Madras High Court
Mahalakshmi vs State Through on 26 October, 2021
Crl.A.(MD).No.7 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED :26.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE V. BHARATHIDASAN
and
THE HONOURABLE MRS.JUSTICE S.ANANTHI
Crl.A.(MD).No.7 of 2019
Mahalakshmi ... Appellant /Accused
-vs-
State through
The Inspector of Police,
Thirunagar Police Station,
Madurai District.
(in Crime No.94 of 2010) ... Respondent
PRAYER : Criminal Appeal is filed under Section 374 of Cr.P.C., to call for
the entire records connected to the judgment in S.C.No.315 of 2011 on the
file of the learned Sessions Judge, Mahalir Neethimandram, Madurai (FAC),
dated 29.11.2018 and set aside the conviction and sentence imposed against
the appellant.
For Appellant : Mr.R.Alagumani
For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor
1/17
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Crl.A.(MD).No.7 of 2019
JUDGMENT
(Judgment of the Court was delivered by V.BHARATHIDASAN, J.)
The appellant is the sole accused in S.C.No.315 of 2011, on the file of
the learned Sessions Judge, Mahalir Neethimandram, Madurai (FAC), and
she stood charged and tried for the offence under Section 302 of I.P.C.
2. The trial Court, vide impugned judgment dated 29.11.2018, has
convicted the appellant herein for the above said offence and imposed the
sentences, thus:
Accused Conviction Sentence
To undergo life imprisonment and to pay a fine
Sole U/s. 302 of
of Rs.1,000/-, in default to undergo six months
Accused I.P.C.
simple imprisonment.
Challenging the same, the present appeal has been filed.
3. The case of the prosecution is that, the deceased in this case one
Amutha is the second wife of P.W.2, and the accused is his first wife. Both
the deceased and the accused were living together with P.W.2. There was a
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Crl.A.(MD).No.7 of 2019
quarrel between them on 20.03.2010, at about 3.30 p.m., in which the
accused poured kerosene and set fire on the deceased. Immediately, P.W.1, a
neighbour, took her in 108 ambulance to the Government Rajaji Hospital,
Madurai, where, P.W.9, a Doctor, admitted her in the Burn Injury Ward and
issued an Accident Register, Ex.P4. Thereafter, P.W.14, another Doctor in
the Burn Injury Ward, has given a treatment to the deceased. In the
meantime, based on the statement given by P.W.1, a F.I.R has been
registered by one Alagar, a Police Constable, at about 3.00 a.m., for the
offence under Section 307 of I.P.C., and sent the same to the concerned
Judicial Magistrate Court, on the next day morning, at about 10.00 a.m.
Subsequently, at about 6.30 a.m., the deceased succumbed to injuries.
4. P.W.16, the Inspector of Police in the respondent police station,
commenced the investigation and filed an alteration report, Ex.P12, altering
the offence under Section 302 of I.P.C., and proceeded to the scene of
occurrence at about 10.30 a.m., where he prepared Observation Mahazar,
Ex.P13 and Rough Sketch, Ex.P14 and recovered a Plastic Bottle, Paint
Container, and Burnt Saree, M.Os.1 to 3. Then, he conducted inquest on the
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Crl.A.(MD).No.7 of 2019
dead body of the deceased in the hospital, recorded the statements of the
witnesses and prepared the Inquest Report, Ex.P16. On 23.03.2010, he
arrested the accused. On such arrest, the accused voluntarily given a
confession. Then, he remanded the accused to Judicial custody. In the mean
time, P.W.16 was transferred and P.W.17, the Inspector of Police, continued
the investigation and recorded the statement of other witnesses and on
completion of investigation, he filed a final report for the offence under
Section 302 of I.P.C.,
5. Based on the above materials, the trial Court framed the charge
against the accused as mentioned above. However, the appellant/accused
has denied the same. The prosecution in order to sustain their case,
examined 17 witnesses, marked 17 documents and also produced 3 material
objects.
6. Out of the said witnesses, P.W.1, neighbour of the deceased, who is
the author of the complaint, turned hostile. P.W.2 is the husband of the
deceased and the accused. According to him, after the death of the deceased,
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Crl.A.(MD).No.7 of 2019
he went to the hospital. He, however stated that the deceased, when she was
alive, told him that the accused only poured the kerosene and set fire on her.
7. P.W.3 is the another neighbour of the deceased. According to her,
on the date of occurrence, after hearing the noise, she went out of the house
and saw the deceased with burn injuries where the deceased told her that the
accused poured kerosene and set fire on her.
8. P.W.4 is the another neighbour of the deceased. According to her,
both the accused and the deceased residing in P.W.2's house and they are
living cordially, after the occurrence, she saw the deceased with burn
injuries and she told her that the accused poured kerosene and set fire on
her.
9. P.W.5 is also a neighbour of the accused. According to him, after
the occurrence, he along with P.W.1 and the accused took the deceased to
the Government Rajaji Hospital, Madurai, where she told him that only the
accused poured kerosene and set fire on her.
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Crl.A.(MD).No.7 of 2019
10. P.W.6 is the mother-in-law of the accused and the deceased.
According to her, she went to the hospital at about 2.00 p.m., where the
deceased told her that only the accused poured kerosene and set fire on her.
P.W.7 is the mother of the accused spoke about earlier quarrel between the
accused and the deceased.
11. P.W.8, the Village Menial, who is the witness to the Observation
Mahazar, turned hostile. P.W.9, the Doctor, who admitted the deceased in
the Government Rajaji Hospital, Madurai and issued an Accident Register,
Ex.P4.
12. P.W.10, the Village Administrative Officer, who is the witness to
the Observation Mahazar and recovery of M.Os.1 to 3. P.W.11, the Doctor,
who conducted postmortem autopsy on the dead body of the deceased and
issued the Postmortem Certificate, Ex.P8 and found the following injuries:
“The following ante mortem injuries are noted on the body:
Extensive superficial burns involving scalp in front;
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Crl.A.(MD).No.7 of 2019
whole of face in patches; front, sides and back of neck in
patches; front, sides and back of chest and abdomen; whole
of both upper limbs and whole of both lower limbs. The base
of the burnt area was reddish in colour. Peeling and
balckening of skin noted all over the burnt areas in patches.
Partial degloving of skin noted on both hands and feet.
Singeing of hairs noted on scalp in front, eyebrows,
eyelashes, armpits and pubic region. The unburnt scalp hair
emits smell of kerosene.”
13. P.W.12 is a Head Constable, who handed over the F.I.R. to the
concerned Judicial Magistrate Court. P.W.13 is a Scientific Officer, working
in the Regional Forensic Laboratory, Madurai, who examined the visceral
part of the deceased and given a report. P.W.14, the Doctor, who admitted
the deceased in the Burn Injury Ward and given a treatment to her.
According to him, at the time of admission, the deceased told him that she
does not know how she sustained burn injury.
14. P.W.15 is a Head Constable who identified the body for
Postmortem. P.W.16 is the Inspector of Police, who commenced the
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Crl.A.(MD).No.7 of 2019
investigation, arrested the accused and recovered the material objects. P.W.
17, Inspector of Police, who continued the investigation and completed the
same and filed a final report.
15. When the above incriminating materials were put to the accused
under Section 313 Cr.P.C., the accused denied the same as false. However,
the accused did not chose to examine any witness nor did she mark any
documents on her side.
16. The trial Court, on consideration of the oral and documentary
evidence, has found the appellant/accused guilty of the charge framed
against her and imposed the sentence as stated above. Now, challenging the
same, the present appeal has been filed.
17. We have heard the learned counsel appearing for the appellant and
the learned Additional Public Prosecutor appearing for the State and
perused the materials available on record.
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Crl.A.(MD).No.7 of 2019
18. There is no eyewitness to the occurrence. The prosecution mainly
relied upon the oral dying declaration given by the deceased to P.Ws. 3, 4
and 5 and all are neighbours of the deceased and the accused. According to
P.W.3, after the occurrence, she came out of the house and saw the deceased
with burn injuries, at that time, the deceased told her that the accused
poured kerosene and set fire on her. Likewise, P.W.4 also seen the deceased,
after the occurrence, wherein the deceased said to have told her that the
accused poured kerosene and set fire on her. P.W.5 is said to have taken the
deceased along with P.W.1 and the accused to the Government Rajaji
Hospital, Madurai in 108 ambulance. According to him, the deceased told
him that the accused poured kerosene and set fire on her. Another
eyewitness P.W.1, who is said to have taken the deceased to the Government
Rajaji Hospital, Madurai and given the complaint, turned hostile. Relying
upon those evidences, the prosecution sought to sustain their case.
19. The learned counsel appearing for the appellant would submit that
P.Ws.3, 4 and 5 are all neighbours of the deceased and they are all interested
witnesses. Their testimonies have been contradicted by the evidence of P.W.
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Crl.A.(MD).No.7 of 2019
9, the Doctor, who has admitted the deceased in the Government Rajaji
Hospital, Madurai. That apart, P.W.3, in the cross- examination admitted
that both the deceased and the accused were living together peacefully and
there is no evidence to show that there was a quarrel between them and,
therefore, the prosecution has failed to establish the motive against the
accused for committing the crime.
20. Perusal of the cross-examination of P.W.3 would go to show that
both the deceased and the accused were living in the same house happily
and only the deceased is said to have taken care of the children of the
accused. Further, she has stated that at the time of occurrence, her son was
suffering from Chickenpox and therefore, she remained inside the house and
she did not come out of the house and she only heard the deceased saying
that somebody poured kerosene and set fire on her.
21. P.W.4, in the cross-examination, has stated that she does not know
what was taken in the house of the deceased, only when the deceased was
taken in 108 ambulance, P.W.5, her husband and P.W.1 came to the house of
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Crl.A.(MD).No.7 of 2019
the deceased. Further, she has stated that two days prior to the occurrence,
there was a quarrel between the deceased and P.W.2, her husband. However,
P.W.5, in the cross-examination stated that after the occurrence, he saw the
deceased and she informed him that only the accused poured kerosene and
set fire on her.
22. The materials available on record would show that immediately
after the occurrence, the deceased was taken to Government Rajaji Hospital,
Madurai, at about 4.55 p.m., and P.W.9, the Doctor, admitted her in the
hospital and issued an Accident Register – Ex.P4, which shows that though
the deceased had sustained 100% burn injury, she was conscious, oriented
and she was set fire by her own sister. However, in the cross-examination,
P.W.9 has stated that the deceased did not say anything about the injuries
sustained by her and he does not know who has informed him that she was
set fire by her own sister. Therefore, from the evidence of P.W.9, it could be
seen that the deceased did not tell P.W.9 anything about the occurrence.
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Crl.A.(MD).No.7 of 2019
23. P.W.14, another Doctor, who treated the deceased, has clearly
stated that at the time of admission in the burn injury ward, the deceased has
stated that she does not know how she has sustained burn injury. These two
official witnesses contradicted the evidence of P.Ws.3, 4 and 5. Even
though, P.W.2, husband and P.W.6, mother-in-law have stated that the
deceased told them that the accused only poured kerosene and set fire on
her, however, from their evidence, it could be seen that P.W.2 reached the
hospital at about 9.00 p.m. and P.W.6 went to the hospital on the next day at
about 2.00 p.m. By that time, the deceased was unconscious and she was not
in a position to give any statement, as per the F.I.R, Ex.P11. Hence, their
evidence cannot be believed. Though a plastic bottle and a burnt saree,
M.Os.1 and 3 were said to be seized from the scene of occurrence, they
were not sent for chemical analysis to ascertain whether any kerosene
residues are present. That apart, there is a doubt regarding the registration of
the F.I.R. as the Head Constable, who registered the FIR, was not examined
by the prosecution. Perusal of the F.I.R. would go to show that after receipt
of the intimation from the Government Rajaji Hospital, Madurai, he went to
the hospital at about 8.45 p.m., where he found the deceased in an
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Crl.A.(MD).No.7 of 2019
unconscious state. Since nobody was available near the deceased, he was
waiting for the arrival of P.W.1, thereafter, recorded the statement of P.W.1
at 1.30 a.m. Then, at about 03.00 a.m. he registered the F.I.R. However, P.W.
1, in his the cross-examination, has stated that the statement was obtained
from him only at 10.00 a.m., on 21.03.2011 which creates a doubt about the
complaint given by P.W.1 and the registration of the F.I.R.
24. That apart, from the evidence of prosecution witnesses, it could be
seen that the accused also accompanied the deceased in the ambulance and
she was present in the hospital, at the time of treatment. Viewing it from the
natural conduct, had the accused committed the crime, she ought not to have
accompanied the deceased and also being with her in the hospital.
25. The learned Additional Public Prosecutor would vehemently
contend that admittedly, both the deceased and the accused were living
together at the time of occurrence and the accused was in the house. Hence,
under Section 106 of the Indian Evidence Act, the burden is on her to
explain that how the occurrence had taken place. Absolutely, there is no
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Crl.A.(MD).No.7 of 2019
explanation from the accused regarding the cause and, therefore, it should
be presumed that the accused only committed the crime. The said contention
cannot be accepted, for the simple reason that, Section 106 of the Indian
Evidence Act, cannot be applied directly and if only the prosecution has
discharged its initial burden of establishing the genesis of the crime and
made out a prima facie case against the accused, the burden would shift on
the accused. That apart, from a perusal of the records, it could be seen that
absolutely there is no material to show that at the time of occurrence, the
accused was along with the deceased at home. The prosecution has not
discharged its initial burden in making out a prima facie case against the
accused and therefore, burden not shifted on the accused to offer any
explanation.
26. Considering all these circumstances, we are of the considered
view that it is unsafe to believe the doubtful oral dying declaration of the
deceased to convict the accused, in the absence of any other corroborating
materials and the accused is entitled for acquittal.
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Crl.A.(MD).No.7 of 2019
27. In the result, the Criminal Appeal is allowed and the conviction
and sentence imposed on the appellant, by the learned Sessions Judge,
Mahalir Neethimandram, Madurai (FAC), in S.C.No.315 of 2011, dated
29.11.2018, are set aside. The appellant is acquitted from the charge levelled
against her. Fine amount, if any, paid by the appellant/sole accused shall be
refunded to her. Bail bond, if any, executed by her also shall stand
cancelled.
[V.B.D.,J.] & [S.A.I.,J.]
26.10.2021
Index : Yes / No
Internet : Yes / No
akv
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.
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Crl.A.(MD).No.7 of 2019
To
1.The Sessions Court,
Mahalir Neethimandram,
Madurai (FAC)
2.The Inspector of Police,
Thirunagar Police Station,
Madurai District.
3.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.
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Crl.A.(MD).No.7 of 2019
V.BHARATHIDASAN,J.
and
S.ANANTHI,J.
akv/
JUDGMENT MADE IN
Crl.A.(MD).No.7 of 2019
26.10.2021
https://www.mhc.tn.gov.in/judis
