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Judgment
C. Nagappan, J.—The appellant Sheik Mohammed is the sole accused in Sessions Case No. 61/2008, on the file of the Principal District
and Sessions Judge, Puducherry and he has preferred this appeal challenging the conviction and sentence imposed on him by judgment dated
19.3.2010, in the case. For the sake of convenience, in this judgment, the appellant will be referred to as accused. Originally, charge u/s 302 IPC
was framed and subsequently, additional charge u/s 306 IPC was framed against the accused. Learned Principal Sessions Judge found the
accused guilty of the charge u/s 302 IPC and convicted and sentenced him to undergo Life Imprisonment and to pay a fine of Rs. 1,000/-, in
default to undergo one year Rigorous Imprisonment, and acquitted him of the additional charge u/s 306 IPC.
To prove the charges, the prosecution examined P. Ws. 1 to 19 and marked Exs. P1 to P41 and M. Os. 1 to 6.
The prosecution case is briefly stated as follows:
P.W. 6 Sheik Akbar and P.W. 7 Zennibee are the father and mother of deceased Kulap Banu respectively and they are residents of Kalpakkam.
P.W. 4 Shakila is their relative. Kulap Banu was given in marriage to the accused Sheik Mohammed, who knew Hindi only, six months prior to
occurrence, and they started residing in the first portion of the first floor of the house at Door No. 8, Mariamman Koil Street, Thattanchavady,
Puducherry, belonging to P.W. 8 Natarajan, on rental basis. P.W. 2 Rani, P.W. 3 Babu, P.W. 5 Gloria and P.W. 9 Ponsingh are their neighbours.
Accused Sheik Mohammed was working as a Cook Master in Arcokat Hotel, Puducherry and he used to consume alcohol and quarrel with his
wife Kulap Banu. For three days prior to occurrence, the accused was insisting Kulap Banu to go to her parental home on the ground that his
earning was not sufficient to run the family. On 22.6.2008, accused Sheik Mohammed returned from work at 1.00 A.M. At that time, P.W. 2
Rani, P.W. 3 Babu and P.W. 5 Gloria heard the screaming from the house of Kulap Banu and they went and saw Kulap Banu sitting in the corner
of the room with burns all over the body. They enquired her; but, she did not reply. When they brought her down using the stairs in order to go to
hospital, she told them that her husband Sheik Mohammed poured kerosene on her and set her ablaze. Accused Sheik Mohammed came there
and took Kulap Banu in the auto to JIPMER Hospital, Puducherry. P.W. 1 Dr. Ngopelo Keviechu, Casualty In-charge, examined Kulap Babu at
2.10 A.M. on the same day, and found burns scale all over her body and sent Ex. P1 intimation to the police. He gave opinion as to the burns as
dangerous. Ex. P2 is the Medico-legal Examination Report issued by him.
P.W. 16 Head Constable Ragunath, attached to D Nagar Police Station, Puducherry, received the intimation over phone through Constable
Ravindranath and proceeded to JIPMER Hospital and recorded the statement of Kulap Banu between 2.30 A.M. and 3.30 A.M. on the same
day, in the presence of P.W. 1 Dr. Ngopelo Keviechu. Ex. P32 is the statement. He returned to the Police Station and registered a case in Crime
No. 232/2008 u/s 309 IPC and prepared Ex. P31, First Information Report, and despatched it to the Court. He proceeded to the occurrence
place at 4.30 A.M. and found the occurrence house locked, and then he returned.
P.W. 4 Shakila came to know about the incident at 5.45 A.M. on the same day, through Parveen and Santhi and she telephonically informed the
same to P.W. 6 Sheik Akbar, the father of Kulap Banu. P.W. 6 Sheik Akbar, P.W. 7 Zennibee and other family members went to JIPMER
Hospital and found Kulap Banu with burns. Kulap Banu informed her parents that accused Sheik Mohammed poured kerosene and set fire on her
and she tried to put out the fire by pouring water and the neighbours came to her rescue and accused Sheik Mohammed took her in the auto to the
hospital and on the way, he told her to reveal it as suicide during police enquiry; otherwise, he would push her down from the auto and kill her.
P.W. 16 Head Constable Ragunath took P.W. 15 Photographer Kannan and reached the occurrence place at 9.30 A.M. on 22.6.2008, and
photographs were taken. Ex. P27 series are photographs and Ex. P28 series are its negatives. He prepared Ex. P17 Observation Mahazar, and
Ex. P33 Crime Details Form, in the presence of P.W. 8 Natarajan and P.W. 9 Ponsingh. Ex. P18 is the rough sketch drawn by him. He seized
M.Os. 1 to 4 burnt and unburnt clothes, from the occurrence place under Ex. P16 mahazar, in the presence of same witnesses. He examined the
witnesses and recorded their statements. The Sub Inspector R. Senthil Kumar sent Ex. P22 requisition, to the Judicial Magistrate for recording the
dying declaration of Kulap Banu. P.W. 12 Judicial Magistrate A. Dhanasekaran recorded the dying declaration of Kulap Banu in JIPMER
Hospital at 12.05 P.M. on 22.6.2008, and Ex. P23 is the dying declaration. Exs. P3 and P4 are the consciousness certificates given by P.W. 1
Dr. Ngopelo Keviechu.
P.W. 18 Sub Inspector A.R. Djearamane took up further investigation and on the basis of Ex. P23 dying declaration, altered the case into one u/s
307 IPC and sent Ex. P37 alteration report, to Court. He proceeded to JIPMER Hospital and examined P.W. 1 Dr. Ngopelo Keviechu and
recorded his statement. He went to the place of occurrence and examined P.W. 2 Rani and another and recorded their statements. On 24.6.2008,
he proceeded to JIPMER Hospital and examined Kulap Banu and recorded her statement in the presence of P.W. 17 Dr. Ajit Agarwal. Ex. P36
is the statement and Ex. P34 is the endorsement made by P.W. 17 Dr. Ajit Agarwal in Ex. P36. P. W18 Sub Inspector A.R. Djearamane
proceeded to the occurrence place and examined P.W. 3 Babu and another and recorded their statements. On 25.6.2008, he examined P.W. 4
Shakila and P.W. 5 Gloria and another and recorded their statements. He arrested accused Sheik Mohammed on 26.6.2008 at 4.45 A.M., near
Thattanchavady Regulated Sales Centre. Accused Sheik Mohammed gave confession statement in Hindi, and it was translated in Tamil by Hindi
knowing person P.W. 11 Jegan, and the same was recorded by P.W. 18 Sub Inspector A.R. Djearamane in the presence of P.W. 10 Village
Administrative Officer Ponnusamy and Chinnarasu. Ex. P19 is the admissible portion. Accused Sheik Mohammed took them to the occurrence
place and took and produced M.O. 5 kerosene can, and M.O. 6 match box, and he recovered it under Ex. P20 mahazar, in the presence of same
witnesses. He sent the accused for remand. On 27.6.2008, he examined P.W. 10 VAO Ponnusamy and recorded his statement. On 28.6.2008,
he examined Chinnarasu and recorded his statement. On 29.6.2008, he received intimation from JIPMER Hospital that Kulap Banu died on
28.6.2008 at 4.45 P.M. and altered the case into one u/s 302 IPC and sent Ex. P38 alteration report, to the Court.
P.W. 19 Inspector M. Angappan took up investigation and proceeded to the mortuary at JIPMER Hospital on 30.6.2008 at 9.00 A.M., and sent
requisition to the Tahsildar for conduct of inquest. P.W. 15 Photographer Kannan took photographs of the body. Ex. P29 series are photographs
and Ex. P30 series are its negatives. P.W. 14 Deputy Tahsildar P. Rajendran conducted inquest on the body of Kulap Banu and prepared Ex.
P39 inquest report. He gave Ex. P26 report.
P.W. 13 Dr. M.J.E. Ambrose conducted autopsy on the body of Kulap Banu at 1.00 P.M. on 30.6.2008, in the JIPMER Hospital, Pondicherry
and found superficial deep burns partly covered with purulent exudate involving part of the scalp, face, neck, the entire trunk including both axillae
and the external genitalia, but excluding the breasts and the epigastrium, both upper limbs excluding the finger tips, both lower limbs excluding the
soles of the feet and the area of the skin involved by burns was 83%. He has opined that the deceased died of septicemia due to burns and issued
Ex. P25 medico-legal postmortem examination report.
On 1.7.2008, P.W. 19 Inspector M. Angappan examined P.W. 11 Jegan and recorded his statement. On 7.7.2008, he examined P.W. 13 Dr.
M.J.E. Ambrose and recorded his statement. He seized Ex. P8 marriage certificate of the couple, Ex. P9 nikha receipt, Ex. P10 marriage photo,
Ex. P11 passport size photo of accused and Ex. P12 passport size photo of Kulap Banu, handed over by P.W. 6 Sheik Akbar, under Ex. P13
seizure form. On 10.7.2008, he examined P.W. 14 Rajendran and P.W. 15 Kannan and recorded their statements. On 1.8.2008, he examined
P.W. 16 Head Constable Ragunath and recorded his statement. He completed the investigation on 8.8.2008, and filed the final report.
The accused was questioned u/s 313 of Cr.P.C., and he denied the testimonies of witnesses as false. No oral or documentary evidence was let
in on his side.
The trial Court found the accused guilty of the charge u/s 302 IPC and imposed sentence of life imprisonment and sentence of fine. Challenging
the conviction and sentence, the accused has preferred the present appeal.
It is admitted that Kulap Banu is the daughter of P.W. 6 Sheik Akbar and P.W. 7 Zennibee and the accused Sheik Mohammed, who was
employed as a Cook Master in a Hotel at Pondicherry, married her eight months prior to occurrence and they started living in a rented portion in
the upstairs of the house belonging to P.W. 8 Natarajan of Thattanchavady, Puducherry. P.W. 2 Rani, P.W. 3 Babu and P.W. 5 Gloria were living
in different portions of the same house. The prosecution case is that the accused Sheik Mohammed poured kerosene on Kulap Banu during the
occurrence and put her ablaze by lighting a match stick, resulting in her death. Nobody witnessed the occurrence and the case rests on
circumstantial evidence.
According to the neighbours, P.W. 2 Rani, P.W. 3 Babu and P.W. 5 Gloria, at about 1.00 A.M. on the occurrence night, they heard the
screaming of Kulap Banu in her house and when they went there, they found Kulap Banu sitting in a corner of the room with burns all over the
body and when they enquired, Kulap Banu told them that her husband Sheik Mohammed, on account of her informing her parents, poured
kerosene and set fire on her and he brought an auto and took Kulap Banu to the hospital and she succumbed to burn injuries.
Kulap Banu was examined in Casualty Ward of JIPMER Hospital at about 2.10 A.M. on 22.6.2008, by P.W. 1 Dr. Ngopelo Keviechu and he
found burns scale all over the body except anterior part of abdomen and he has stated that accused Sheik Mohammed informed him that his wife
tried to commit suicide by pouring kerosene and she also endorsed the same. Ex. P2 is the Medico-legal Examination Report issued by him. Ex.
P1 is the intimation sent by him to the police.
On receiving the intimation, P.W. 16 Head Constable Ragunath reached JIPMER Hospital at 2.40 A.M. on 22.6.2008, and recorded Ex. P32
statement of Kulap Banu, and after returning to Police Station, registered a case u/s 309 IPC. Ex. P31 is the First Information Report. Kulap Banu
in Ex. P32 statement, has stated that her husband Sheik Mohammed insisted her to go back to her parental home and aggrieved over the same,
she poured kerosene from the stove and put her self ablaze and she was admitted by her husband in the hospital.
On requisition, P.W. 12 Judicial Magistrate A. Dhanasekaran went to JIPMER Hospital at 12.05 P.M. on 22.6.2008, and recorded the
statement of Kulap Banu in the presence of P.W. 1 Dr. Ngopelo Keviechu. Exs. P3 and P4 are the certificates issued by the said Doctor stating
that Kulap Banu was conscious throughout the recording of the statement. Ex. P23 is the statement given by Kulap Banu to the Judicial Magistrate,
in which she has stated that 4 or 5 days prior to occurrence, she spoke to her mother over phone and on coming to know of the same, her
husband Sheik Mohammed quarrelled with her and the quarrel continued for 2 or 3 days and at the time of occurrence, again her husband Sheik
Mohammed quarrelled with her and poured kerosene on her by telling her to die and set her ablaze by lighting a match and she ran outside and
poured water.
P.W. 4 Shakila on coming to know of the occurrence, went and saw Kulap Banu in JIPMER Hospital and according to her, Kulap Banu told
her that her husband Sheik Mohammed at the time of occurrence, poured kerosene and set her ablaze. The parents of Kulap Banu P.W. 6 Sheik
Akbar and P.W. 7 Zennibee, have stated that Kulap Banu informed them over phone that her husband Sheik Mohammed used to consume
alcohol and pick up quarrel and beat her regularly and P.W. 4 Shakila informed them about the admission of their daughter Kulap Banu in
JIPMER Hospital and they rushed there and found Kulap Banu with extensive burn injuries and when they enquired, Kulap Banu told them that
her husband Sheik Mohammed poured kerosene and set her ablaze in the house. P.W. 18 Sub Inspector A.R. Djearamane has stated that the
offence in the case was altered into one of Section 307 IPC and he took up further investigation and went to JIPMER Hospital on 24.6.2008, and
examined Kulap Banu in the presence of P.W. 17 Dr. Ajit Agarwal and recorded Ex. P36 statement, given by her, and P.W. 6 Sheik Akbar
attested the same. Ex. P34 is the certificate issued by P.W. 17 Dr. Ajit Agarwal stating that Kulap Banu was conscious and oriented while giving
statement. In the said statement, Kulap Banu has stated that her husband Sheik Mohammed at the time of occurrence, quarrelled with her and set
her ablaze by pouring kerosene and while taking her to the hospital in the auto, he threatened and directed her to state to the police that she tried
self-immolation by pouring kerosene and hence she stated so to the police; but, however, she stated the truth before the Judicial Magistrate.
The main argument of the learned Counsel appearing for the appellant/accused, is that the deceased Kulap Banu had made various dying
declarations and in Ex. P32 the first dying declaration, had completely absolved the accused and it should be preferred as it is the most genuine
statement made by the deceased and the accused is entitled for an order of acquittal.
Per contra, learned Additional Public Prosecutor (Pondicherry) submits that the said first dying declaration is based on falsehood and was
made under the threat of her husband, namely accused Sheik Mohammed, and Ex. P23 dying declaration, made before the learned Judicial
Magistrate, and Ex. P36 statement, made before the Sub Inspector, were recorded after due certification by the Doctor and they are duly
corroborated by other prosecution evidence and the deceased herself has provided the reason as to why she had made the first dying declaration,
which was factually incorrect, and Ex. P23 dying declaration, is the true dying declaration of the deceased given before the learned Magistrate, and
the accused has rightly been convicted for the offence of murder and the appeal is liable to be dismissed.
It is settled law that in the case of multiple dying declarations, each dying declaration has to be considered independently on its own merit, so
as to appreciate its evidentiary value and one cannot be rejected because of the contents of the other and it is the duty of the Court to consider
each one of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs Sudhakar Vs. State of Maharashtra,
Ex. P32 is the first dying declaration made by Kulap Banu to P.W. 16 Head Constable Ragunath in JIPMER Hospital. In the subsequent dying
declaration in Ex. P36, Kulap Banu has stated about the wild threat made by her husband Sheik Mohammed while taking her to hospital in the
auto, pursuant to which she was compelled to give statement to the police that she tried to immolate herself. It is also relevant to point out that
P.W. 1 Dr. Ngopelo Keviechu in his cross-examination, has stated that Kulap Banu was brought by her husband Sheik Mohammed to the
Casualty Department of JIPMER Hospital and he informed him that his wife tried to commit suicide by pouring kerosene and he recorded the
statement in the case sheet. In such circumstances, it is clear that Ex. P32 statement, has been made by Kulap Banu under duress made by her
husband, while he was by her side at the time of her giving statement. Hence no reliance could be placed on P32 statement, since it was not a
voluntary one.
Ex. P36 is the third dying declaration of Kulap Banu given to P.W. 18 Sub Inspector A.R. Djearamane. Neither the signature nor LTI of
Kulap Banu is found in it and the attesting signature of P.W. 6 Sheik Akbar alone is found in it and hence it cannot be safely relied upon.
The remaining is Ex. P23 dying declaration, recorded by P.W. 12 Judicial Magistrate A. Dhanasekaran in JIPMER Hospital and the Doctor
had certified that she was in a fit condition to make the declaration. Exs. P3 and P4 are the certificates about her fitness, given by the Doctor in Ex.
P23 declaration. It is needless to say that Ex. P23 dying declaration, is of high probative value, since it was recorded by the learned Judicial
Magistrate. In the said declaration, Kulap Banu has categorically stated about the pouring of kerosene by her husband Sheik Mohammed on her
and setting her ablaze at the time of occurrence. The said dying declaration is more probable and looks natural to us.
Even prior to the written dying declarations, Kulap Banu has stated to P.W. 2 Rani, P.W. 3 Babu and P.W. 5 Gloria that she was burnt by her
husband Sheik Mohammed by pouring kerosene on her. There is no reason to disbelieve these witnesses, who were neighbours. Besides all this,
the accused had admitted that they were living together and that she caught fire. It was expected of him to explain to the Court as to how she had
caught the fire. Absolutely, there is no explanation offered by the accused.
The medical evidence reveals that Kulap Banu sustained 83% of burn injuries and she died of burn injuries is established by the oral testimony
of P.W. 13 Dr. M.J.E. Ambrose coupled with Ex. P25 medico-legal postmortem examination report.
We are of the considered view that Ex. P23 judicial dying declaration, is authentic, voluntary and duly corroborated by other prosecution
evidence and can safely be made the basis for conviction of the accused and no interference is called for with the impugned judgment. There are no
merits in the appeal and the same is liable to be dismissed. In the result, this criminal appeal is dismissed and the conviction and sentence imposed
by the trial Court on the appellant/accused, are confirmed.