull intact. Brain intact with membranes. Spinal column normal.

Ex.P.13 is the Post-mortem Certificate issued by her with the opinion that Indira died of septiceamic shock due to 70% of burns about 18 to 22

hours prior to post-mortem.

P.W.18 continued his investigation and examined P.Ws.10, 12, 13 and 14 on 29.8.1989 and P.W.1 1 on 16.9.1989. After completing his

investigation, he filed the final report on 30.9.1989 u/s 302,1.P.C. against the accused.

When examined u/s 313, Cr.P.C. regarding the incriminating evidence found against him, the accused stated it is true that he and Indira lived in

the house belonging to P. Ws. 1 and 2, but has denied his complicity with the offence. According to him, his wife Indira was opposing him

educating his brother and sisters. Even before the marriage, Indira wrote to him that she will commit suicide and he advised her not to do the same.

On the morning of the occurrence, he informed his wife that he intended to go over to Madras to seek a seat to has sister in Queen Mary''s

College and Indira prevented him not to go and thereafter he slept He was on night duty on the previous day Suddenly he found his wife Indira

engulfed in flames at the entrance of the bed room. He pulled her burnt saree and skirt and threw them. Unable to bear the pain, Indira ran out. He

followed her and put out the lire in the court yard. He sustained burn injuries on his body and he admitted her, in the Government Hospital, Vellore.

The learned counsel for the appellant strenuously contended that except the dying declaration Ex.P.4 given to the Judicial Magistrate and the

statement Ex.P.14 given to the Head Constable, P.W.14 there is no other evidence to connect the accused with the crime and there are a lot of

discrepancies between Ex.P.4 and P. 14 which itself is sufficient to hold that no reliance can be placed on born Exs.P.4 and P. 14. According to

the learned counsel for the accused, the dying declaration Ex.P.4 had been given by Indira implicating the accused at the instigation of her faddier

P. W.5. on a careful analysis of the evidence of P. W.5, we find no substance in the above submission. P.W.5 had stated that he is living at

Amundi colony and after hearing his daughter had been admitted in the Government Pentland Hospital. Vellore, he reached the hospital and her

daughter Indira informed him she already gave statements to the Judicial Magistrate and the police official. It is therefore clear that P.W.5 went to

the Hospital much later and by the time the Judicial Magistrate P. W.9, and the Head Constable, P.W. 14 have finished recording the dying

declaration Ex.P.4 and the statement Ex.P. 14. On a careful analysis of Ex.P. 14, we are pf the view that the same contains several details, which

could not have been stated by a person on the verge of death and is not reliable.

We are also satisfied that there is absolutely no other evidence except the dying declaration Ex.P.4 to connect the accused with the crime. In our

opinion, it is unnecessary to discuss the other evidence and also the discrepancies between Ex.P.4 and P. 14 as no reliance can be placed on Ex.P.

14 as already stated. We are of the view that the case can be disposed of on a legal point submitted by the learned counsel for the accused.

Placing reliance on the decision reported in 1999 (7) sup 640 (Paparambaka Rosamma & Others v. State of Andhra Pradesh) where the case of

the prosecution entirely depended on the dying declaration of the deceased, their Lordships of the Supreme Court have observed that it is not

sufficient that the Doctor giving a certificate at the end of recording the dying declaration that the deceased was conscious. It is pointed out that

even at the start of recording the dying declaration, the Judicial Magistrate should have obtained the Certificate from the Doctor that the deceased

was not only conscious but also in a fit state of mind to give the dying declaration. It has also been held the fact that the Judicial Magistrate put

questions to the deceased and got satisfied from the answers that the deceased was conscious and was in a fit state of mind is enough. In other

words, the subjective satisfaction of the Judicial Magistrate is not sufficient to accept the dying declaration and base a conviction on the same. In

paras 8 and 9, it has been observed:-""8. The main question is as to whether she was conscious and was in a fit mental condition to make a

voluntary disclosure of the incident. Dr. K. Vishnupriya Devi (P.W. 10) who was attached to Tenali Government Hospital examined Suit. Venkata

Ramana on 4th March 1994 at 1.30 p.m. She men sent a requisition (Ex.P.9) to the Magistrate Shri K. Lakshmana Ram (P.W. 13) to record the

dying declaration of the injured. All that Dr. K. Vishnupriya Devi has stated is that injured was conscious but she has not deposed that the injured

was in a fit state of mind to make a statement. It has come on record that Smt. Venkata Ramana had sustained 90% bum injuries K. Lakshamana

Rao (P.W. 13) who recorded the dying declaration has made a note in Ex.P. 14, the dying declaration after in Ex.P. 14, the dying declaration after

putting some preliminary questions to the injured and it reads as under:-

On the basis of answers elicited from the declarant to the above question I am satisfied that she is in a fit disposing state of mind to make a

declaration.

Thereafter, the learned Magistrate proceeded to record the dying declaration At the end, Dr. K. Vishnupriya Devi (P.W. 10) has appended a

certificate saying ""patient is conscious while recording the statement"". The question that needs to be considered is as to whether the Magistrate

could have come to a definite conclusion that the injured was in a fit state of mind to make a declaration in the absence of a certificate by the

doctor certifying the state of mind that existed before recording the dying declaration''.'' In our opinion, in the absence of medical certification that

the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a

Magistrate who opined that the injured was in a fit state of mind it the time of making a declaration. It is a case of circumstantial evidence and only

circumstance relied upon by the prosecution is dying declaration.

It is true that the medical officer Dr. K. Vishnupriya Devi (P.W. 10) at the end of the dying declaration had certified ""patient is, conscious while

recording the statement"" It has come on record that the injured Smt. Venkata Ramana had sustained extensive bum injuries on her person. Dr. P.

Kobeswara Rao (P.W.9) who performed the post mortem stated mat injured had sustained 90% burn injuries. In this case as stated earlier, the

prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the dying declaration being

genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to

the dying declaration at the end by Dr. Smt. K. Vishnupriya Devi (P.W. 10) did not comply with the requirement inasmuch as she has failed to

certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says

that ""patient is conscious while recording the statement"". In view of these material omission, it would not be safe to accept the dying declaration

(Ex.P. 14) as true and genuine and was made when the injured when the injured was in a fit state of mind. From the judgments of the courts below,

it appears that this aspect was not kept in mind and resultantly erred in accepting the said dying declaration (Ex.P. 14"") as a true, genuine and was

made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not

synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the courts below.

In the present case also, the certificate of the doctor in Ex.P. 11 has been given only at the end of recording the dying declaration. It only

shows that the deceased was conscious and the fact that she was in a fit state of mind to give the dying declaration is absent. Ex.P. 11 does not

indicate that the certificate was obtained at the start of recording the dying declaration by the Judicial Magistrate. In the above circumstances, we

are bound by the law laid down by their Lordships of the Supreme Court of India. We therefore, feel that no reliance can be placed on the dying

declaration Ex.P.4 inasmuch as the doctor has not given a certificate at the start of recording dying declaration that Indira was not only conscious

but she was also in a fit state of mind to give. the dying declaration. Therefore, we conclude conviction cannot be based on the dying declaration

Ex.P.4 and the appellant is entitled to the benefit of doubt.

Accordingly, the appeal is allowed and the conviction and sentence imposed by the learned Additional Sessions Judge. Vellore in set aside.

The accused is ordered to be set at liberty forthwith, if not required in connection with any other case. The bail bonds, if any. executed by him shall

stand cancelled.

Before parting with this case, we wish to observe that the learned Public Prosecutor shall take steps to communicate the copy of the judgment

of the supreme Court reported in 1999 (7) Supr 640, cited supra, to the Home Secretary, Tamil Nadu, so that the Home Secretary, in

consultation with the Medical Counsel will issue appropriate instructions to all the Medical Officers in Tamil Nadu to give the certificate as

indicated by the Supreme Court of India at the start of recording the dying declaration by a Judicial Magistrate whenever the need arises.