Madras High Court
Vadivelu vs State Rep. By on 24 August, 2021
Crl.A.(MD) No.277 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 24.08.2021
CORAM
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN
AND
THE HONOURABLE MRS.JUSTICE J.NISHA BANU
CRL.A (MD)No.277 of 2018
Vadivelu .. Appellant/Sole Accused
-vs-
State rep. by
The Inspector of Police,
Thondi Police Station,
Ramanathapuram District.
Crime No.122 of 2013. .. Respondent/Complainant
Criminal Appeal filed under Section 374 of the Code of Criminal
Procedure against the judgment of the Fast Track Mahila Court,
Ramanathapuram, in S.C.No.29 of 2014, dated 29.05.2018.
For Appellant :: Mr.C.D.Johnson
for M/s.PR.Boomee Rajan
For Respondent :: Mr.S.Ravi
Standing Counsel for State
1/22
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
JUDGMENT
(Judgment of the Court was delivered by V.BHARATHIDASAN, J.)
The appellant is the sole accused in S.C.No.29 of 2014, on the file
of the Fast Track Mahila Court, Ramanathapuram, who stood charged
and convicted for the offence under Section 302 I.P.C. and sentenced to
undergo Life Imprisonment and to pay a fine of Rs.1,00,000/-, in default,
to undergo one year Rigorous Imprisonment and out of Rs.1,00,000/-
Rs.49,500/- each was directed to be paid to the children of the deceased
and the remaining amount of Rs.1,000/- was directed to be paid as fine to
the Government. Challenging the aforesaid conviction and sentence, the
appellant is before this Court with this Criminal Appeal.
2.The case of the prosecution in brief as follows:
The deceased Kavitha is the daughter of P.Ws.1 and 2 and wife of
P.W.3 and sister of P.W.17. There was a civil dispute between the
deceased family and accused family. On 09.09.2013, at about 9.00 p.m.,
the accused and his family members were trying to set fire to the
deceased house and the accused also poured kerosene and set fire on the
deceased. Immediately, she was taken to the Government Hospital,
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
Ramanathapuram and after giving first aid, she was shifted to
Government Hospital, Karaikudi. Subsequently, she was shifted to
Government Rajaji Hospital, Madurai, on 11.09.2009 and was given
treatment. On 12.09.2009, at 11.00 p.m., the deceased succumbed to the
injuries.
3.P.W.15, Sub-Inspector of Police of the respondent Police Station,
recorded the statement of the deceased at about 8.00 p.m. on 10.09.2013,
at Karaikudi Government Hospital. Based on the same, he registered a
case in Crime No.122 of 2013, under Section 307 I.P.C. and sent the
original F.I.R. (Ex.P.13) to the Judicial Magistrate, Thiruvadanai and
copies to the higher officials and also sent a copy to P.W.21, Inspector of
Police, for investigation.
4.P.W.21, Inspector of Police, on receipt of the F.I.R. commenced
the investigation and on 11.09.2013, at about 6.00 p.m., he visited scene
of occurrence and prepared Observation Mahazar (Ex.P.17) and Rough
Sketch (Ex.P.16) in the presence of witnesses. Then, he examined the
witnesses and recorded their statements. After the deceased succumbed to
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
the injuries, he altered the offence to 302 I.P.C. and sent the alteration
report (Ex.P.18) to the Judicial Magistrate Court. On 13.09.2013, at about
8.00 a.m., he conducted inquest on the dead body in the presence of
panchayatars. Thereafter, he sent the body for postmortem through P.W.
14, Head Constable.
5.P.W.19, Doctor, working as Assistant Professor in the
Government Medical College, Madurai, conducted autopsy on the dead
body on 13.09.2013 at 11.00 p.m. and given the postmortem report
(Ex.P.15) and he was of the opinion, the deceased would appear to have
died of extensive superficial burns of about 90% and its complications
thereof.
6.Thereafter, P.W.21, arrested the accused on 15.09.2013, at about
6.00 a.m. and he voluntarily came forward to give his confession, based
on the admissible portion of the confessional statement, P.W.21
recovered M.O.1 - 5 litre kerosene can and M.O.2 - match box with
match sticks and sent the material objects to Judicial Magistrate Court
under Form 95 and remanded the accused to judicial custody. Thereafter,
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
he examined the postmortem doctor and other witnesses and recorded
their statements and after completing the investigation, filed the final
report on 27.12.2013 for the offences under Section 302 I.P.C.
7.Considering the above materials, the trial Court framed charge as
stated above and the accused denied the same as false. In order to prove
its case, the prosecution examined as many as 21 witnesses, marked 24
documents and also produced 2 material objects.
8.Out of the witnesses examined, P.W.1 is the mother of the
deceased. According to her, there was a civil dispute between the
deceased family and the accused family and on the date of occurrence
i.e., on 09.09.2013, at about 9.00 p.m., there was a quarrel between them
and the accused poured kerosene on the deceased and set fire and she has
taken the deceased to the Hospital. P.W.2, father of the deceased, also
spoke of the civil dispute and the quarrel between the parties. According
to him, during the quarrel, the deceased came out of the house burning
and fall in the nearby field. Then, they took her to hospital. P.W.3 is the
husband of the deceased. According to him, he was living in his father-
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
in-law's house along with his wife, earlier there was a quarrel, in which,
the women-folks abused the deceased and due to the same, the deceased
attempted to commit suicide and it was prevented; once again at about
9.00 p.m., there was a quarrel and the accused family members attacked
him and the accused poured kerosene on the deceased and set fire on her
and the deceased ran out of the house and fell in the nearby field.
9.P.W.4, Judicial Magistrate No.1, Fast Track Court, Madurai,
recorded the dying declaration of the deceased at the Government
Hospital, Madurai. P.W.5, Doctor, working in the Government Hospital,
Ramanathapuram, where he received the deceased on 10.09.2013, at
12.40 a.m. and given first aid and sent her to Government Hospital,
Karaikudi and he has issued Ex.P.3, Accident Register copy, wherein the
deceased said to have stated that some unknown person set fire on her.
P.W.6, the Deputy Director of Forensic Department, examined the
material object M.O.1, plastic can and gave report Ex.P.4.
10.P.W.7., Doctor, working in Karaikudi Government Hospital,
admitted the deceased and issued Ex.P.5, Accident Register copy,
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
wherein, he has found the deceased sustained 90% injury. P.W.8 is the
maternal uncle of the deceased and he spoke about the civil dispute
between the parties. According to him, during the quarrel between the
accused family and deceased family, the accused family was trying to set
fire to the house of the deceased and at about 9.00 p.m., the deceased
came out of the house with fire and when enquired, he was told that the
accused set fire on her. P.W.9, sister of the deceased, is only a hearsay
witness. P.Ws.10 and 11, Mahazar witnesses, turned hostile. P.W.12 -
Village Administrate Officer and P.W.13 - Village Assistant are witnesses
to confession statement and recovery of material objects and they have
also turned hostile. P.W.14, Head Constable, handed over the body of the
deceased to Government Rajaji Hospital, Madurai for postmortem.
11.P.W.15., Sub-Inspector of Police, recorded the statement of the
deceased at the Government Hospital, Karaikudi and registered the F.I.R.
P.W.16, Doctor, working at Government Rajaji Hospital, Madurai and he
admitted the deceased and issued the Accident Register copy (Ex.P.14),
wherein it is stated that the deceased has already given dying declaration
at Government Hospital, Ramanathapuram. P.W.17 is the brother of the
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
deceased and he spoke about the quarrel and according to him, during the
quarrel, he saw the deceased burning and he immediately took her to
hospital. P.W.18, Head Constable, handed over the material objects for
examination at forensic laboratory.
12.P.W.19, Assistant Professor, who conducted autopsy and issued
postmortem certificate (Ex.P.15) , which reads as follows:
“The following ante mortem injuries are noted on
the body:
Extensive superficial infected burns involving the
following areas:
Whole of face, front of scalp, whole of neck, chest and
abdomen. Both upper limbs and lower limbs in patchy
manner. The base of the burnt area is reddish in colour
and infected areas are covered with foul smelling pus
material in patches. Peeling and blackening of the skin
noted on all over the burnt areas in patchy manner.
Partial degloving of the skin noted on both hands and
feet. Evidence of singeing of hairs noted on front of
scalp, eyebrows, eyelashes, ampits and public region.
IV drip wound noted on inner aspect of left ankle.
OTHER FINDINGS:
Peritoneal cavity – empty; Pleural cavities – empty;
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
Pericardium – contains 15 ml of straw colour fluid;
Heart – right side fluid blood, left side empty;
Coronaries – patent; Lungs – cut section congested and
showing bilateral basal consolidation in patches;
Larynx & trachea – normal, cut section contains fine
froth; Hyoid bone – intact; Stomach – contains 100ml
of brown colour fluid, nil specific smell, mucosa –
normal; Liver, Spleen & kidneys – cut section
congested; Small intestine – contains 20ml of bile
stained fluid nil specific smell, mucosa – normal;
Bladder – empty; Uterus – normal, cut section empty;
Brain – Surface vessels & cut section congested.
OPINION:
“THE DECEASED WOULD APPEAR TO HAVE
DIED OF EXTENSIVE SUPERFICIAL BURNS OF
ABOUT 90% AND ITS COMPLICATIONS THERE
OFF”
He was of the opinion that the deceased died of extensive superficial
burns of about 90% and its complications.
13.P.W.20, is the doctor working in Government Hospital, Madurai
and he was present when the Judicial Magistrate was recording the dying
declaration and he has examined her and given a certification that she is
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
conscious and fit to give dying declaration. P.W.21, Inspector of Police,
conducted the investigation, recorded the statements of witnesses and
after completion of investigation filed final report on 27.12.2013 for the
offence under Section 302 I.P.C.
14.The above incriminating materials were put to the accused
under Section 313 Cr.P.C.. The accused denied the same as false and he
has examined one Sonaimuthu as D.W.1. According to him, he is a
relative of both the accused and deceased and he has also spoken about
the quarrel between the accused family and deceased family due to civil
dispute and further stated that at about 4.00 p.m. the deceased has
attempted to commit suicide and that was prevented by others and at
about 8.00 p.m., once again she poured kerosene and set fire on her and
all the persons present there put off the fire and sent her to Hospital
through ambulance.
15.Having considered the above materials, the trial Court
convicted the appellant/accused and sentenced him as state above.
Challenging the aforesaid conviction and sentence, the appellant is
before this Court with this Criminal Appeal.
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
16.Mr.C.D.Johnson, learned counsel appearing for Mr.PR.Boomee
Rajan, learned counsel for the appellant, would submit that all the
eyewitnesses, namely, P.Ws.1 to 3 and 17 are parents, husband and
brother of the deceased respectively. From their evidence, there are lot of
material contradictions. That apart, the dying declarations given by the
deceased are contradictory to each other. In the first three dying
declarations, deceased not implicated the accused, but only the final
dying declaration, given two days after the occurrence, has falsely
implicated the accused due to the counseling of the relatives, and the trial
Court believing the same convicted the appellant. The learned counsel
further submitted that according to P.W.1, the accused went inside the
house and set fire, whereas P.W.3 stated that the occurrence has taken
place outside the house, wherein the deceased was trying to pour
kerosene, despite they prevented them, they poured kerosene. It is a
material contradiction, which clearly shows that their evidence are un-
believable. Apart from that, all the neighboring independent witnesses
turned hostile. The trial Court without considering the contradictions in
the evidence of eye-witnesses, P.Ws.1 to 3 and also relying on the dying
declaration has convicted the accused. Hence, the conviction is liable to
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
be set aside.
17.Mr.S.Ravi, learned Standing Counsel for State would submit
that the occurrence has taken place in the house of the deceased, P.Ws.1
and 2 – parents, P.W.3. - husband and P.W.17 – brother of the deceased
were present at the time of occurrence. There was a quarrel between the
parties, during the quarrel, the accused poured kerosene on the deceased
and set on fire. Their evidence is consistent in this aspect. That apart, the
deceased has given judicial dying declaration, wherein she has clearly
stated that only this accused set on fire. Considering the evidence of
eyewitnesses and dying declaration as trustworthy and reliable, the trial
Court has convicted the accused and there is no reason to interfere with
the judgment.
18.We have considered the rival submissions and perused the
materials carefully.
19.The accused and deceased are closely related to each other and
there was a civil dispute between the parties regarding their share in a
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
landed property. From the available evidence, it could be seen that, there
was a quarrel between the parties on 09.09.2013, right from the morning
and a mediation was also conducted. Once again, at 9.00 p.m., there was
a quarrel, at that time, the occurrence is said to have taken place. It could
also be seen from the evidence available on record, on the very same day
at about 3.00 p.m., the deceased tried to self-immolate herself by pouring
kerosene on her and that was prevented by the family members and
others present there. Thereafter, at about 9.00 p.m., the present
occurrence has taken place. P.Ws.1 to 3 and 17 are eye-witnesses to the
occurrence. P.W.1 – mother, P.W.2 – father, P.W.3 – husband and P.W.4
brother of the deceased, the other independent witnesses examined by the
prosecution have turned hostile. According to P.W.1, mother of deceased,
during quarrel, the family members of the accused attacked P.W.3 and the
womenfolks have abused the deceased. At that time, the accused entered
into the house of the deceased and set fire on her and the deceased came
out and fall in the nearby field. P.W.2, father of the deceased, also spoke
about the quarrel and at the time he saw the deceased came out of the
house with fire on the body and according to him, it is only the accused
set fire on her. P.W.3, husband, has given a different version. According
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
to him, during quarrel, the accused has asked his family members to set
fire to their house, when the deceased questioned the accused, the
accused poured kerosene and set fire on her and the deceased fall down
in the nearby field. P.W.17, brother of the deceased has given another
different version stating that the accused’s mother and sister abused the
deceased and tried to attack her and some other family members of the
accused attacked P.W.1, while they were quarrelling, the accused said to
have poured kerosene on the deceased and set fire on her, and there are
material contradictions in their testimonies.
20.Turning to the dying declaration, there are multiple dying
declarations given by the deceased. The occurrence has taken place at
9.00 p.m. Immediately, the deceased was taken to Government Hospital,
Ramanad. She was treated by P.W.5 at about 12.40 a.m. and issued
Accident Register (Ex.P.3). On a perusal of Ex.P.3, it could be seen that
the deceased has stated that, the occurrence has taken place on
09.09.2013, at about 11.45 p.m. in her house, committed by one unknown
person. It is the earliest statement given by the deceased. P.W.5, Doctor,
also corroborated the same. Thereafter, she was shifted to Government
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
Hospital, Karaikudi, on 10.09.2013, at about 4.30 p.m., wherein P.W.7,
Doctor, admitted the deceased and issued an Accident Register copy
(Ex.P.5), wherein it is stated that the deceased is alleged to have
sustained suicidal burn injuries at her home on 09.09.2013. While she
was given treatment at Government Hospital, Karaikudi, P.W.15, Sub-
Inspector of Police, recorded the statement of the deceased (Ex.P.6),
based on that he registered the F.I.R., wherein she has stated that there
was a quarrel between the accused family and deceased family, at that
time they have attacked the deceased’s husband due to the same, she
attempted to commit suicide and the family members saved her. Once
again, the accused family entered into the house and quarreled with them,
at that time, the accused asked the family members to set fire to her
house and poured kerosene on her and set fire. Thereafter, she was
shifted to Government Hospital, Madurai, on 11.09.2013 at about 4.00
p.m., wherein P.W.16, Doctor, treated her and issued Accident Register
copy (Ex.P.14), wherein he has stated that a dying declaration has been
obtained at Government Hospital, Ramanad, but that dying declaration
was not placed before the Court. While she was taking treatment at
Government Hospital, Madurai, a judicial dying declaration was recorded
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
by P.W.4, Judicial Magistrate No.1, Fast Track Court, Madurai under
Ex.P.1, where she has stated that there was a quarrel between the accused
family and deceased family and at that time she poured kerosene on her
and attempted to commit suicide. Thereafter, at about 10.00 a.m. again
there was a quarrel, once again she poured kerosene on her and the
accused set on fire. The relevant portion of the dying declaration reads as
follows:
“-mg;g[wk; vd;dk;kh.
- ,dpnk vd; g[Urida[k; mrpq;fkh brhy;yLthq;fd;D
kz;bzz;a Cj;jpl;nld;. mg;g[uk; vy;nyhUk; g[s;is
Fl;of;fhhpd;D brhd;dhq;f
- mg;g[wk; vd;dk;kh ele;Jr;R.
- iel;L gj;J kzpf;F> rz;l nghl;lhq;f. rz;ilapy; kWgoa[k;
kz;bzz;iza Cj;jpl;nld;. tontY jhd; bghUj;jp tpl;lhd;
- tontYq;fwJ ahUk;kh.
-vdf;F rpj;jg;gh kfd.; mg;gh mk;kh> fzgjp> fhspak;kh.”
21.Considering all these statements of the deceased, we find lot of
contradictions. The earliest statement given before P.W.5, Doctor, at
Ramanathapuram Hospital, was that, some unknown person set fire on
her. Thereafter, on the next day, she has given a different version at
Government Hospital, Karaikudi, that it was only a suicide attempt at her
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
home. Subsequently, she has given statement before the police, wherein
she has stated that, it is only accused poured kerosene and set on fire. In
the meantime, as per Ex.P.14, there was yet another dying declaration
obtained from the deceased at Government Hospital, Ramanathapuram. It
is also acknowledged by P.W.16, Doctor, working at Government Rajaji
Hospital, but that dying declaration has been suppressed by the
prosecution. Once again, a Judicial dying declaration has been given by
the deceased, wherein she has stated that earlier she has attempted to
commit suicide by pouring kerosene. Thereafter, once again, at about
10.00 p.m. the accused only poured kerosene and set fire on her. Those
material contradictions have make us to suspect genuineness of the dying
declarations.
22.The law is settled that, if a dying declaration is found to be
voluntary, reliable and made in fit state of mental condition, it can be
relied for convicting the accused without any corroboration. However, in
cases of multiple dying declarations and there are inconsistencies, then
the Court has to examine whether the inconsistencies are material or not.
On examining the dying declarations, if the Court found inconsistencies
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
are material in nature, then, it is unsafe to convict the accused based on
the dying declarations. The Hon'ble Supreme Court in Amol Singh v.
State of M.P. [(2008) 5 SCC 468], held as follows:
“8. Law relating to appreciation of evidence in the
form of more than one dying declaration is well settled.
Accordingly, it is not the plurality of the dying
declarations but the reliability thereof that adds weight to
the prosecution case. If a dying declaration is found to be
voluntary, reliable and made in fit mental condition, it can
be relied upon without any corroboration. The statement
should be consistent throughout. If the deceased had
several opportunities of making such dying declarations,
that is to say, if there are more than one dying declaration
they should be consistent. (See: Kundula Bala
Subrahmanyam v. State of A.P. [(1993) 2 SCC 684].
However, if some inconsistencies are noticed between one
dying declaration and the other, the court has to examine
the nature of the inconsistencies, namely, whether they are
material or not. While scrutinising the contents of various
dying declarations, in such a situation, the court has to
examine the same in the light of the various surrounding
facts and circumstances.”
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
23.On a careful examination of inconsistency found in the dying
declarations, it could be seen that it is material in nature. The material
contradictions in the testimonies of eye-witnesses and in the dying
declarations given by the deceased create serious doubt as to whether the
deceased has committed self immolation or it is a homicidal death.
Considering all those circumstances, we are of the view that there is a
possibility that deceased might have committed self-immolation and due
to enmity prevailing between the parties, she put the blame on the
accused, and it is highly unsafe to convict the accused on the strength of
the inconsistent dying declarations and the interested testimonies of eye-
witnesses. Hence, we are unable to sustain the conviction and sentence
imposed on the accused and the accused is entitled to the benefit of
doubt.
24.In the result, the Criminal Appeal is allowed and the conviction
and sentence imposed on the appellant/accused, by the Fast Track Mahila
Court, Ramanathapuram, in S.C.No.29 of 2014, by the judgment dated
29.05.2018, are hereby set aside. The appellant/accused acquitted of the
charge levelled against him. Fine amount, if any, paid by the
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
appellant/accused shall be refunded to him. However, if the
compensation amount already paid to the children of the deceased, it
need not be recovered. Bail bonds executed by him also shall stand
cancelled. After the period of Appeal, the material objects shall be
destroyed.
(V.B.D.J.,) (J.N.B.,J)
24.08.2021
Internet: yes/no
Index : yes/no
sj
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the
copy of the order that is presented is the correct copy,
shall be the responsibility of the advocate/litigant
concerned.
To
1. The Sessions Judge,
Fast Track Mahila Court,
Ramanathapuram.
2.The Judicial Magistrate,
Thiruvadanai,
Ramanathapuram District.
3.The Inspector of Police,
Thondi Police Station,
Ramanathapuram District.
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Copy to
The Section Officer,
Criminal Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
Crl.A.(MD) No.277 of 2018
V.BHARATHIDASAN, J.
and
J.NISHA BANU, J.
sj
Criminal Appeal No.(MD) No.277 of 2018
24.08.2021
https://www.mhc.tn.gov.in/judis/
