@JUDGMENTTAG-ORDER
Aruna Jagadeesan, J.@mdashThis Criminal Revision Case is filed against the judgment dated 25.11.2009 passed in SC. No. 67/2008 by the learned Sessions Judge, Sivaganga, acquitting the 2nd Respondent herein/sole accused from the charges levelled u/s 302 of IPC.
2. The case of the Prosecution is as follows:
a. PW.1 John Peter is working in Singapore and his wife, the deceased herein and children are residing in a house at Kundrakudi. The deceased developed illicit intimacy with the accused Ramu, a resident of Kundrakudi. The accused due to such intimacy got money and jewels from her. But, he entertained doubt about the continuance of her intimacy with him. On 22.3.2007 at 01.00 mid night. the accused visited the house of the deceased and quarreled with her and suddenly poured kerosene on her and set fire on her. The deceased also held the accused, due to which he also sustained burn injuries.
b. PW.2 Alagappan and others on hearing the hue and cry rushed to the house of the deceased and saw the accused coming out of the house of the deceased. On seeing them, the accused ran away from the scene. PW.2 and others informed the incident to PW.3 Suseela Mary, the sister of PW.1. PW.2 and PW.3 came to the house of the deceased and saw the deceased pouring water from the tank situated in the backyard of her house in order to put off the fire. PW.3 immediately informed the incident to one Nirmalarani, the wife of the brother of PW.1 and also called for an ambulance. The said Nirmalarani brought the deceased in the ambulance to the Government Hospital, Karaikudi.
c. Before the deceased was admitted in the said Hospital, the accused reached the said Hospital for treatment at 2.00 a.m. on 23.3.2007. PW.9, the Doctor attached to the said Hospital gave first-aid to him and issued Ex.P7 accident register. Ex.P9 is the wound certificate and the accused sustained 30% grievous burn injuries over both arms, chest wall and part of both legs. Thereafter, the accused was sent to Government Hospital, Madurai for further treatment.
d. On 23.3.2007 at 2.50 a.m. the deceased was admitted by PW.9 the Doctor attached to the Government Hospital, Karaikudi and was given treatment for burnt injuries found upon her. PW.9 issued Ex.P10 accident register in respect of the deceased. PW.4, Kasbar the co-brother of PW.1 on receipt of information about the incident reached the Government Hospital, Karaikudi on 23.3.2007 at 5.00 a.m. and saw the deceased.
e. PW.13, the Sub Inspector of Police on receipt of information on 23.3.2007 at 4.30 a.m., went to the Government Hospital, Karaikudi and saw the deceased and recorded his statement Ex.P1. On the basis of Ex.P1, PW.13 registered a case in Cr. No. 43/2007 u/s 307 of IPC and prepared the First Information Report Ex.P15 and sent the First Information Report to the court concerned and to PW.14, the Inspector of Police, who took up the case for investigation, on 23.3.2007 went to the house of the deceased and prepared Ex.P2 mahazar and a rough sketch Ex.P16 in the presence of the witnesses. He seized MO.1 kerosene cane, MO.2 match box, MO.3 burnt match stick, MO.4 unburnt match sticks and MO.5 nighty under Ex.P3 Athakshi and the said material objects were sent to the court under Ex.P14 Form-91.
f. On 23.3.2007 at 8.15 a.m., on receipt of Ex.P4 requisition given by PW.9, the Doctor, PW.8, Judicial Magistrate, Karaikudi went to the Government Hospital, Karikudi and recorded Ex.P5 dying declaration given by the deceased. Ex.P6 is the certificate given by the Doctor in respect of Ex.P5 dying declaration. On 5.4.2007 at 6.30 p.m. the deceased died in the said Hospital. PW.14 the Inspector of Police on receipt of Ex.P17 death intimation of the deceased on 5.4.2007 in the Hospital prepared alteration report Ex.P18 u/s 302 of IPC and sent the same to the court. On 6.4.2007, he conducted inquest on the body of the deceased and prepared Ex.P19 inquest report and sent the body of the deceased for postmortem along with a requisition Ex.P12.
g. PW.11, the Doctor attached to the said Hospital conducted postmortem on the body of the deceased. Ex.P13 is the postmortem certificate and PW.11 opined that the deceased would appear to have died of 90% burns and sopsis 12 to 24 hours prior to autopsy.
h. On. 11.4.2007 the accused surrendered himself in the Police Station. PW.14 recorded his confession statement in the presence of PW.6 and sent the accused for judicial custody and examined the witnesses and recorded their statements. PW.15, the Inspector of Police, in continuation of the investigation, examined the witnesses, PW.9 and PW.11, the Doctors and recorded their statements. After completing investigation, on 19.11.2007 he filed the final report against the accused for the offences u/s 302 of IPC.
3. The case was taken on file in SC. No. 67/2008 by the learned Sessions Judge, Sivagangai and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as fifteen witnesses (PW.1 to PW.15) and also relied on Exs.P1 to P19 and five material objects (Mos.1 to 5).
4. On completion of the evidence on the side of the prosecution, the 2nd Respondent herein/the sole accused was questioned u/s 313 Code of Criminal Procedure as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. Neither any witness was examined nor any document was marked on the side of the defence.
5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the 2nd Respondent/sole accused not guilty and acquitted him from all the charges levelled against him, which is challenged in this Criminal Revision Petition.
6. Mr. W. Peter Ramesh Kumar, the learned Counsel for the revision Petitioner contended that the trial court had not properly appreciated the evidence placed on record and the material evidence had been overlooked by the trial court. The learned Counsel put forward the following submissions:
a. The trial court has not given proper reasons for discarding the dying declaration given by the deceased to PW.13, the Sub Inspector of Police and PW.8, the Judicial Magistrate, Karaikudi implicating the accused to have poured kerosene and set fire on her. Besides, the above said evidence, the deceased had given oral declaration to the witnesses, namely, PW.1, the husband of the deceased, PW.3 sister-in-law of the deceased and PW.4, the co-brother of PW.1
b. The motive for the occurrence was clearly spoken to by PW.1 that the accused intended to keep the jewels and monies got by him from the deceased to himself and also did not like the deceased moving with others closely and on 22.3.2007 at about 10.00 p.m., he had quarrelled with the deceased which continued till 1.00 a.m. and as a result of such quarrel, out of anger, he poured kerosene and set fire on her.
c. There is no explanation for the presence of the accused in the odd hours, that is, at midnight in the house of the deceased. PW.2 and PW.3 have spoken to the fact that they saw the accused coming out of the house of the deceased, when they rushed to her house on hearing the hue and cry of the deceased.
d. The 2nd Respondent/accused had escaped from the scene and was absconding after the occurrence and he surrendered to the police only on 11.4.2007.
7. The learned Counsel for the revision Petitioner drew the attention of this Court to the evidence adduced on the side of the Prosecution to substantiate the above said submissions and argued in vehemence that the trial court failed to appreciate and consider the above said incriminating material evidence appearing against the accused.
8. Per contra, Mr. L. Madhusudhanan, the learned Counsel for the 2nd Respondent/accused contended that this Court cannot re-appreciate the evidence and the scope of revision against the acquittal of the accused is very limited and it could be exercised only in exceptional cases, such as, where there is a glaring defect in the procedure or a manifest error of law leading to a flagrant miscarriage of justice. The learned Counsel for the 2nd Respondent submitted that the trial court has considered each and every aspect in this case and has given reasons justifying the order of acquittal of the 2nd Respondent. The learned Counsel strenuously contended that it is not appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same, when the evidence has already been appreciated by the learned Sessions Judge, more so, when there is no glaring defect or manifest illegality or perverse. The learned Counsel referred to a catena of decisions of the Honourable Supreme Court, wherein the Honourable Supreme Court reiterated the principle and held that the power is not to be lightly exercised when invoked by a defacto complainant.
9. In the case of
10. I have given anxious and careful consideration to the rival submissions of the learned Counsel on either side and also perused the impugned judgment and material records placed.
11. Before dealing with the said submissions made by the learned Counsel on either side, it is relevant to state the principles laid down by the Honourable Supreme Court in the case of
It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Sub-section (4) of Section 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial, when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may however indicate some cases of this kind, which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no jurisdiction to try the case but has still acquitted the accused or where the trial court has wrongly shut out evidence which the Prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appeal court, or where the acquittal is based on a compounding of the offence, which is invalid under the law.
12. Bearing in mind the above said principles laid down by the Honourable Supreme Court, we have to see whether the order of acquittal made by the court below is liable to be interfered with.
13. The case of the Prosecution is that on hearing the hue and cry of the deceased, the neighbours, namely, PW.2, Alagappan, one Pandi and Kalimuthu rushed to the house of the deceased where they saw the accused coming out of the house and jumped on the locked gate and ran away. Thereafter, PW.2 informed PW.3, who in turn had phoned up Nimalarani. PW.2 had rushed to the house of the deceased and found the gate locked. They had opened the lock after fetching the key from inside the house. They had seen the deceased pouring water from a water tank and was trying to put off the fire. PW.4 to whom the oral statement is said to have been made by the deceased had come to the scene only on being informed by PW.3 at about 1.30 p.m. He had arrived at the Hospital at 3.00 a.m. early in the morning.
14. The first one who had arrived at the scene is PW.2 and she has not stated anything about the oral statement given by the deceased implicating the accused to have set fire on her. Even in her chief examination, she has only stated that when they enquired the deceased as to what happened, she only asked her to ring up to her sister in law. It is her evidence that only the sister-in-law of the deceased took her to the Hospital in an ambulance. Ex.P10 is the accident register, wherein it is shown that the deceased was brought to the Hospital by one Nirmala Rani. It is specifically written that the deceased was conscious and oriented. She has stated before the Doctor that she met with burns injuries, when she burnt herself with kerosene at about 1.00 a.m. (mid night) on 23.3.2007 at her residence.
15. PW.9, the Doctor who admitted the deceased in the Hospital has stated in her evidence that she was brought to the Hospital by one Nirmala Rani and the deceased was conscious and she answered to the questions put to her by the Doctor. PW.9 has stated that the deceased told her that she immolated herself. Further, she has stated that Nirmala Rani was by her side when the deceased gave the above said statement. It is the case of the Prosecution that the deceased had told PW.3 another sister-in-law of the deceased that the accused had poured kerosene and set fire on her immediately after the arrival of PW.3 and one Nirmala Rani within ten minutes of the occurrence. But, Nirmala Rani has not made such statement to PW.9 Doctor and it is the evidence of PW.9 that Nirmala Rani was by the side of the deceased when the deceased told the Doctor that she immolated herself. Had the deceased declared to the said witness PW.3 and Nirmala Rani that the accused had set fire on her, Nirmala Rani would have definitely disclosed the same to the Doctor. More importantly, the said Nirmala Rani was not examined before the court, despite the fact that the earliest information given by the deceased was known to her. There is no reason given by the Prosecution for withholding of such an important witness and the inference that could be drawn is that the Prosecution was not coming with the true version before the court.
16. At this juncture, it is pertinent to point that an independent witness PW.2 who had arrived at the scene did not say anything about the oral declaration given by the deceased to the witnesses. PW.4 who is the co-brother of PW.1 had arrived at the Hospital at 3.00 or 3.30 a.m. early in the morning. The first written declaration is made to PW.13, the Sub Inspector of Police at 6.30 a.m. in Ex.A1. The evidence discloses that the version of the deceased till such time PW.4 arrived at the Hospital was one of self immolation. Only after PW.4 came to the Hospital, the accused has been implicated for the commission of crime. PW.13, the Sub Inspector of Police has categorically admitted that PW.4 was present at the time when Ex.P1 statement of the deceased was recorded by him. Ex.P1 was not certified by the Doctor to the effect that the deceased was in a fit state of mind to make such a statement. PW.13 has further admitted in his evidence that he did not make any enquiry with the Doctor as to the fit mental condition of the deceased though he met the Doctor.
17. It is to be noted that PW.1, the husband of the deceased who was in Singapore was informed about the occurrence at 5.00 a.m. through phone by PW.4. It is also to be pointed out that though PW.13 had received information even at 4.30 a.m., but he has recorded the statement of the deceased only at 6.30 a.m., that too, in the presence of PW.4. As per the defence version, only at the instigation of PW.1 and PW.4, the accused was implicated and the subsequent declarations from the deceased were obtained so as to suit the said Prosecution theory. The learned Counsel for the 2nd Respondent drew the attention of this Court to the evidence of PW.1 that he had admitted in his cross examination that he spoke to his wife for 5 minutes over phone on the previous night i.e. on 22.3.2007. The learned Counsel submitted that few hours immediately thereafter the incident had occurred and after due deliberation with PW.4, Ex.P1 dying declaration has been recorded by PW.13 implicating the accused. The learned Counsel would contend that it is not outside the realm of probability that her statement has been inspired by PW.4 at the instigation of her husband who was in abroad and who suspected her fidelity and therefore, the trial court rightly held that it is not safe to rely upon such declaration.
18. There is every force in the said contention of the learned Counsel for the 2nd Respondent and as pointed out by him, Ex.P1 raises a serious doubt whether it is a true version given by the deceased. At the outset, it is not certified by the Doctor that the deceased was in her fit state of mind at the time of recording her statement. Further, even as per the admission of PW.13, the Sub Inspector of Police, PW.4 was very much present at the time of recording her statement. It contains a detailed account of the incident, whereas Ex.P6 the dying declaration recorded by PW.8, the Judicial Magistrate contains a very brief statement to the effect that due to family problem, the accused poured kerosene and set fire on her. Ex.P6 contains only three sentences about the occurrence, whereas Ex.P1 contains one long page. The language found in Ex.P1 does not seem to be a one given by the deceased and it discloses that it is not in her own words. The evidence clearly disclosed that Ex.P1 and Ex.P6 have come into existence only after the arrival of PW.4.
19. At this juncture, it is relevant to refer to the settled position of law laid down by the Honourable Supreme Court in a catena of decisions in respect of reliability of dying declaration as hereunder:
a. The Honourable Supreme Court in
Indisputably conviction can be recorded on the basis of the dying declaration alone but therefore the same must be wholly reliable. In a case where suspicion can be raised as regards the correctness of the dying declaration, the Court before convicting an accused on the basis thereof would look for some corroborative evidence. Suspicion, it is trite, is no substitute for proof. If evidence brought on record suggests that such dying declaration does not reveal the entire truth, it may be considered only as place of evidence in which event conviction may not be considered only as a piece of evidence in which event conviction may not be rested only the basis thereof. The question as to whether a dying declaration is of impeccable character would depend upon several factors; physical and mental condition of the deceased is one of them.
b. In a landmark decision of the Honourable Supreme Court rendered in the case of Laxman v. State of Maharashtra 2002 SCC 1491, a Five-Judges Bench held hereunder:
3. ...The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross examination are dispensed with. Since the accused has no power of cross examination the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant.
c. The Honourable Supreme Court in the case of Samadhan Dhudka Koli v. State of Maharashtra 2008 (8) Supreme 719 has held thus:
16. Consistency in the dying declaration, therefore, is a very relevant factor. Such a relevant factor cannot be ignored. When a contradictory and inconsistent stand is taken by the deceased herself in different dying declarations, they should not be accepted on their face value. In any event, as a rule of prudence, corroboration must be sought from other evidence brought on record.
20. The principle laid down by the Honourable Supreme Court in the said decisions cited supra is squarely applicable to the facts of the present case, as in this case also, it is already pointed out that two dying declarations, namely, Ex.P1 and Ex.P6 were recorded under the suspicious circumstances and there is variations in the contents of those declarations also.
21. Added to the same, the earliest version made by the deceased herself in the presence of her sister-in-law one Nirmala Rani is that she immolated herself. One of the neighbours PW.2 has not made any statement implicating the accused or about the statement made by the deceased to the effect that the accused set fire on her. The statement made by the deceased to PW.9 the Doctor cannot be discarded, as the witness who can dislodge the correctness of the said statement namely Nirmala Rani has not been examined by the Prosecution. PW.1 to PW.3 are closely related to the deceased and when their evidence is scrutinized carefully, it renders their testimony highly doubtful. None of the statements attributed to the deceased and coming from the mouth of those above said related witnesses could be held worthy of being accepted and acted upon as true dying declaration so as to form a safe basis to come to a conclusion that the accused was the culprit.
22. Yet another contention was put forward by the learned Counsel for the revision Petitioner that the presence of the accused at the odd hours in the house of the deceased clearly shows that it is the accused who has committed the crime and no other inference could be drawn for his presence in the house of the deceased. PW.2 and PW.3 have spoken to the effect that when they came to the scene, the accused was jumping out of the gate from the house of the deceased and further the deceased was found pouring water from the water tank. Even according to the Prosecution, the accused sustained burn injuries and he was admitted for treatment in the same Hospital. PW.9, the Doctor has stated that the accused was brought to the Hospital with burn injuries by one Pandian, an auto driver and it was stated to her that the accused sustained burn injuries when he attempted to save the deceased who burnt herself. The said Pandian has not been examined by the Police to discredit the said statement made to the Doctor.
23. The entries in the accident register copy Ex.P7 shows that he sustained 25% to 30% burn injuries. In Ex.P9 would certificate, it is written that he sustained burn injuries over both arms, chest wall and part of both legs. The evidence on record discloses that the accused was residing in the same street. The defence case is that on hearing the hue and cry from the deceased, the accused also rushed to the spot and tried to save her from being burnt while others stood stun on seeing her burning. The defence version is more probabilised considering the earliest version made by the accused to the Doctor coupled with the fact that he had sustained extensive burns on his both arms, chest and legs while trying to save the deceased from burning.
24. It is relevant to point that the accused did not escape from the scene and he had been admitted in the Government Hospital, Karaikudi from 23.3.2007 to 29.3.2007 and then was referred to Government Hospital, Madurai for further treatment. Ex.P9 clearly shows that he was admitted in the Government Hospital, Madurai on 29.3.2007 and was discharged on 10.4.2007. The next day i.e. on 11.4.2007 he had surrendered himself to the Police. So, it is evidently clear that he did not try to escape from the scene and he has also sustained severe burn injuries and had been under treatment for nearly 12 days. Therefore, the contention of the learned Counsel for the revision Petitioner cannot be countenanced, inasmuch as there is explanation from the accused for his presence in the house of the deceased as well as that he did not abscond from the scene at any point of time.
25. Lastly, even as regards the motive put forth by the Prosecution, there is no acceptable and reliable evidence. Though PW.1 said that two of the receipts were in the name of the accused for pledging the jewels, but admittedly they were not seized and produced before the court. There is no material placed on record by the Prosecution to show that the accused pledged the jewels of the deceased or sold the jewels belonging to the deceased. PW.15, the Investigating Officer has clearly admitted in his evidence that he has not seized the receipts in order to show that either the accused had pledged or sold the jewels of the deceased. There is also no reliable evidence to show that the deceased had illicit intimacy with the accused. The fact remains that the accused who is residing in the same street had come to the house of the deceased like other residents on hearing the hue and cry of the deceased.
26. In the above circumstances, it is difficult to say that the court below was not justified in acquitting the 2nd Respondent/Accused. The judgment of acquittal of the court below does not suffer from any manifest illegality and the interest of justice does not warrant interference with the impugned judgment of acquittal of the court below.
27. In the result, this criminal revision petition is dismissed.
