Subramaniam vs State

M. Chockalingam, J.—The appellant, who stood charged as A-1 along with another arrayed as A-2, in S.C. No. 85 of 2004 under Sections 498(A), 302 read with 34 and 201 of I.P.C. and Section 4 of the Dowry Prohibition Act, found guilty under Sections 302, 498(A) and 201 of I.P.C. and Section 4 of Dowry Prohibition Act and awarded life imprisonment along with a fine of Rs. 1,000/- and default sentence and 1 year Rigorous Imprisonment under Sections 302 and 201 of I.P.C. respectively and 3 months Rigorous Imprisonment each u/s 498(A) of I.P.C. and Section 4 of Dowry Prohibition Act, has challenged the judgment of the Assistant Sessions Judge, Mahila Court, Trichy, while A-2 was acquitted of the charges.

The short facts necessary for the disposal of this appeal can be stated thus:

(a) P.W.1 is the father of the deceased Saroja. He was living with his family at Nadukodiyampalaym, Manalmedu. Five years prior to the occurrence, she was given in marriage to the first accused. The second accused is the father of the first accused. Sufficient seervarisai along with money and jewels were given at the time of the marriage. The first accused was a drunkard, and he used to put the deceased to cruel treatment and also demand money. Just before the occurrence, he was demanding Rs. 1 lakh for the purpose of getting a job, and he informed the father-in-law P.W.1, that he could not live with her, if the money is not paid, and he (P.W.1) can see only her dead body. On the date of occurrence i.e., 13.1.2001 at about 6.30 P.M., P.Ws.2 and 3 who are the neighbours, found the first accused coming out of the house, locking the door, pouring kerosene and setting fire to the hut. Both of them heard the distressing cry of the deceased from inside the hut. They tried their best along with others to quench the fire. In the meanwhile, the accused ran away from the place of occurrence. P.W.1 was informed about the occurrence, and P.W.1 reaching the spot, was able to see only the dead body of his daughter. Then, he proceeded to the respondent Police Station and gave Ex.P1, the report, on the strength of which, P.W.14, the Sub Inspector of Police, who was on duty at that time, registered a case in Crime No. 10/2001 under Sections 302 and 498(A) of I.P.C. The First Information Report was prepared, which is marked as Ex.P18, and the same was sent to Court.

(b) On receipt of the copy of the F.I.R., P.W.15, the Inspector of Police of the said Circle, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P19. He also gave an information to the R.D.O. concerned. P.W.12, the Revenue Divisional Officer, came to the spot and recorded the statement of the witnesses. Further, he made an inquest on the dead body of Saroja in the presence of witnesses and panchayatdars, as a result of which Ex.P11, the inquest report, came into existence. Thereafter, the dead body was sent to the Government Hospital along with a requisition, Ex.P6, for the purpose of autopsy.

(c) On 13.1.2001 at 7.15 P.M., the first accused met the Village Administrative Officer, P.W.8, and gave an extra-judicial confession which is marked as Ex.P4. The report prepared by P.W.8, is marked as Ex.P5.

(d) P.W.11, the Assistant Surgeon, attached to the Government Hospital, Musiri, on receipt of the said requisition, conducted autopsy on the dead body of Saroja and issued a postmortem certificate, Ex.P7. The Doctor has opined that the deceased would appear to have died of hypovolemic shock followed by cardiac arrest due to severe burns (extensive burns).

(e) Pending the investigation, A-2 was arrested on 14.1.2001, and he was sent for judicial remand. So far as A-1 was concerned, he was also arrested and produced before the Court. On completion of investigation, the Investigator filed the final report.

(f) The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 15 witnesses and also relied on 19 exhibits and 12 material objects. The accused examined one Thangavel, a neighour of the same village, as D.W.1. No document was marked on their side. The lower Court heard the arguments advanced, took the view that the prosecution has proved the case so far as A-1 was concerned, found him guilty under Sections 302, 201 and 498(A) of I.P.C. and Section 4 of the Dowry Prohibition Act and awarded imprisonment as referred to above, while acquitted A-2 of all the charges. The aggrieved A-1 has brought forth this appeal challenging the judgment of conviction and sentence.

Advancing his arguments on behalf of the appellant, the learned Counsel would submit that in the instant case, the prosecution has not proved its case in any way; that the charge has been framed as if the first accused poured kerosene on his wife, since deceased, and also set fire on her; that P.Ws.2 and 3, according to the prosecution, were eyewitnesses; that according to them, all of them saw the accused coming out of the house, locking the doors, pouring kerosene on the hut and setting fire, and thus, the evidence of P.Ws.2 and 3 is thoroughly contradictory and inconsistent to the prosecution case; that as regards P.Ws.2 and 3, according to P.W.3, on the date of occurrence at about 6.15 P.M., she was in her shop situated in the second street, and from the shop, the occurrence could not be witnessed; that if to be so, from the shop, she could not have come to the place to see the accused either coming out of the house or pouring kerosene and also setting fire, and hence, her evidence was of no use to the prosecution case.

Added further the learned Counsel that so far as the evidence of P.W.2 was concerned, his evidence was also not available for the prosecution; that according to him, he came forward to see the accused bolting the door in the front, and he was able to see only the distressing cry; that under the circumstances, he could not have seen the occurrence; that under the circumstances, the evidence of P.Ws.2 and 3 as put forth before the trial Court, is thoroughly unreliable and could not be accepted; but, the trial Court has relied on their evidence; that the evidence what was available for the prosecution, was that of the evidence of P.W.8, the Village Administrative Officer, according to whom, A-1 appeared before him within a short span of an hour and gave an extra-judicial confession wherein he has narrated the incident; that it is highly artificial; that when the occurrence has taken place at 6.15 P.M., the first accused met the Village Administrative Officer, P.W.8, at 7.15 P.M. and narrated the incident; that it is further to be pointed out that what is found in the alleged confessional statement is not consistent with the prosecution case; and that all would go to show that it is not a reliable evidence.

The learned Counsel would further contend that though the occurrence has taken place on 13.1.2001, the F.I.R. came to be registered by the respondent police within a short span of an hour; but, the FIR has reached the Court on 22.1.2001; that such huge and inordinate delay would be fatal to the prosecution case, which remained unexplained; that this would go to the root of the prosecution case; that in short, it can be stated that there is no evidence for the prosecution; that in the absence of any evidence, the case of the prosecution should have been rejected outright; but, the lower Court has failed to do; that all these aspects have got to be considered by this Court, and the appellant is entitled for an acquittal.

The learned Counsel would further add that on the same evidence, A-2 has been acquitted, since the lower Court was not prepared to accept the prosecution case in respect of A-2; that all the doubts and the discrepancies found, are equally applicable to A-1 also, who is the appellant before this Court; that in such circumstances, the judgment of the lower Court has got to be set aside; and that the appellant is entitled for an acquittal and the appeal has to be allowed.

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

In the instant case, it is not a fact in controversy that one Saroja, the wife of A-1 and the daughter of P.W.1, died in an incident that took place at about 6.15 P.M. on 13.1.2001 in the house of A-1. It is also not in controversy that during the relevant time, A-1 and his wife Saroja, who had no issues, were living in the same thatched hut. According to the prosecution case, it was A-1 who poured kerosene on her and set fire, and he fled away from the place of occurrence. In order to substantiate this fact, the prosecution relied on the direct evidence of P.Ws.2 and 3. As rightly pointed out by the learned Counsel for the appellant, when the evidence of P.Ws.2 and 3 is scrutinized carefully, it is doubtful whether P.Ws.2 and 3 could have seen the occurrence or A-1 at the place. Even though their evidence is rejected, this Court is of the considered opinion that the prosecution is able to establish the case put forth against A-1, the appellant. According to the prosecution, A-1 appeared before the Village Administrative Officer, P.W.8, and has given an extra-judicial confession at about 7.15 P.M. The Village Administrative Officer has immediately recorded the confessional statement and took him to the Police Station. The confessional statement is marked as Ex.P4. Now, before accepting an extra-judicial confession in a given case, the Court has to apply three tests; firstly, to whom the extra-judicial confession was given; secondly, whether the evidence of the person to whom the extra-judicial confession was given, inspired the confidence of the Court; and thirdly, whether the extra-judicial confession alleged to have been given, is consistent to the prosecution case. If these three tests are applied in the instant case, this Court is fully satisfied.

Admittedly, P.W.8, the Village Administrative Officer, belonged to the same place. It is not the case of the appellant that he was not acquainted to him. The extra-judicial confession is also recorded within a short span of an hour. After pouring kerosene and setting fire, A-1 with the prickly feeling, had gone over and informed him about the incident, which has been recorded. The evidence of P.W.8 has been marshaled by the lower Court properly. After careful scrutiny of the evidence of P.W.8, this Court is thoroughly convinced with his evidence, and it has got to be accepted. That apart, when the confessional statement recorded by the Village Administrative Officer, is read out, it is exactly in consonance and consistent with the prosecution case. It has got to be stated that even assuming that the evidence of P.Ws.2 and 3 cannot be accepted, the Court can sustain a conviction on the extra-judicial confession, which is given to P.W.8. In the instant case, the further point urged by the learned Counsel that the F.I.R. has reached the Court on 22.1.2001 cannot be accepted. A perusal of Ex.P1 and the printed F.I.R. would clearly indicate that it has reached the Court the very next day. Under the circumstances, this Court is of the considered opinion that it is a case where it was A-1 who poured kerosene and also set fire on her. Besides this, the case of the prosecution stood fully corroborated by the evidence of the medical person. According to the Doctor, she died out of hypovolemic shock followed by cardiac arrest due to severe burns. Thus, the prosecution has proved that it was A-1 who committed the crime. Since no evidence was available against A-2, the trial Court has acquitted him. At the same time, the acquittal of the co-accused cannot be a reason for acquittal of the other accused. In a given case, if the evidence against a particular person is available, a conviction can be sustained, according to the settled principle of law.

The next line of contention is with regard to the act of the accused. According to the learned Counsel for the appellant, the act would come under the exception for provocation. He also took the Court to that part of the confessional statement that there was a wordy quarrel between the appellant and the deceased preceding the occurrence. This Court is of the opinion that what is found therein cannot either be taken as quarrel or give any provocation for which the husband would kill his wife. Under the circumstances, this Court is of the view that the act of the accused in pouring kerosene and setting fire on her will, no doubt, attract the penal provisions of murder and none else. In such circumstances, this Court has to sustain the conviction in that regard. Hence, the conviction and sentence imposed by the trial Court, u/s 302 of I.P.C. are sustained.

As far as the charges under Sections 498(A) of I.P.C. and Section 4 of the Dowry Prohibition Act are concerned, this Court has to necessarily set aside the conviction and sentence imposed by the trial Court, since except the evidence of P.W.1, nothing is available. Apart from that, the detailed enquiry conducted by the R.D.O., would go to show that there was no dowry harassment at all. Accordingly, the conviction and sentence imposed u/s 498(A) of I.P.C. and Section 4 of the Dowry Prohibition Act, are set aside, and the appellant is acquitted of those charges.

As regards the charge u/s 201 of I.P.C., the Court has to sustain the conviction and sentence imposed by the trial Court, for the simple reason that after pouring the kerosene and setting fire on her, he came out of the house, bolted the door and escaped, and thus, he was about to screen the evidence as put forth by the prosecution. Hence, the conviction and sentence imposed by the Court below in that regard, are confirmed.

Accordingly, this criminal appeal is partly allowed.