State by Public Prosecutor, Madras vs Kamaraj and Packiam

A.K. Rajan, J.—This is an appeal filed by the State against the order of acquittal. A1 was charged for the offence u/s 304(b) IPC and A2

was charged for the offence u/s 304(B) r/w 109 I.P.C.

On the side of the prosecution, PWs.1 to 18 were examined and Exs.P 1 to P 22 were marked. On the side of the defence, no witnesses were

examined, but documents Ex.D1 to D7 were marked.

The case of the prosecution is that A1 is the son of A2. A1 was married to Sumathi, a relative of A2 on 27.11.1987. P.W.5 is the mother of the

deceased Sumathi. She is a resident of Salem. PW6 is the father of the deceased. A1 is a Homoeopathy Doctor. At the time of marriage, A1 was

working in the Government Hospital, Nagapattinam; immediately after marriage, they were residing at Ponnammapet for two months and

thereafter, they went to Nagapattinam; Pws.5 and 6 gave all necessary household articles (including silver articles) to A1 and the deceased and

they started living separately; whenever A1 visited their house, A1 would not stay there overnight on the ground that he was not permitted to stay

in their house by his parents; the deceased used to tell her father that her husband and mother-in-law demanded money, motor cycle, Fridge, T.V.

Diamond jewelleries etc.; A1 also made similar demands; before the death of Sumathi, at least 5 or 6 times, such a demand was made; A2 also

used to complain that they were not given sufficient household articles when her daughter was married to a Doctor bridegroom. The deceased

gave birth to a child after two years; just one month prior to the death of her daughter, she told that A1 demanded motor cycle and they promised

that they will purchase it after some time; her daughter also wrote a letter stating that there was a quarrel between herself and A2. On 10.7.1990

between 10.00 and 11.30 p.m. the deceased Sumathi committed suicide by pouring kerosene and setting herself fire because of the attitude of A1

and A2. When they received the information that their daughter died, P.Ws.5 and P.W.6 came to Nagapattinam and they saw the body at the

mortuary; nobody informed as to how she sustained burn injuries; A1 informed them that a quarrel arose between them and thereafter she poured

kerosene and set fire to herself.

PW2, Doctor Chandramohan attached to Nagapattinam Government Hospital was on duty on 11.7.1990 in the Casuality Ward. The deceased

Sumathi was brought by her husband Kamaraj(A1) with burn injuries around 00.20 hours. The deceased told the Doctor that at about 11.30 p.m.

on 10.7.1990, while she was cooking, her saree caught fire and she sustained injuries. At that time, she was conscious and her pulse rate was 26.

Her blood pressure was not record able; and her breathing was accompanied with sound; heart beating was normal. Burn injuries were found on

the head, entire face, neck, chest, stomach, backside and both hands; the percentage of the injuries sustained by the deceased was found to be

100%. Thereafter, she was admitted in the hospital. Ex.P4 is the copy of the Accident Register. He had sent an intimation to the Judicial

Magistrate for recording her dying declaration. He had also sent information to the Police Station.

PW1, Head Constable attached to Nagapattinam Town Police Station, received the information from the hospital around 12.55 hours on

11.7.90. He went to the hospital and recorded statement from Sumathi. At that time, one Doctor Baskar was also with her.

P.W.12 the Judicial Magistrate recorded the dying declaration Ex.P.13 in which she has stated that there was quarrel between her and A.1; she

went inside the room, closed the doors and poured kerosene and lit the fire.

P.W.15, the Sub Inspector of Police, Nagapattinam registered a case in Crime No.284 of 1990 u/s 174 Cr.P.C. On 11.7.1990 at 9.30 a.m.,

on receiving the death memo, he informed the Revenue Divisional Officer about this.

P.W.11, the Revenue Divisional Officer, received the information about the death of Sumathi and went to Nagapattinam Government Hospital.

He conducted inquest on the body of the deceased at the mortuary. During inquest, he examined A1, A2, P.Ws.5 and 6 and other witnesses. He

prepared the report Ex.P11. He handed over the documents to the Police. Ex.P12 is the statement given by P.W.6 to him and Ex.D1 is the

statement given by P.W.5. He was of the opinion that the death was due to dowry harassment.

P.W.16, Inspector of Police, took up the investigation in Crime No.284 of 1990 and went to the house of A1 at about 10.30 a.m. and

prepared an observation mahazer, Ex.P15 in the presence of the witnesses. He also prepared a rough sketch, which is marked as Ex.P22. He

made arrangements to take photographs of the scene of occurrence. Thereafter, he seized M.Os.1 to 7 from the scene of occurrence at 11.55

p.m. under a mahazar. He examined one Dhakshinamurthy. Thereafter, he converted the offence u/s 306 IPC and the Deputy Superintendent of

Police took up the further investigation.

P.W.4 conducted the autopsy on the body of the deceased Sumathi. Ex.P7 is the Post-mortem certificate. According to her, the skin was

charred from head to foot due to burns, a small surgical wound was found over the medial aspect of the left ankle. Hair was partly burnt and was

loose. Eye lids were closed, jaws clenched, tongue inside the mouth and teeth complete. There was no discharge from the ears, nose or mouth. No

abnormalities were seen over external genitalia. Lungs: Rt.450 gms, left 400 gms. Surface greyish in colour. Petechial Hemorrhages over the

surface. On dissection: lungs congested and exudes blood stained fluid. Hyoid bone intact. Stomach: empty. Small intestine: Distended with gas.

No food particles. Large instestine: Distended with gas bladder- empty. Uterus: Normal in size. Cavity empty. Pelvis: No fracture. Skull: No injury

or fracture of skull bones. Membranes congested Brain- 1200 gms congested. According to her the deceased died due to extensive burn injuries.

P.W.3 is the Doctor working in the Nagapattinam Government Hospital. He examined A1 at 10.30a.m. on 11.7.1990 for certain burn injuries;

A1 told him that he sustained burn injuries when he tried to put out the fire and to rescue his wife. He found burn injury measuring 1 c.m. X 1 c.m.

on the left fore head and another injury measuring about "" x "" c.m.; a burn injury on his nose measuring about 3 x 1 c.m. was found; he found two

blisters on the left fore hand; two burn injuries were found on the left ear and as those injuries were very small he has not taken the measurement;

the hair was found burnt on the forehead and on the left side of the head. A1 was treated as out patient and the injuries sustained by him were

simple in nature. Ex.P5 is the copy of the Accident Register and Ex.P6 is the wound certificate.

P.W.17 was in-charge of Deputy Superintendent of Police during that period. He received the FIR u/s 306 IPC. On 12.7.1990, he examined

the witnesses P.Ws. 2, 4, 8, 9, 12, 14 and other witnesses and recorded their statements. On 13.7.1990, he arrested accused 1 and 2. On

14.7.1990, he examined Pws.5 and 6. Thereafter, he handed over the investigation to the regular Deputy Superintendent of Police. PW18 filed

charge sheet u/s 304-B read with 109 IPC.

The trial Court convicted accused 1 and 2 of the charges framed against them and imposed a sentence of seven years rigorous imprisonment.

On appeal filed by the accused, the appellate Court found that they are not guilty of the charges and acquitted both the accused. Against the order

of acquittal, the present appeal has been filed by the State.

The learned Additional Public Prosecutor submits that the first appellate Court erroneously acquitted the accused on the ground that the

charges against the accused have not been proved beyond reasonable doubt. He further submitted that the evidence of P.Ws.5 and 6 is sufficient

to prove that there was dowry harassment right from the date of her marriage; that is also corroborated by the letters Exs.P19 and P20 written by

the deceased to P.Ws.5 and 6. But Exs.P19 and P20 do not reveal any dowry demand; In Ex.P19, the deceased has asked to send the grinder at

the earliest; In Ex.P20, PW5 was asked by the deceased not to take active part in fixing the marriage for A1''s brother. Hence these letters do not

prove the dowry demand. The mere asking for a grinder by the daughter from her mother cannot be said to be a dowry demand made by A1 or

A2.

The learned Additional Public Prosecutor further referred to the evidence of a neighbour P.W.13, who has stated that one week prior to her

death, the deceased came to her house with a basket and when she enquired, the deceased had told her that there was a quarrel with the husband

and thereafter she had come; PW13 advised her to go back to their house; then A1 came to her house and took the deceased to his house.

Therefore, the learned Additional Public Prosecutor argued that if it is taken along with the evidence of P.Ws.5 and 6, it proves that there was a

dowry harassment by A1. He further pointed out that P.W.7 who is residing near the house of A1, A2 and the deceased, has stated that she came

to know from others that there was a quarrel between the deceased and A1. Further both P.Ws.7 and 13 have stated that on 10.7.1990 at about

11.30 p.m., the accused A1 came out and called P.W.7 and they went to the house of the deceased and found the deceased Sumathi in a critical

condition in the ""hall"". But in the dying declaration before the Judicial Magistrate, the deceased has stated that she ""went inside the room and

closed the door from inside"" and set fire. The dying declaration does not appear to be true, since the body was found in the hall; not inside any

room. Therefore, it cannot be relied upon.

The learned Additional Public Prosecutor further submitted that even from the evidence of P.W.13, it is clear that there was a quarrel between

the deceased and A1. If his evidence is taken along with the evidence of P.Ws.5 and 6, it is proved that there was a quarrel between A1 and the

deceased only on account of non payment of dowry. Therefore, the trial Court has rightly convicted the accused; but, the first appellate Court

erroneously acquitted the accused on the ground that the offence has not been proved, and hence, the order of acquittal is liable to be set aside.

The learned counsel appearing for the respondents submitted that absolutely no evidence is available to prove the demand of dowry by any of

the witnesses. From the letters written by the deceased Sumathi as well as from the evidence before the Court, there is no material to conclude that

there was demand of dowry by A1 or A2. Asking grinder from the parents by the daughter does not come under the demand of dowry by A1 and

A2. Exs. D3 and D7, the letters written by the deceased to A1 as well as to P.W.6, do not show that there was any demand of dowry by A1 or

A2. Even Ex.P17 and P18, the letters written to the deceased by A1 or Exs.P19 and P20 written by the deceased to PW6 do not prove that

there was any demand of dowry. Even P.W.1 has stated that when he examined the deceased and recorded her statement when one Dr.Baskaran

was also with him. But that Doctor was not examined as a witness. Therefore, the alleged statement recorded by P.W.1 cannot be relied upon.

Further, she argued that the accused cannot be found guilty only on the basis of the uncorroborated testimony of P.Ws.5 and 6. Therefore, the

lower appellate Court was right in acquitting the accused as the charge against the accused were not proved beyond reasonable doubt.

In the dying declaration recorded by the Magistrate, the deceased has stated that there was a quarrel between the deceased and A1 that she

went inside the room closed the door from inside and poured kerosene and set herself on fire. But, the observation mahazer does not mention

anything about any of the doors found broken open. Further, P.Ws.7 and 13 have stated that they saw the deceased lying with burn injuries in the

''hall''. Therefore, the contents of dying declaration appear not true as contended by the learned Additional Public Prosecutor. When she was

examined by Pw2 the Casuality Doctor at about 12.20 a.m., she has stated that ""her saree caught fire accidentally while she was cooking at her

house at 11.30 p.m."" When examined by PW1 the deceased has stated that

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PW1 has entered about the recording of this statement in Ex.P10 General Diary maintained in the Police Station. In Ex.P4, it is stated that B.P.

could not be recorded and ""the pulse rate was 26"". When the pulse rate was 26, it is very difficult to accept that the deceased gave a statement to

PW2. When the deceased suffered from 100% burns and the pulse rate was 26 a doubt arises as to whether it would be possible for the deceased

to give a statement. Unfortunately the case sheet maintained in the hospital also was not marked. The extent of burn is stated but the degree of burn

injuries not stated by any of the witnesses nor is recorded in any of the documents filed before the Court. There is not even a Court question. The

Sessions Judges/Assistant Sessions Judges, who try the cases are duty bound to clarify such vital aspects, when not brought in evidence.

But as contended by the learned counsel for the respondent/accused, the Judicial Magistrate has recorded a dying declaration of the deceased;

she has stated in that, that she poured kerosene and set fire to herself. In that she has not stated anything about the demand of dowry either by A1

or A2. Therefore, the counsel argued that the deceased has committed suicide, but it is not a dowry death and hence the acquittal by the

lowerAppellate Court was legal and valid. Hence, the appeal has to be dismissed.

Only when the suicide is coupled with dowry harassment, it will amount to an offence u/s 304(B) IPC. But in this case, there is no evidence to

corroborate the evidence of P.Ws. 5 and 6; their evidence do not get corroborated from the letters written by the deceased. Therefore, on the

basis of the uncorroborated testimony of P.Ws.5 and 6, it may not be safe to find the accused guilty of the charge u/s 304-B IPC. Further, this is

an appeal against acquittal. The lower appellate Court after considering the oral and documentary evidence has come to the conclusion that the

prosecution has not proved the charges beyond reasonable doubt. That conclusion can not be said to be not plausible. Under the circumstances,

this Court cannot interfere with the conclusion reached by the lower appellate Court.

It cannot be ignored that A1 was working as Assistant Medical Officer, Homoeopathy in Nagapattinam Government Hospital; he brought his

wife with burn injuries to the hospital; his colleagues recorded statement from the injured; this coupled with the factum of not marking the case

sheet creates a very strong doubt that the full facts were not brought before the Court. But on the basis of such doubt alone the accused cannot be

found guilty in this case.

In such cases of death due to burn injuries it is imperative that the case sheets are marked in evidence; when the prosecution fails to mark the

case sheets it is equally imperative for the trial Judge to call for the case sheet and mark as an exhibit. As observed by the Supreme Court in

Gurbachan Singh Vs. Satpal Singh and others,

justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing

justice, according to law"".

In order to arrive at a correct picture in such cases the marking of case sheets are absolutely necessary. In this case in the absence of case sheets

of the patient, the Court is not able to ascertain the actual condition of the injured. The doctor has not even stated the degree of burns sustained by

the deceased. The fact that the accused is also Doctor working in the same hospital the suspicion becomes very serious. Yet the Court at this stage

is unable to do anything more in this case except to decide on the evidence already marked. Therefore, the conclusion arrived at by the trial Court

cannot be modified.

In the result, the appeal against acquittal fails and hence dismissed.