Vaiyapuri vs State

S. Jagadeesan, J.—The Appellant herein had been found guilty of the offence u/s 302 of the Indian Penal Code for causing the death of his wife Masilaniani on 8.9.1988 at 8 p.m. at their residence at 27, Devendhiran Street, Singanallur and had been sentenced to undergo life imprisonment by the learned First Additional Sessions Judge, Coimbatore Circle, Coimbatore in S.C. No. 110 of 1989.

The case of the prosecution is that PW1 Vaiyapuri is the father of the deceased. On 8.9.1988 at 5 p.m., the accused returned from his work and asked for food from the deceased. The deceased replied that the rice is boiling in the stove and as soon as the rice is fully boiled, she will give him the food. Immediately, the accused retarded saying

The deceased politely replied that she is not of that type and she is true to her husband. PW1 told the accused that the deceased is not of any bad character and so, asked to take the food and carry on the family life in a better manner. The deceased offered food to the accused. While the accused was taking food, he demanded some more sambar. The deceased poured some more sambar in the plate.

At that time, PW1 heard some noise. Immediately thereafter, the deceased came to PW1. PW1 saw the clothes of the deceased had been set on fire. PW1 questioned the deceased as to who set fire on her. The deceased replied that suspecting her fidelity, her husband set fire on her. PW1 was suffering from paralytic attack and as such, he could not move about. He requested his daughter - the deceased to go out of the house, so that the on-lookers can put off the fire. The deceased also went out of the house. The deceased caught hold of the accused and the clothes of the accused were also got fire. Immediately, the accused pushed aside the deceased and went away. The neighbours, who saw the deceased with flames, made an attempt to put off the fire. The sons of PW1 - Mariappan PW2 and another came to the scene of occurrence and they also joined in putting off the fire. The deceased told them that the accused poured kerosene and set fire on her: The ambulance was brought and the deceased was taken to the hospital at Coimbatore. PW1 went to the police station at Singanallur and gave the complaint ExP1 to PW15 - the Sub-Inspector of Police.

PW15-the Sub Inspector of Police registered Ex.P1 as Crime No. 781 of 1988 u/s 307 of the Indian Penal Code. He prepared the express first information report Ex. P19. He went to the Coimbatore Medical College Hospital, Coimbatore at 10.30 p.m. and examined the deceased. He recorded the statement from her wherein she has stated that her husband poured kerosene and set fire on her. He recovered MO29 - the petti coat, MG30 - the small cloth bag under mahazar ExP20. He also examined the accused/Appellant herein at 11.35 p.m. at the same hospital. He recovered MO31 the banian from the accused under mahazar ExP21. He examined the witnesses and recorded their statements. Thereafter, at 1 a.m. on 9.9.1988, he took PW12 - the Village Administrative Officer along with him and went to the scene of occurrence. He prepared ExP16 the observation mahazar. He directed PW11 the photographer to take photos. He, then, drew the rough sketch ExP22. Thereafter, he recovered the material objects MOs 18 to 37 from the scene under mahazar Ex.P17 and Ex.P18 attested by PW12 and another. He also examined PW1. PW2. PW3 and other witnesses and recorded their statements.

After recording the first information, the deceased was sent to the Coimbatore Medical College Hospital. PW5 - the doctor admitted the accused in the hospital at 9 p.m. on 8.9.1988. He found burnt injuries on the accused between first degree and second degree. ExP3 is the accident register. He sent intimation to the police, which is ExP.4. At 9.30 p.m., PW5- the doctor admitted the deceased, who was brought by her brother PW2. The deceased was conscious. The doctor - PW5 examined the deceased and found burnt injuries all over her body including head. ExP5 is the accident register. PW5 also sent intimation ExP6 to the police. The deceased informed me doctor PW5 that her husband - the accused poured kerosene and set fire on her.

PW6-another doctor attached to the Coimbatore Medical College Hospital examined the deceased at 8.9.1988 at 9.15 p.m. The deceased was conscious and talking. Considering the nature of injuries, he sent intimation ExP7 to PW7 the Judicial Magistrate, Coimbatore for recording the dying declaration from the deceased. PW7 - the Judicial Magistrate, on receipt of ExP7, went to the hospital at 11.05 p.m. After putting questions to the deceased in order to ascertain her state of mind and having satisfied with her consciousness to answer the questions. PW7 recorded the dying declaration from the deceased in the presence of PW6 - the doctor. The dying declaration is ExP10. ExP8 is the post script given by the doctor PW6 with regard to the state of mind of the deceased.

On 9.9.1988 at 6 a.m., the deceased died due to burnt injuries. PW6 the doctor sent the death intimation ExP9 to the police. PW15 received the same at 10 a.m. and altered the first information report into one u/s 302 of the Indian Penal Code, prepared the express report ExP23 and forwarded the same to the higher authorities as well as to the Court. PW16 - the Inspector of Police received the express report and took up investigation. He held inquest between 11 a.m. and 2.30 p.m. on 9.9.1988. During inquest, he examined PWs 1.2.3 and others and recorded their statements. ExP24 is the inquest report. He sent the requisition ExP 11 to conduct post mortem through the police constable PW14.

PW8 - the doctor received the requisition ExP11 at 2.45 p.m. He commenced post mortem at 3 p.m. ExP12 is the post mortem certificate wherein he noted the following injuries:

External Injuries:

i. Superficial burns involving the face, neck and ears. Eye brows and eye lashes singed, Coloumed odema seen in both eyes. Front of the trunk entire. Back of the trunk including the (sic). Both upper limbs entire. Both lower, limbs entire including the soles. The peritoneal region and external genitalia were not involved. Epidermis peeled off in all the involved regions and the exposed (N.C.) were red in colour. Scalp hair was completely singed on the vault in scalp in the superficial burns in that region. Partly singed have seen on either side of temples, the scalp hair was not emitting smell of kerosene.

ii. Skin deep transverse incised surgical wound of 1 � 0.15 cms on the inner aspects of left ankle no other injuries seen.

He has given the opinion that the deceased would appear to have died of burns sustained by her.

PW16 arrested the accused at 3 p.m. at the hospital and the accused was remanded. Thereafter, PW16 sent ExP13 requisition to the Judicial Magistrate for sending the material objects for chemical examination. After receipt of the records, and completion of the investigation, on 2.7.1989 the charge sheet was filed u/s 302 of the Indian Penal Code against the Appellant herein. The Judicial Magistrate No. 5, Coimbatore. after perusal of the records, and having found that the offence is triable exclusively by the trial Court, has committed the case to the Sessions Division. Coimbatore. Thereafter, the First Additional Sessions Judge, Coimbatore took up the trial.

During the trial, the prosecution has examined PWs 1 to 10 and produced documents ExPl to ExP24 as well as material objects MOs 1 to 23. On behalf of the accused, DW1 his brother was examined and ExD1 was marked The learned Sessions Judge, after considering all the material evidence available on record, by his judgment dated 30.9 1989. has found the Appellant herein guilty of the offence u/s 302 of the Indian Penal Code for causing the death of his wife the deceased. Aggrieved by the same, the present appeal has been filed.

Mr Mohan Ram, learned Counsel for the Appellant took us through the evidence available on record. After completion of the reading of the material papers, he contended that the prosecution case mainly rests upon the evidence of PW1 - the only eyewitness. As there are vital discrepancies in the evidence of PW1, and in the complaint EXP1 said to have been given by him to the police. PW1 would not have seen the occurrence, and as such, he cannot be an eyewitness, as projected by the prosecution. If the evidence of PW1 is eschewed, the remaining evidence is only the circumstantial evidence, which cannot be of any assistance for the prosecution, as the same has not been corroborated with material particulars.

The learned Counsel for the Appellant further contended that the conduct of the accused in not rendering any assistance to the deceased immediately after the occurrence and going to the hospital for his treatment may not be sufficient enough to draw an adverse inference against the accused The conduct alone would not conclusively establish the guilt of the Appellant and falsify the defence put forth by him that he sustained injuries only when he attempted to put off the fire on the deceased, as she attempted to commit suicide by setting fire Even assuming that the conduct of the accused in going to the hospital and giving the statement to the doctor PW5 is against him, the same cannot be taken adversely, as the same was not put to the accused explicitly in the enquiry u/s 313 of the Code of Criminal Procedure.

He further contended that the so called dying declaration given by the deceased to PW2 her brother, PW5 the doctor as well as PW7 the Judicial Magistrate cannot be said to have been given voluntarily by her. Admittedly, PW2 her brother was present through out with her and even during the recording of ExP10 the dying declaration by PW7 the Judicial Magistrate, there is some material to show that PW2 and other relations were present. Hence, the statement or the dying declaration said to have been given by the deceased could be only tutored by them and at any rate, it cannot be of her own volition. Apart from this, considering the statement of PW1, who has stated that the deceased was unconscious immediately after the occurrence, the prosecution case with regard to the dying declaration is only embezzlement and is not proved beyond reasonable doubt. Hence, the dying declaration said to have been given by the deceased cannot be put against the accused.

It is further contended by him that the evidence of PW1 clearly shows that the police officials have recorded the statements from the deceased in the scene of occurrence and the same were not produced by the prosecution. More over, PW15 has also recorded a statement from the deceased at the hospital and that was also not produced by the prosecution. The suppression of these two vital documents would raise a grave doubt with regard to the prosecution case. Hence, if all these things are put together, it cannot be said that the prosecution has definitely established the guilt of the accused beyond any reasonable doubt and on this ground, the Appellant is entitled for the benefit of doubt and acquittal.

On the contrary, Mr. N.R. Elango, learned Counsel on the Criminal Side contended that PW1 is the only eyewitness and being the father of the deceased, he can be relied upon, especially when in the absence of any motive against PW1 The dying declaration given by the deceased to PW2 her brother. PW5 the doctor as well as PW7 the Judicial Magistrate would corroborate the evidence of PW1 and as such. PW1''s evidence cannot be rejected, merely because there is some contradictions in the evidence. Even if PW1 cannot be considered to be an eyewitness, PW1 has deposed that immediately after the occurrence, the deceased came and told him that the accused poured kerosene and sent fire on her. This will amount to a further oral dying declaration of the deceased to PW 1 and at least to that extent, the evidence of PW1 can be accepted. The non production of the statements recorded from the deceased may lead to faulty investigation and some negligence on the part of the prosecution. But this will not enure for the benefit of the Appellant, especially when there are other materials on record to connect the Appellant with the commission of the crime. Apart from this, the conduct of the Appellant in giving false explanation would also provide a connecting link with the other materials available on record to establish the guilt. Hence, it is a clear case of homicide murder by the Appellant herein.

We have carefully considered the above contentions of the learned Counsel on either side It is true, as contended by the learned Counsel for the Appellant, that the evidence of PW1 - the father of the deceased contains main discrepancies, especially with regard to his going to the police station to give the complaint and the police came to his house and recorded the statements and got his signature. Similarly, there are other discrepancies with regard to the deceased being taken to the hospital either before or after the arrival of the police There is also variation with regard to the manner of the occurrence, as, in ExP1. PW 1 has clearly mentioned that he has seen the occurrence, whereas in his deposition before the Court, he has stated that he is suffering from paralytic attack and that the deceased, with flames on her dress, came to the him where he was lying in the bed, and informed that the accused set fire on her. PW 1 requested the deceased to go out of the house, so that some on- lookers may help her in putting off the fire. Virtually, these things do not find place in ExP1.

So far as we are concerned, it is our duty to consider as to whether the discrepancies pointed out by the learned Counsel for the Appellant in the evidence of PW1 before the Court and in ExP1 are so vital to reject the case of the prosecution in toto. We could have accepted the plea of the learned Counsel for the Appellant, provided if there is no other material except the evidence of PW1 and ExP1. But, in this case, even if PW1''s evidence is to be eschewed, we are of the opinion that the other circumstantial evidence available on record would cohesively lead to the conclusion that the accused is involved in the commission of the offence. Hence, we would discuss the other circumstances available on record in order to find the culpability of the Appellant herein.

The circumstantial evidence available on record can be categories as follows:

i. the oral dying declaration given by the deceased to PW1 her father, PW2, her brother, and PW5 the doctor.

ii. the recorded dying declaration of the deceased by PW7- the Judicial Magistrate.

iii. the conduct of the accused including the defence put forth by him in his statement u/s 313 of the Procedure Code as well as by the defence witness.

So far as oral dying declaration is concerned, PW1 has stated in his evidence that the deceased Masilamani came running to his room. At that time, her clothes were in flames. He made enquiries as to what had happened. The deceased replied that her husband - the accused set fire on her, after pouring kerosene. As PW1 could not move about due to paralytic attack, he advised the deceased to go out of the house, so that some on-lookers can assist her in putting off the fire. So far as this part of the evidence of PW1 is concerned, there is absolutely no cross examination to create any doubt with regard to the veracity of the evidence of PW1.

PW2-the brother of the deceased in his deposition has stated that he was informed by his cousin Santhanam at about 7.30 p.m. on 8.9.1988 that there is some quarrel between the accused and the deceased. Immediately, he came to the house of the deceased and the accused. He saw the deceased coming out of the house with her dress on flames. Thereafter, he, along with others, put off the fire and took her to the hospital. When she was asked as to how she got fire in the dress, she informed PW12 that her husband poured, kerosene and set fire on her saying:

Immediately, when she was taken to the hospital, PW5-the doctor examined her. She has also informed to the doctor PWS that kerosene was poured and set fire on her by a known person at about 8 p.m. at her residence on 8.9.1988. ExP5 is the accident register. In the chief examination, PW5 has categorically stated that the deceased had informed him that her husband poured kerosene and set fire on her. In ExP6, he has mentioned that the deceased informed him that she was set fire by a known person, since the doctors should not mention the name of the assailant either in the accident register or in the wound certificate and they have to merely mention as known or unknown person.

Coming to the written dying declaration, PW6 the doctor deposed that he sent the requisition to the Judicial Magistrate PW7 for recording the dying declaration from the deceased. PW7 - the Judicial Magistrate received the requisition ExP7 at 11.05 p.m. and came to the hospital immediately and questioned the deceased. ExP10 is the proceedings as well as the dying declaration. The Judicial Magistrate PW7 in his evidence has categorically stated that the deceased was conscious and had understood the questions put to her. He has also stated that he recorded the statement and during the said recording, except PW6, none else was present. The doctor has given the certificate with regard to the state of mind of the deceased and the same is ExP8. On behalf of the accused, the only suggestion put to PWs6 and 7 by way of defence is that the deceased was not conscious. The said suggestion had been denied by both the witnesses. Further, it has to be taken note of that PW7 being a Judicial Magistrate, he has no axe to grind against the accused. Hence, his evidence deserves credibility in all respects.

From the above materials, it is very clear that the deceased, immediately after the occurrence, had informed PW1 - her father, and PW2 - her brother, who reached the scene of occurrence that the accused poured kerosene and set fire on her. Without any further delay, she was taken to the hospital and to the doctor PW5 also, the deceased had stated that she was set fire by her husband, after pouring kerosene. This oral dying declaration finds corroboration from the evidence of PWs 6 and 7, who deposed about the recorded dying declaration by PW7 - the Judicial Magistrate. The oral as well as recorded dying declaration are further corroborated by the evidence of PW8 - the doctor, who conducted post mortem. He has deposed that the deceased would have died of burnt injuries. Even though the dying declaration is trust worthy to find the culpability of the Appellant herein, in order to find out the other link, we draw support from the conduct of the Appellant herein.

Immediately after the occurrence, the accused went to the hospital where PW5 treated him. To PW5, he has stated that he sustained injuries because of the pouring of kerosene and setting fire by a known person at his residence at 8.30 p.m. on 8.9.1988. There is no dispute that the deceased has also sustained injuries on her body due to fire at the same time on the same day at the same place. Hence, the presence of the accused at the scene of occurrence cannot be disputed. While giving the statement u/s 313 of the Code of Criminal Procedure, he has stated that his wife - the deceased attempted to commit suicide by pouring kerosene over herself and set fire. On seeing that, he tried to put off the fire and in the course of the same, he sustained injuries If really the Appellant had any sympathy for his wife and made a sincere attempt to save her. his conduct would be to take the wife - the deceased to the hospital, immediately on seeing fire over her body. When he made an attempt to put off the fire, there is no further explanation on his part as to why he left her in lurch and went to the hospital for his treatment.

It has been contended by the learned Counsel for the Appellant that there is no explanation on the part of the police as to how they came to the scene of occurrence, especially due to the contradictory statements made by PW1 and as such, the suggestion on behalf of the accused made to PW15 - the Sub Inspector of Police that the accused went to the police station and gave a complaint and after recording the same the accused was sent to the hospital must be accepted, since it is the plausible version for the presence of the police immediately after the occurrence at the scene. Even though it had been suggested to PW 15 that the accused went to the police station and gave a complaint stating that the deceased attempted to commit suicide, there is no suggestion to PW2 or PW3 with reference to the theory of suicide. PW1 had emphatically denied the suggestion put to him with regard to the theory of suicide by his daughter.

More over, if the theory of suicide, as put forth by the defence is true, the accused would not have informed PW5 - the doctor, who examined him immediately after the incident that some known person had poured kerosene and set fire on him. This statement of the accused to PW5 would believe the suggestion of the defence with regard to the suicide by me deceased.

Now, we come to the evidence let in by the accused by way of defence. He examined DW1 his own brother. A reading of the evidence of DW1 as admitted by the learned Counsel for the Appellant is of no use with regard to the incident in question. What DW1 says is that on an earlier occasion, the deceased attempted to commit suicide by pouring kerosene and before ever she set fire by herself, it was found out and she was saved. On seeing the deceased with flames, PW2 - the brother of the deceased was informed. However, it is to be noticed that PW2, in his cross examination, was not questioned with regard to the alleged earlier incident, as spoken to by DW1. Even if we take the suggestion put to PW1, it is totally different, because, in the suggestion put to PW1, it is categorically stated that PW2 was informed about the earlier attempt to commit suicide on the part of the deceased, while she poured kerosene on herself and set fire, the fire was put off and she was saved. Even this suggestion was not put to PW2. Hence, the defence theory is totally an after thought and unsupported by any material.

So far as the document produced by the accused Ex. D1 is concerned, it is a discharge certificate of the accused from the hospital, wherein it is stated that he got injuries due to me fire, when he attempted to put off fire, while his wife had set fire for herself. This document came into existence on 12.10.1988 at 6 p.m. i.e. nearly four days after the occurrence. The doctor PW6, who issued ExD1 - the discharge certificate, in his cross examination, has stated that such a statement has been recorded on the information given by the accused - the Appellant. When the Appellant immediately after the occurrence, has stated to the doctor PW5, who treated him that he sustained injuries, when a known person poured kerosene and set fire on him, the present version in ExD1 cannot be accepted as true. Admittedly, there is a false explanation by the Appellant herein ExD1 with regard to the injuries sustained by him. This along with the conduct of failure to give any assistance to the deceased to take her to the hospital or to put off the fire in the occurrence place itself would throw suspicion with regard to the bona fide conduct of the Appellant herein.

In fact, in a case of circumstantial evidence, the conduct of the accused would also provide a supporting link with the other available materials. In a recent judgment in the case of State of Tamilnadu v. Rajendran 2000 SCC Crl. 40, it has been held by the Supreme Court as follows:

In a case of circumstantial evidence when an incriminating circumstances is put to the accused and the said accused either offers no explanation or offers an explanation, which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This proposition fully applies to the circumstances of the present case. On the circumstances enumerated above which have been established by the prosecution, we have no hesitation to come to the conclusion that the charge of murder has been proved beyond reasonable doubt as against the accused Respondent.

In this case, especially when the evidence of PW5 the doctor established the statement of the accused regarding the injuries sustained by him at his residence at 8.30 p.m. on the date of occurrence, it goes without saying that the accused was present at the scene of occurrence. In fact, this statement of the accused, when put to him, along with the available corroborative evidence, he has come forward with faulty explanations, which do not find any support from the available material. He also did not produce any material to support his defence theory. In the absence of any plausible explanation on the part of the accused with regard to his conduct, we are inclined to accept the other circumstantial evidence available on record i.e. the oral dying declaration of the deceased to PW1 her father, PW2 her brother and PW5 the doctor supported by the recorded dying declaration by PW7 the Judicial Magistrate coupled with the certificate issued by the doctor PW6. We are of the opinion that the prosecution has established the guilt of the Appellant herein, even though the evidence of PW1 cannot be relied upon in toto.

Accordingly, the findings, conviction and sentence awarded by the lower Court are confirmed and the appeal is dismissed. Since the Appellant is on bail, the bail bonds executed by him are directed to be cancelled and the trial Court is directed to secure his presence to serve the remaining period of sentence.