Sambandam and Others vs State

A. Selvam, J.—The convictions and sentences dated 13th day of March 2007 passed in Sessions Case No. 204 of 2006 by the District and Sessions Court (Mahila Court), Cuddalore are being challenged in the present Criminal Appeal.

The case of the prosecution is that due to previous animosity that existed in between the accused and deceased Vijaya, on 3.2.2003 at about 7.30 p.m. in Pillaiyar Koil Street, Sithirasurur Village, while the deceased has been in her house, all the accused have scolded her by using filthy words and also attempted to murder her and due to their overt acts, she doused kerosene and set fire on her person and thereby sustained burn injuries. On 9.2.2003 at about 4.30 p.m. she passed away. After occurrence on 3.2.2003, the husband of the deceased by name Ravanan as de facto complainant has given a complaint and the same has been registered by the concerned Sub Inspector of Police (P.W.13) in Crime No. 161 of 2003. The complaint given by the de facto complainant has been marked as Ex.P.1.

On receipt of Ex.P.1, the Investigating Officer, viz., P.W.17 has taken up investigation, examined connected witnesses and also made arrangements to conduct autopsy on the body of the deceased. Accordingly, P.W.15 Dr.Gomathi has conducted autopsy and she found the following external and internal injuries.

"Injuries:

1) A sutured wound over (R) knee about 4 c.m in length

2) A sutured wound (L) ankle 4 c.m in length. Burns present on face, chest, upper abdomen, both upper hips and back. No scalp hair showed., Eyelids closed. Tongue inside the mouth. Throat - No ribs. Heart = normal -chambers contain fluid blood. Lungs-pale. Hyoid -intact. Abdomen -stomach pale contains 100 ml of watery fluid. Liver, Spleen, Kidney pale. Intestines clustered with 8c.m Bladder empty. Uterus normal. Head - No skull bone. Neck - intact. Brain pale."

The post-mortem report has been marked as Ex.P.9. After transfer of P.W.17, his successor in office, viz., P.W.18 has continued investigation and after completing the same, laid a final report on the file of Judicial Magistrate Court No. 1, Cuddalore and the same has been taken on file in P.R.C. No.36 of 2005.

The Judicial Magistrate No. 1, Cuddalore, after considering the facts that the offences alleged to have been committed by the accused are triable by Sessions Court, has committed the case to the Court of Sessions, Cuddalore Division and the same has been taken on file in Sessions Case No. 204 of 2006 and thereafter made over to the trial court.

The trial court, after hearing arguments of both sides and upon perusing the relevant records has framed the first charge against all the accused under Section 294(b), second charge against them under section 506(ii), third charge against them under section 306 of the Indian Penal Code and the same have been read over and explained to them. The accused have denied the charges and claimed to be tried.

On the side of the prosecution, P.Ws.1 to 18 have been examined and Exhibits P.1 to 10 have been marked.

When the accused have been questioned under Section 313 of the Criminal Procedure Code, as respects the incriminating materials available in evidence against them, they denied their complicity in the crime. No oral and documentary evidence have been let in on the side of the accused.

The trial court, after hearing arguments of both sides and upon perusing the relevant evidence available on record, has found all the accused guilty under Section 294(b) of the Indian Penal Code and sentenced them to undergo 3 months Rigorous Imprisonment and also imposed a fine of Rs. 200/- upon each of them with usual default clause. They have also been found guilty under section 306 of IPC and sentenced to undergo 5 years rigorous imprisonment and also imposed a fine of Rs. 1,000/- upon each of them with usual default clause. Against the convictions and sentences passed by the trial court, the present Criminal Appeal has been preferred at the instance of all the accused as appellants.

The learned counsel appearing for the appellants/accused has meticulously contended that in the instant case, occurrence has taken place on 3.2.2003 and the specific contention put forth on the side of the prosecution is that on the same day, the deceased has herself doused kerosene and set fire on her and subsequently, she has been admitted in Mahatma Gandhi Hospital, Kirumambakkam, Puducherry State and no materials are found place with regard to the said aspect and further the de facto complainant has given the complaint in question on 3.2.2003 itself, but the same has been registered next day at about 9 a.m and no explanation has been given on the side of the prosecution. Further, the said aspect has also been stated by P.W.11, son of the deceased and the trial court, without considering the infirmities found on the side of the prosecution, has erroneously found all the accused guilty under section 294(b) and 306 of Indian Penal Code and therefore, the convictions and sentences passed by the trial court are liable to be interfered with.

Per contra, the learned Additional Public Prosecutor has contended that in the instant case, even though some independent witnesses have become hostile, the de facto complainant is none other than the husband of the deceased and he has been examined as P.W.1. Sisters, brother and son of the deceased have been examined as P.Ws.8 to 11 and all of them have consistently stated in their evidence about the occurrence taken place on 3.2.2003 at about 7.30 p.m and the trial court, after considering the enormous evidence available on record, has rightly found all the accused guilty under sections 294 (b) and 306 of IPC and therefore, the convictions and sentences passed by the trial court do not require interference.

Basing upon the rival submissions made on either side, the Court has to analyze as to whether the prosecution has established the guilt of all the accused punishable under sections 294(b) and 306 of IPC.

The first and foremost contentions put forth on the side of the appellants/accused is that on 3.2.2003, all the accused have berated the deceased by using filthy words and also tried to murder her and due to their overt acts, on the same day, she doused kerosene and set fire on her and subsequently she has been admitted in Mahatma Gandhi Hospital, Kirumambakkam, Puducherry, but for proving the same, no documents have been filed.

At this juncture, the Court has to look into the evidence given by P.W.13. It is an admitted fact that P.W.13 has registered the complaint in Crime No. 161 of 2003 and his specific evidence is that on 4.2.2003, he has gone to the said hospital and also made arrangements to record dying declaration from the then injured (deceased). As rightly pointed out on the side of the appellants/accused, no documents have been filed on the side of the prosecution with regard to admission of the then injured in the said hospital and also no attempt has been made on the side of the prosecution to record dying declaration from her.

Since the above documents are not available on the side of the prosecution, the Court cannot come to a conclusion that only due to the overt acts alleged to have been committed by all the accused, the then injured has doused kerosene and set fire on her. Further, it is an admitted fact that the occurrence has taken place on 3.2.2003 and only on 9.2.2003, she passed away. Since she passed away on 9.2.2003, definitely she would have given a dying declaration, but as stated earlier, on the side of the prosecution, no documents have been filed with regard to admission in Mahatma Gandhi Hospital, Kirumambakkam, Puducherry, and also with regard to attempt to record dying declaration from the then injured. Since the prosecution has burked all those documents, the court cannot automatically come to a conclusion that only due to overt acts alleged to have been committed by all the accused, the then injured has doused kerosene and set fire on her.

Even assuming without conceding that such occurrence has taken place on 3.2.2003, the Court has to further analyze the case of the prosecution. It is an admitted fact that all independent witnesses, viz., P.Ws. 2 to 7 have become hostile witnesses and only interested witnesses have been examined on the side of the prosecution. Of course, it is true that some of the interested witnesses would say that on 3.2.2003, all the accused have come to the house of the deceased and scolded her by using filthy words and that itself would not be sufficient to come to a conclusion that the then injured has doused kerosene and set fire on her and since she passed away on 9.2.2003, even though the occurrence has taken place on 3.2.2003.

Even at the risk of repetition, the Court would like to point out that the prosecution has not produced the important documents for the purpose of showing the condition of the then injured, while she has been admitted in Mahatma Gandhi Hospital. Since the prosecution has burked all those documents and also the attempts made to record dying declaration, it is made clear that the genesis of the case of the prosecution is highly doubtful. Since the genesis of the case of the prosecution is highly doubtful, the Court can eschew Ex.P.1 complaint and also the testimonials given by the prosecution witnesses. The trial court, without considering the vital lapses found on the part of the prosecution, has casually invited convictions and sentences against the appellants/accused under sections 294 (b) and 306 of IPC. Therefore, the convictions and sentences passed by the trial court are not factually and legally sustainable and altogether, present Criminal Appeal is liable to be allowed.

In fine, this Criminal Appeal is allowed. The convictions and sentences passed in Sessions Case No. 204 of 2006 by the trial court are set aside. The appellants/accused are acquitted. Bail bonds, if any executed by the appellants/accused shall stand cancelled. Fine amounts, if any, paid by them are ordered to be refunded.