Pandiyan vs State

S. Nagamuthu, J.—The appellant is the first accused in S.C. No. 102 of 2010, on the file of the learned Sessions Judge, Karur. The second accused is the father of the first accused. The appellant/first accused stood charged for the offence under Section 302 I.P.C. and the second accused stood charged for the offence under Section 302 read with 109 I.P.C. By Judgment, dated 10.06.2011, the Trial Court acquitted the second accused, but convicted the first accused under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for two months. Challenging the said conviction and sentence, the appellant is before this Court, with this Criminal Appeal.

The case of the prosecution, in brief, is as follows:

(i) The deceased in this case was one Mrs. Tamilselvi. P.W. 1 is the mother and P.W. 2 is the brother of the deceased. P.W. 3 is the relative of the deceased. The first accused is the husband of the deceased. The first accused and the deceased were residing at Chinnakinathupatti Village. The deceased was a deaf and dumb by birth. But, she could convey any message by means of gestures. P.W. 1 and P.W. 2 have claimed that they could understand the message conveyed by the deceased by means of gestures. The first accused was not happy with the matrimonial life as the deceased was deaf and dumb, with whom it was difficult for him to convey anything. According to the case of the prosecution, therefore, the accused decided to do away with the deceased. Accordingly, on 25.11.2009, at about 09.00 a.m., when the deceased was at her house, on the instigation made by the second accused, the first accused poured kerosene on the body and set fire to her. The deceased was immediately taken to the Government Hospital at Karur.

(ii) P.W. 1 and P.W. 2 were informed by somebody that the deceased had been admitted in the hospital for fever. At 11.00 a.m. on 25.11.2009, P.W. 1 and P.W. 2 had gone to the hospital. P.W. 3 had also incidentally come there. The deceased was at that time found always weeping. At that time, it is alleged that the deceased by means of gestures, conveyed to P.W. 1 and P.W. 2 that it was this accused who poured kerosene and set fire to her. Thereafter, P.W. 1 went to the Police Station and made a complaint. P.W. 14, the then Sub Inspector of Police, received intimation from the hospital on 26.11.2009. On reaching the hospital, P.W. 14, found the deceased unable to speak and therefore he recorded the statement of P.W. 1 under Ex. P. 1. On returning to the Police Station, he registered a case in Crime No. 374 of 2009 under Section 307 I.P.C. Ex. P. 13 is the First Information Report. Then, he forwarded both the documents to the Court and handed over the Case Diary to the Inspector of Police for investigation.

(iii) P.W. 16 took up the case for investigation on 27.11.2009. He proceeded to the place of occurrence and prepared an Observation Mahazer and a Rough Sketch in the presence of witnesses. On the same day at 08.00 a.m., he arrested both the accused in the presence of P.W. 6 and P.W. 7. On such arrest, the first accused gave a voluntary confession, in which, he disclosed that he had hidden a plastic kerosene can at his house. In pursuance of the same, he produced the same from his house and the same was recovered under a mahazer. While undergoing treatment, the deceased succumbed to the injuries. Therefore, he altered the case into one under Section 302 I.P.C. and forwarded the Alteration Report under Ex. P. 20 to the Court. Then, he handed over the Case Diary to the Deputy Superintendent of Police for investigation and also made a request to the Sub Collector, Karur to hold inquest on the body of the deceased.

(iv) P.W. 15, the then Sub Collector, Karur, held inquest on the body of the deceased on 28.11.2009. He examined P.W. 1 to P.W. 3 and few more witnesses and submitted a Report under Ex. P. 14 on 07.12.2009.

(v) P.W. 17, the then Deputy Superintendent of Police, conducted investigation. On 28.11.2009, he proceeded to the place of occurrence and verified the correctness of the Observation Mahazer, earlier prepared by the Sub Inspector of Police. The body was forwarded for postmortem.

(vi) P.W. 10 and P.W. 11 conducted autopsy on the body of the deceased. They found that there were 80% of injuries on the body. They opined that the death was due to the burn injuries. Ex. P. 10 is the Postmortem Certificate. On completing the investigation, P.W. 17 laid charge sheet against the accused.

Based on the above materials, the Trial Court framed charges as detailed in the first paragraph of this Judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as, 17 witnesses were examined and 21 documents were exhibited, besides 2 Material Objects.

Out of the said witnesses, P.W. 1 and P.W. 2 have stated that while in the hospital, the deceased by means of gestures, conveyed to them that it was this accused who poured kerosene and set fire to her. P.W. 3 has stated that in the hospital, the accused was very much present and he informed the others, who were present there, that he had committed a mistake in his life. P.W. 4 to P.W. 9 have turned hostile and they have not supported the case of the prosecution in any manner. P.W. 10 and P.W. 11 are the doctors, who conducted autopsy on the body of the deceased and have given opinion that the death was due to the burn injuries. P.W. 12 is the Constable, who carried the dead body to the hospital for postmortem. P.W. 13 is the Head Clerk of the Judicial Magistrate's Court, who forwarded the hyoid bone for examination, which reveals that there was no fracture. P.W. 14 has spoken about the registration of the case. P.W. 15 is the Sub Collector, Karur, who held inquest on the body of the deceased. He has spoken about the same. P.W. 16 is the Inspector of Police, who investigated the case initially and altered the same, after the death of the deceased. P.W. 17 has spoken about the investigation done by him and the final report filed.

When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. However, they did not choose to examine any witness on their side nor to mark any document.

Having considered all the above materials, the Trial Court convicted the appellant alone, as detailed in the first paragraph of this Judgment, and sentenced him accordingly. That is how, the appellant is before this Court with this Criminal Appeal.

We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.

Admittedly, in this case, the prosecution relies only on the evidences of P.W. 1, P.W. 2 and P.W. 3 to prove that it was this accused who poured kerosene and set fire to the deceased. Further, admittedly the deceased was deaf and dumb by birth and therefore she was not in a position to speak. P.W. 1 and P.W. 2 have claimed that by means of gestures, while in the hospital, the deceased conveyed to them that it was, this accused, who poured kerosene and set fire to her. P.W. 1 and P.W. 2 have stated that they were in a position to understand as to what was conveyed by the deceased. It may be true that being the mother and brother of the deceased, they would have been in a position to understand as to what had been conveyed by the deceased by means of gestures. But, that alone would not make the statement reliable. In every dying declaration, it is the duty of the prosecution to prove that the deceased was in a fit mental state to make a statement. Here, in this case, at the time, when P.W. 1 and P.W. 2 were by the side of the deceased and when the deceased had allegedly made such a statement by means of gestures, whether she was in a fit mental state of mind to make such a statement by means of gestures, is the crucial question. Unfortunately, the medical records pertaining to the deceased, have not been produced by the prosecution. The doctor, who treated her, has also not been examined. Therefore, it is not clear as to whether the deceased would have been first of all conscious to make such a statement by means of gestures. Assuming that she was conscious, whether she would have been in a fit mental state to make such a statement by means of gestures is an yet another fact to be proved by the prosecution. It is not explained to the Court as to why a Magistrate was not requested to record the statement of the deceased. Had it been done, the learned Magistrate would have recorded the statement of the deceased, with the help of an expert. In such an event, this Court would have been in a better position to know whether the deceased was really in a fit of state of mind to make a statement or not. The prosecution has failed in its duty to discharge these functions. Therefore, it is very difficult for this Court to act upon the evidences of P.W. 1 and P.W. 2 that the deceased made a statement by means of gestures that it was, this accused, who poured kerosene and set fire. It is also noticeable that P.W. 14 has stated that when he visited the hospital, he found the deceased in unconscious state and unable to speak. This also gives strength to the case of the defence that the deceased would not have been in a position to make a statement at all.

P.W. 3 has stated that while in the hospital, the accused told the others that he had committed a mistake in his life. Even assuming that the accused made such a statement, from that it cannot be readily inferred that the accused confessed to the guilt. He only stated that he committed some mistake in his life. Whether that mistakes relate to the cause of the death of the deceased or not, is also not clear. Further, the conduct of the accused in taking the deceased to the hospital and being by her side, is inconsistent with the theory of his guilt.

It is the settled law that in a case based on circumstantial evidence, the circumstances relied on by the prosecution, should be proved beyond reasonable doubts and such proved circumstances should have a close link with each other, thereby making out a complete chain unerringly pointing to the guilt of the accused and there should not be any other hypothesis which will be inconsistent with the guilt of the accused. In this case, the prosecution has not proved the circumstances against the first accused beyond reasonable doubts and thus the prosecution has failed to prove the case against the first accused. Therefore, the conviction and sentence imposed on the first accused by the Trial Court is liable to be set aside.

In the result, the Criminal Appeal is allowed; the conviction and sentence imposed on the appellant/first accused by the learned Sessions Judge, Karur, made in S.C. No. 102 of 2010, dated 10.06.2011, is set aside and the appellant/first accused is acquitted. The fine amount, if any, paid by him, shall be refunded to him. Bail bond executed by the appellant/first accused and the sureties shall stand terminated.