State Of Tamil Nadu vs Karuppasamy

State of Tamil Nadu ....Appellant

Versus

Karuppasamy ....Respondent

JUDGMENT

DR. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of the Division Bench of

the Madras High Court directing acquittal of the respondent (hereinafter

referred to as the `accused'). Learned Sessions Judge Tirunelveli, had

found the accused guilty of offence punishable under Section 302 of the

Indian Penal Code, 1860 (in short the `IPC') and sentenced him to

imprisonment for life.

2. Prosecution version as unfolded during trial is as follows:

Kamalam is the deceased in this case. She is the daughter of P.W.2.

P.Ws 1, 5 and 6 are the sons of P.W.2 and incidentally, they are the brothers

of Kamalam. The accused is the husband of Kamalam. Even prior to their

marriage, on account of their acquaintance, Kamalam conceived. Thereafter,

their marriage took place. The family of the accused wanted a sum of

Rs.4,000/- to be given at the time of their marriage, which was accordingly

provided by P.W.1. Six months after their marriage, Kamalam gave birth to

a child. The accused had developed an illicit intimacy with a lady called

Parvathi. Since Kamalam objected to it, there were quarrels between the

accused and Kamalam often. Around 10.00 a.m. on 12.9.1990, P.W.2 was in

her house. She came to know that her daughter was in flames. Immediately,

P.W.2 went to the house of Kamalam. At that time, P.W.2 found some burn

injuries above the hip of her daughter. Kamalam was made to rest on the

pial of her house. PWs.1 and 5 are masons by profession. On that day, they

were working in the house of the brother in law of the accused. P.W.2 sent

word to them about the incident. Immediately, P.Ws 1, 5, 6 and another

person went to the house of Kamalam, where they found Kamalam lying on

2 the pial with burn injuries. The accused was also by her side at that time.

When Kamalam was asked as to how she came to sustain the burn injuries,

she replied that, "She objected to her husband's relationship with Parvathi;

the accused asserted that he would continue to have such relationship.

Whenever she objected to her husband's relationship with Parvathi, the

accused used to threaten her stating that, he would pour kerosene and set

fire to her; she told her husband that she is prepared even to die for the sake

of her husband severing his relationship with Parvathi; immediately the

accused picked up a kerosene tin; poured kerosene on her head and set fire

to her". P.W. 3 & 4 did not support the prosecution. A taxi was arranged for

and in that taxi, Kamalam was transported to the Government Hospital at

Palayamkottai. P.Ws 1, 2 and others accompanied Kamalam to the hospital.

P.W.8 is the Medical Officer in the Government Hospital at Tirunelveli. At

12.50 p.m. on 12.9.1990, Kamalam was brought before him and he was

informed that she had come to sustain the burn injuries at the hands of her

husband, by his pouring kerosene and setting fire to her. Kamalam was

admitted as an inpatient in the hospital. PW 8 found extensive burn injuries

on the person of Kamalam. He sent Ex.P4 to the police. Ex.P5 is the

intimation sent by him to the Magistrate to record the dying declaration of

Kamalam. P.W.11 is the Trainee Magistrate, who reached the said hospital

3 at 2.00 p.m. on that day. Doctor Kanchana was by the side of Kamalam at

that time. She certified that Kamalam was conscious and oriented to give a

statement. He examined Kamalam and recorded her statement. Ex.P11 is the

dying declaration of Kamalam. In Ex.P.11, Kamalam had put her left thumb

impression. P.W.12, on receipt of Ex.P.4/intimation, went to the hospital,

examined Kamalam and recorded a statement from her. The statement so

recorded from Kamalam was read over to her and after she affirmed the

same, her left thumb impression was obtained on it. Ex.P.1 is that

complaint. P.W.12, over telephone, sent an intimation regarding the crime to

the Investigating Police Station. Accordingly, a Head Constable from the

Investigating Police Station came to the police out-post; collected Exs. P.1

and P.4 and handed over the same to P.W.13. P.W.15 is the Sub-Inspector

of Police. He collected Exs.P.1 and P.4 from P.W.13 and registered it in

Crime No.400/90 for the offence punishable under Section 307 I.P.C. He

sent the material records to the Court as well as to the higher officials.

Ex.P.12 is the F.I.R. He handed over the material records to the Inspector of

Police personally. Despite treatment given to Kamalam, she died at about

7.50 p.m. on 15.9.1990. P.W.9 is the Medical Officer, who sent Ex.P.6 to

the police outpost at Tirunelveli. Ex.P7 is the case sheet. On receipt of

Ex.P.6, the police out-post at Tirunelveli, passed on that message to the

4 Investigating Police Station over telephone. Ex.P.13 is the death intimation,

which was handed over at the Investigating Police Station. At 9.00 p.m. on

12.9.1990, after receiving a copy of Ex.P.12, P.W.17 went to the scene; at

10.00 p.m. on that day, in the presence of P.W.7 and another, he prepared

Ex.P.2/observation mahazar and Ex.P.17/plan. At 10.30 p.m. on that day,

from the scene of occurrence, P.W.17 recovered a plastic can containing

kerosene; a match box and a partly burnt turkey towel (M.Os 1 to 3), under

Ex.P.3 attested by witnesses. P.W.17 examined P.Ws. 1, 2 and 7 and

recorded their statements. Further witnesses were examined by him on

13.9.1990 and their statements were recorded. On receipt of the death

intimation at 7.50 p.m. on 15.9.1990 from P.W.15, P.W.17 altered the

section of offence into one under Section 302 I.P.C. and prepared the altered

printed F.I.R. Ex.P.18 is the altered F.I.R. It was sent to the Court as well as

to the higher officials. As death had taken place within 1-1/2 years after the

marriage of the accused with the deceased/Kamalam, a copy of the F.I.R.

was sent to the Revenue Divisional Officer, having jurisdiction. P.W.16 is

the Revenue Divisional Officer, who on receipt of the copy of the F.I.R.

went to the hospital and conducted inquest over the dead body of the

deceased between 11.00 a. m. and 1.00 p. m. on 16.9.1990. Ex.P.14 is the

inquest report. During inquest, P.W.16 examined P.Ws. 1, 5, 6 and another

5 and recorded their statements. P.W.17, arrested the accused on 17.9.1990.

The Doctor who conducted post mortem report was of the opinion

that the deceased died due to burn injuries. After completion of

investigation charge sheet was filed. The accused pleaded innocence and,

therefore, the trial was held. In his examination under Section 313 of the

Code of Criminal Procedure, 1973 (in short the `Code') the accused took the

stand that he was not in the house when the occurrence took place. When he

returned from work place he found his wife with burn injuries and

immediately he rushed her to the hospital. The prosecution relied on two

sets of evidence; one related to the oral evidence of PWs 1, 2, 4, 5 & 6.

Admittedly they were not eye witnesses. They have been examined to prove

what the deceased declared when she was alive and was fighting for a life,

about the cause of her death. The next set of evidence is primarily the dying

declaration Ex.P.11 recorded by (PW 11), the Magistrate. The Doctor who

was attending the deceased as an indoor patient was by the side of the

patient all through. PW 11's evidence indicated that she was conscious,

oriented and was in a fit condition to give the statement. Relying on the

aforesaid evidence the Trial Court found the accused guilty.

6 In appeal the High Court was of the view that PW 11 should have

inquired from the deceased as to whether she was in a fit condition to make

the statement. The doctor has not been examined but at the foot of the

dying declaration her opinion was recorded. High Court found that the

evidence of PWs. 2, 3, 4, 5 & 6 about the dying declaration was not

believable. It also discarded evidence of PW 1 on the ground that he was

one of the brothers of the deceased. The Doctor, PW8 had recorded that the

deceased's condition was dexterous and the level of consciousness would

depend upon several factors. Reference was made to the evidence of PW 9

to conclude that the evidence of PW 8 was not free from doubt. The High

Court noted that, the FIR (Exh.P12) disclosed that the husband brought the

intimation from the hospital to the police. Because of the aforesaid factors,

the High Court considered the prosecution version to be full of suspicious

circumstances and, as noted above, the acquittal was directed.

3. In support of the appeal, learned counsel for the appellant submitted

that the analysis made by the High Court is clearly erroneous. No reason

has been assigned to discard the dying declaration. The criticism of the High

Court that PW 11 entirely went by the version of the Doctor, should not

7 have been treated as a factor to discard the testimony of PW 11. There are

certain other factual erroneous conclusions also.

4. The respondent has not appeared in spite of service of notice.

5. The conclusions of the High Court that PW 11 should not have gone

by what the doctor i.e. Dr. Kanchana said and should have made

independent enquiries, is to say the least an absurd conclusion. The High

Court has recorded as follows:

"His evidence shows that Doctor Kanchana certified that Kamalam was conscious oriented and was in a fit condition to give the statement. Doctor Kanchana was present by the side of PW 11 throughout. It appears from the evidence of PW 11 that he was totally carried away by the opinion of doctor Kanchana. His evidence in chief does not show that he enquired Kamalam to find out as to whether she was conscious oriented and was in a fit condition to give the statement."

6. It is not understood as to what the High Court meant by observing

that PW 11 should have found out from the deceased as to whether she was

conscious, oriented and was in a fit condition to give the statement. The

doctor who was attending to the deceased has clearly certified that she was

8 in a fit condition to make the statement. The Doctor has made the following

observation:

"Certified that the patient Smt. Kamalam was conscious at the time of taking the dying declaration and taken in my presence."

7. The High Court was of the view that the evidence of PW 11 shows

that her satisfaction was a subjective satisfaction solely on the basis of the

opinion of the Doctor. There is nothing wrong in such a satisfaction being

arrived at because the doctor is an appropriate person to certify on that

aspect.

8. In addition, we find that the High Court recorded the finding that the

accused brought the intimation from the hospital to the police station which

is Ex.P 12, the FIR. The factual position is clearly to the contrary. The

accused did not take the intimation because PW 12 who was working as

Grade I constable at the out post police station attached to the medical

college hospital received Ex. P 4 intimation from the hospital on 12.9.1990

at 1.15 PM.

9. According to PW 12, after receiving the intimation he went to the

hospital, examined the deceased who was undergoing treatment for burn

9 injuries. The deceased gave the statement regarding the occurrence which

was recorded as Ex. P 1 and he sent the intimation through the phone to the

police regarding the substance of the statement. The High Court has also not

assigned any reason as to why the declaration made before PWs 1, 2, 4, 5 &

6 was unreliable. The Trial Court had analysed their evidence and come to

the conclusion that the deceased made statement before them as to the cause

of death clearly implicating the accused. Similarly the evidence of the

doctor, PW 8 has been discarded without even indicating reason for doing

so.

10. Above being the position the High Court's judgment is clearly

unsustainable and is set aside. The respondent shall surrender to custody

forthwith to serve the remainder of sentence. The appeal is allowed.

.................................................J. (Dr. ARIJIT PASAYAT)

...............................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, November 20, 2008

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