Madras High Court
Mariya Leela vs State Represented By on 21 November, 2023
Author: M.Sundar
Bench: M.Sundar
2023/MHC/5135
Crl.A.(MD) No.718 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 17.10.2023
Pronounced on 21.11.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
Crl.A.(MD) No.718 of 2022
Mariya Leela
W/o.Packiyaraj ... Appellant
Vs.
State Represented by
The Inspector of Police,
Valliyoor Police Station,
Tirunelveli District. (Crime No.287/2019) ... Respondent
Criminal Appeal filed under Section 374(2) of the Code of Criminal
Procedure, 1973 [Act 2 of 1974] praying to call for the records and set
aside the Judgment and Conviction dated 27.10.2022 passed by the
Principal Sessions Court, Tirunelveli in S.C.No.385 of 2021 and acquit
the appellant.
For Appellant : Mr.P.T.Ramesh Raja
assisted by Mr.P.Suresh
For Respondent : Mr.R.Meenakshi Sundaram
Additional Government Pleader
assisted by Mr.A.Chinna Karuppaiya
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Page No. 1 of 32
Crl.A.(MD) No.718 of 2022
JUDGMENT
R.SAKTHIVEL, J.
This Criminal Appeal is preferred by the appellant assailing the
'Judgment dated 27.10.2022' [for the sake of convenience and clarity,
hereinafter referred to as 'impugned Judgment'] passed by the 'Principal
Sessions Court, Tirunelveli' [for the sake of convenience and clarity,
hereinafter referred to as 'Trial Court'] in Sessions Case No. 385 of 2021
in which the appellant [for the sake of convenience and clarity, the
appellant is called Accused as described before the Trial Court] was
convicted for the offence punishable under Section 302 of 'The Indian
Penal Code' [for the sake of convenience and clarity, hereinafter referred
to as 'IPC'] and sentenced to undergo Rigourous Imprisonment for Life
and also ordered to pay a fine of Rs.5,000/-, in default thereof, to undergo
Rigourous Imprisonment for a further period of 4 years.
2. The case of the prosecution, in brief, as follows:
For ease of understanding, the relationship between the deceased,
accused and witnesses (P.W.1 to P.W.7) is depicted below in the form of a
genealogical chart.
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2.1. Deceased-Packiyaraj was the owner of a two-storey house
(Door No.143/6), as well as two small tiled houses (Door Nos.144/6 and
145/6), both accompanied by vacant land surrounding them, collectively
spanning 7 ¾ cents in Pallivasal Street, T Kallikulam. Decto Victor (P.W.
1) and Sabarai Anandhan (P.W.2) were residing in the two-storey house.
The deceased was living in the tiled house (Door No.145/6) situated to the
west of the two-storey building. Deceased and Accused, who are husband
and wife, had a strained relationship for the past 15 years from the date of
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occurrence. They generally have food from P.W.1’s house. The deceased
had intended to give the tiled houses along with the vacant land
surrounding it to P.W.2 and the two-storey building along with the
surrounding vacant land to P.W.1. The deceased denied the accused (wife)
any property. Hence, the accused quarrelled with the deceased on
09.09.2019 when they were inside the tiled house (Door No.145/6).
Mr.Rose Andro (P.W.7) – Son-in-law of them pacified the quarrel and
then left the spot. Thereafter, when the deceased was lying down on bed,
at about 10.00 a.m., the accused quarrelled again with the deceased,
abused him using filthy language, poured kerosene over him and set him
ablaze using a fire torch. The deceased ran out of the house raising alarm.
P.W.1 to P.W.4 rushed there, put off the fire and took the deceased to a
private hospital for first-aid and thereafter admitted him to Government
Medical College Hospital, Tirunelveli at 12.05 p.m.
2.2. The duty doctor at the burn ward there, sent a requisition letter
to the Judicial Magistrate for recording dying declaration. The Judicial
Magistrate (P.W.20) received the said requisition letter at 1.45 p.m. while
he was in Court and rushed to the burn ward and recorded the statement of
the deceased at 2.00 p.m.
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2.3 Special Sub-Inspector of Police (P.W.19) received intimation
from the Government Hospital, Tirunelveli regarding the admission of the
deceased upon which he went to the hospital and recorded the complaint
statement at 5.00 p.m. from the deceased in the presence of P.W.1
obtaining P.W.1’s signature as a witness. Thereafter, he registered an FIR
in Crime No.287 of 2019 under Sections 294(b) and 307 of IPC. The
Inspector of Police (P.W.21) after receiving a copy of the FIR and the
complaint, rushed to the place of occurrence and prepared Observation
Mahazar (Ex.P.13) and Rough Sketch (Ex.P.14) in the presence of
witnesses Mr.Anthoni Dinesh Raja (L.W.16) and Mr.Gnana Chandran
(L.W.17) and recovered the P.M.O.1 [Fire Torch - wooden stick with soot
deposit wound by a partly burnt cotton cloth at one side] and P.M.O.2 [a
partly burnt cotton towel] under the Seizure Mahazar.
2.4. On the same day at 10.30 p.m., despite medical intervention,
the deceased passed away. The Duty Doctor (P.W.13) intimated the said
fact to the police and then the police altered the Sections from 294(b) and
307 of IPC to Sections 294(b) and 302 of IPC and sent the alteration
report (Ex.P.16) to the concerned Judicial Magistrate Court.
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2.5. Thereafter, P.W.21 conducted inquest upon the dead body of
the deceased and the inquest report is marked as Ex.P.17. Thereafter, he
sent the dead body for postmortem examination. Then, he recorded the
witness statements.
2.6. On 10.09.2019, at 3.30 p.m., P.W.21 arrested the accused in the
presence of witnesses Mr.Savarimani (P.W.11) and Mr.Jagan Kumar
(P.W.12). Then, the Accused voluntarily gave a confession and P.W.21
recorded the same. The admissible portion of the confession is marked as
Ex.P.18. Then, at 05.45 p.m., the Accused produced a matchbox (P.M.O.
3), two burnt matchsticks (P.M.O.4) and one plastic bottle (P.M.O.5)
hidden in her cowshed. P.W.21 seized the said articles under Ex.P.19
Seizure Mahazar.
2.7. At 6.30 p.m., the Accused led P.W.21 to Kallikullam Ground
situated in front of a mosque and produced a hidden ‘bathing
mug’ (P.M.O.6). P.W.21 seized the said articles under Ex.P.20 Seizure
Mahazar. Thereafter, he was transferred, so he handed over the case file to
his successor P.W.22.
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2.8. P.W.22 took the case file on 20.09.2019 and examined Doctor
Prasanna (P.W.15) who conducted the post-mortem, received the post-
mortem report and recorded his statement. He examined other witnesses
including forensic science officer and concluded his investigation and
filed final report dated 16.03.2020 against the Accused under Section
294(b) and 302 of IPC before the Judicial Magistrate on 03.08.2020.
2.9 The learned Judicial Magistrate registered the case in P.R.C.No.
14/2020. Since the offence under Section 302 is exclusively triable by
Sessions Court, he committed the case file and the Accused to the Trial
Court. After hearing both sides, the Trial Court framed Charges under
Sections 294(b) and 302 of IPC on 10.11.2021. To prove its case, the
prosecution examined P.W.1 to P.W.22 (Witnesses) and marked Ex.P.1 to
Ex.P.24 (Documents) and P.M.O.1 to P.M.O.6 (Material Objects).
2.10. On the defence side, Mr.Thiru.Antony Savarimuthu was
examined as D.W.1 who is none other than the own brother of the
Accused. No Exhibits or Materials Objects were marked on the defence
side. When the Accused was examined under Section 313(1)(b) of
Criminal Procedure Code, 1973 [Act No.2 of 1974] (for the sake of
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convenience and clarity, hereinafter referred to as 'Cr.P.C'), she denied the
prosecution evidence and stated that from 08.09.2019 to 10.09.2019 at
05.15 a.m., she stayed in her brother's house (D.W.1's house). In short,
she took a defence of 'alibi'.
3. The Trial Court after hearing both sides, concluded that the
prosecution has proved the offence under Section 302 of IPC but failed to
prove the offence under Section 294(b) of IPC. Accordingly, the Trail
Court convicted and sentenced the Accused as stated supra in paragraph
No.1.
4. Feeling aggrieved with the conviction recorded and sentence
imposed by the trial court, the Accused has preferred this Criminal Appeal
under Section 374(2) of Cr.P.C.
5. This Court has perused the case files and the Memorandum of
grounds of appeal. The following points arose for consideration:-
i. Whether the conviction and sentence rendered by the
Trial Court solely based on the dying declaration is to
be sustained in this appeal?
ii. Whether there exist any reason to interfere with the
Impugned Judgement?
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Discussion and Decision for point Nos.(i) & (ii)
6. The Accused and the deceased are wife and husband
respectively. P.W.1 to P.W.4 are their family members. P.W.5 and P.W.6
are their daughters. P.W.7 is the husband of P.W. 6. The deceased was the
owner of a two-storey house (Door No.143/6), as well as two small tiled
houses (Door Nos.144/6 and 145/6), both accompanied by vacant land
surrounding them, collectively spanning 7 ¾ cents in Pallivasal Street, T
Kallikulam. Decto Victor (P.W.1) and Savari Anandhan (P.W.2) were
residing in the two-storey house. The deceased was living in the tiled
house (Door No.145/6) situated to the west of the two-storey building.
There is no dispute with the abovementioned facts.
7. The learned counsel for the Accused argued as follows.
i. The Trial Court failed to consider the evidence of P.W.2
that the accused owns other properties.
ii. The Trial Court failed to consider the evidence of P.W.5
and P.W.6 that the deceased was mentally ill.
iii. The Trial Court failed to properly appreciate the
evidence of P.W.19 and Ex.P.8 (Statement of the
deceased).
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iv. The Trial Court failed to consider the strained
relationship between the accused and the deceased and
the possibility of the deceased falsely implicating the
accused.
v. The Trial Court failed to consider the fact that the
prosecution had failed to prove the presence of the
accused in the place of occurrence at the time of the
incident.
vi. The Trial Court failed to consider the fact that, except
the official witnesses, all other witnesses have not
supported the prosecution case.
vii.The Trial Court failed to appreciate the evidence of
D.W.1.
In support of his arguments, the learned counsel relied on Irfan’s case
[Irfan @ Naka Vs. The State of Uttar Pradesh, Neutral Citation : 2023
INSC 758]. Accordingly, he prayed to allow the appeal and set aside the
conviction and sentence rendered by the trial court.
8. Per contra, the learned Additional Public Prosecutor appearing
for the State argued as follows:
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i. P.W.1 to P.W.7 are close relatives. Naturally, they may
not support the case of the prosecution. However,
evidence of P.W.1 to P.W.7 reveals the fact that the
Accused and the deceased had a strained relationship and
the deceased died due to burn injuries. Though P.W.1 to
P.W.7 have not fully supported the prosecution's case and
merely because the prosecution chose to treat them as
hostile witnesses and cross-examined them, their
evidence cannot be rejected in toto. In this regard, he
relied on decision of the Hon'ble Supreme Court in
Ramesh Harijan’s case [Ramesh Harijan Vs. State of
U.P., reported in AIR 2012 Supreme Court 1979]
ii. The occurrence took place at 10.00 a.m. on 09.09.2019.
Immediately, P.W.1 and P.W.2 took the deceased to a
private hospital for first aid and thereafter, took him to
Government Hospital at 12.05 p.m.. The duty doctor
there requested the Judicial Magistrate to record
statement of the deceased. The Judicial Magistrate rushed
to the Government Hospital and recorded the victim’s
statement (Ex.P.11) after obtaining a fitness certificate
from doctor. Further, he certified that throughout his
examination, the deceased was in a fit state of mind.
iii. On receipt of the intimation from the Government
Hospital, P.W.19 came to the hospital and recorded the
complaint statement (Ex.P.8) from the deceased in the
presence of P.W.1. The signature of P.W.1 as a witness
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was obtained in the said complaint statement. P.W.1 has
not denied the said fact in his chief examination.
iv. The prosecution has proved the fact that the deceased
died due to complications of antemortem burns by
examining P.W.15 Doctor and Ex.P5 - Post-mortem
Certificate.
v. P.W.21 collected P.M.O.1 and P.M.O.2 and sent the same
for forensic science examination. FSL report (Ex.P.22)
proves that P.M.O.1 and P.M.O.2 have kerosene in them.
vi. The prosecution has proved Ex.P.8 - Complaint
Statement given by the deceased.
Accordingly, he prayed to sustain the conviction and sentence rendered by
the Trial Court and to dismiss this appeal. In support of his argument, he
relied on the decision of the Hon'ble Supreme Court in Veerpal's case
[State of U.P. Vs. Veerapal and another, reported in (2022) 4 SCC 741].
9. This court has considered submissions made on either side and
perused the case file in its entirety.
10. The prosecution examined P.W.1 to P.W.4 as eye witnesses.
Their depositions are as follows:
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10.1. P.W.1 in his evidence has admitted that the relationship
between the deceased and the accused was strained. He deposed that he
took the deceased to the hospital and when the police came to obtain
complaint statement, the deceased was conscious and talking. He further
admitted that he signed in Complaint Statement (Ex.P.8) and that
‘Signature (Ex.P1)’ found in ‘Complaint Statement (Ex.P.8)’ is his. His
deposition favours the prosecution only to this extent.
10.2. P.W.2 deposed that the deceased died due to burn injuries;
that he along with P.W.1, P.W.3 and P.W.4 extinguished the fire over the
deceased’s body and that they rushed the deceased to the hospital. He
further deposed that the accused and the deceased would often be
quarrelling in the house.
10.3. P.W.3 and P.W.4 deposed that the deceased died due to burn
injuries. P.W.4 further deposed that the accused and the deceased had a
strained relationship.
11. P.W.5 to P.W.7 are not eyewitnesses. Their depositions are as
follows:
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11.1. P.W.5 deposed that the deceased died due to burn injuries and
the accused lived in the house of the deceased. Further, she admitted that
the relationship between the deceased and the accused was strained. She
further deposed that, on 08.09.2019, the deceased came to her house and
told her about the issues that were going on with the accused and that both
had been to police station once concerning the issues going on between
them.
11.2. P.W.6 deposed in her chief examination that there were
disputes between the accused and the deceased owing to which the
deceased committed suicide by burning himself with kerosene on
09.09.2019. She further deposed that P.W.1 to P.W.4 are residing in the
same compound and there were some disputes between the deceased and
the accused concerning the house properties. In her cross-examination by
the defence side, she deposed that the accused has more properties in her
name than the deceased and hence, there is no necessity to ask for more
property from the deceased. She further deposed that, out of frustration,
the deceased burnt himself with kerosene.
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11.3. P.W.7 in his chief examination has deposed that the deceased
died due to burn injuries; that, at that time he was at Valliyoor; that he and
one Justin went to the Government Hospital and saw the deceased with
burn injuries on his body and that, at that time, the Judicial Magistrate
came to the Hospital to record statement from the deceased. Despite being
cross-examined under Section 154 of Cr.PC, he did not support the case
of the prosecution fully.
12. P.W. 8 and P.W.9 are neighbours. Though the prosecution
examined them as eye witnesses, they did not support the case of the
prosecution.
13. P.W.14 – Doctor who gave first aid to the deceased in the
private hospital, deposed that the deceased was brought to the Hospital by
P.W.1 and P.W.2; that he gave first-aid only and that he did not record the
particulars of the deceased.
14. P.W.20 was the Judicial Magistrate No.I of Tirunelveli. He
deposed that on 09.09.2019 at 01.45 p.m., he received requisition from
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Government Hospital, Tirunelveli for recording the statement of the
deceased. He went to the Hospital at 02.00 p.m. and the duty doctor
identified the deceased for him. After certification by the doctor that the
deceased was fit to provide a statement and after himself ascertaining that
the deceased was conscious and in a fit state of mind, he recorded the
deceased’s statement. Further, he deposed that, throughout his
examination, the deceased was conscious and in a fit state of mind. To
that effect, he obtained a certificate from the doctor.
15. P.W.19 was the Special Sub-Inspector of Police of Valliyur
Police Station. On receipt of the intimation concerning the admission of
the deceased from the Government Hospital, he rushed there and recorded
Complaint Statement (Ex.P8) from the deceased in the presence of P.W.1
and also obtained the signature of P.W.1 as a witness. He clearly deposed
the above said fact. Despite cross-examination, his evidence has not been
shaken by the prosecution.
16. P.W.13 - Doctor who was on duty on 09.09.2019 in the burn
ward, deposed that the deceased was admitted to the hospital at 12.05 p.m.
and despite medical intervention, the deceased passed away at 10.30 p.m.
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on the same day. He further deposed that he sent the intimation of death
(Ex.P.2) to the police.
17. P.W.15 - Doctor who conducted post-mortem deposed that the
deceased died due to burn injuries. Relevant portion from Ex.P.5 Post-
mortem report reads as follows:-
“ ... APPEARANCE FOUND AT THE POST
MORTEM:
Moderately built and nourished body of a male.
Fingr and toe nails pale.
THE FOLLOWING ANTEMORTEM INJURIES
WERE NOTED:
Burns seen over face, front and back of chest, front
and back of left side of abdomen, left thigh and leg,
inner aspect of right thigh and leg and over left
hand. Base of burnt area is red in colour.
OTHER FINDINGS:
Peritoneal Cavity: No free fluid.
Pleural cavity: No free fluid.
Heart: Normal, coronaries shows atheromatous
plaques.
Hyoid bone: Intact.
Larynx and Trachea: No soot particles.
Stomach: Contains about 10 ml of colourless fluid,
nil specific smell and mucosa congested.
Lungs, Liver, Spleen & Kidneys: Normal, c/s
congested.
Small Intestine: Contains about 10 ml of colourless
fluid, nil specific smell and mucosa congested.
Bladder: Contains 20 ml of urine.
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Brain: Oedematous, c/s congested.
Viscera preserved and sent for Chemical Analysis.
....
FSD Ref:T.No.7398/2019/TIN/Tox.H/2282/2019,
dated 03/10/19.
Report received on 31.10.19.
Viscera negative for poison.
FINAL OPINION:
THE DECEASED WOULD APPEAR TO HAVE
DIED DUE TO COMPLICATIONS OF
ANTEMORTEM BURNS. ...”
He further deposed that, such injuries on a person's back, sustained while
lying down, may result from the individual lying down on one side. From
the above evidence of the doctor, it is clear that the deceased died due to
complications of antemortem burns.
18. P.W.21- Inspector of Police deposed that he went to the place of
occurrence on 09.09.2019, prepared Observation Mahazar (Ex.P.13) and
Rough Sketch (Ex.P.14) and recovered P.M.O.1 - Fire Torch (wooden
stick with soot deposit wound by a partly burnt cotton cloth at one side)
and P.M.O.2 -a partly burnt cotton towel under the Seizure Mahazar
(Ex.P.15). Though P.W.21 deposed that he visited the place of occurrence
in the presence of two witnesses namely Mr.Anthoni Dinesh Raja (L.W.
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16) and Mr.Gnana Chandran (L.W.17) the prosecution did not examine
the said witnesses in Court. It is to be noted that, Ex.P.15 - Seizure
Mahazar and Section 161 (3) Statement were received by the Judicial
Magistrate on 10.09.2019 itself. Further, P.MO 1 and PMO2 were sent to
Forensic Science Examination and the consequent FSL report revealed the
presence of kerosene in them and hence there is no reason to disbelieve
the evidence of P.W.21. Needless to mention that, Law does not mandate
obtaining witness signature in Observation Mahazar and Seizure Mahazar.
19. P.W.21 further deposed that after conducting inquest on the
dead body and examination of the witnesses, he arrested the accused on
10.09.2019 at 3.30 p.m. in the presence of Mr.Savarimani (P.W.11) and
Mr.Jegankumar (P.W.12). Further, he deposed that the accused gave a
voluntary confession in the presence of the above said witnesses and
seized P.M.O.3 to P.M.O.6. P.W.11 and P.W.12 did not support the case
of the prosecution. Moreover, FSL Report does not reveal any presence of
kerosene in P.M.O.3 to P.M.O.6. Hence, confession and recovery of
P.M.O.3 to P.M.O.6 are doubtful. The prosecution has not proved the
said facts beyond reasonable doubt.
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20. From the above evidence and discussion, it is clear that, the
deceased died due to burn injuries caused while lying down on one side.
The defence theory is that the deceased committed suicide. To be noted,
after the death of the deceased, Ex.P.11 - Statement given by the deceased
to the Judicial Magistrate which describes the cause of his death and the
circumstances of the transaction leading to his death, is elevated to the
position of dying declaration which is admissible under Section 32 of the
Indian Evidence Act, 1872 (for the sake of convenience and clarity,
hereinafter referred to as Evidence Act).
21. In Ex.P.11 - Statement, the deceased has clearly stated that the
accused who wanted property, quarrelled with the deceased and poured
kerosene over him and set him ablaze and that P.W.1 rescued him to the
hospital. To be noted, Ex.P.11 - Statement is the earliest statement on
record, given by the deceased to the Judicial Magistrate. The Judicial
Magistrate recorded the same as per the procedure without any deviation.
Hence, Ex.P.11 - Statement inspires confidence of the court.
22. Ex.P.8 - Complaint Statement was recorded subsequent to Ex.P.
11 - Statement. In Ex.P.8, P.W.1 has signed as a witness. P.W.1 in his
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chief examination has admitted the said fact and his signature. In his
cross-examination, he deposed that he was not aware of the contents of
Ex.P8. It is to be noted, that P.W.1 is none other than the son of the
accused. Hence, naturally, as an afterthought, he might now want to save
his mother ie., the accused. It is apposite to mention here that, though
P.W.1 to P.W.7 did not support the case of the prosecution fully, their
evidence cannot be rejected in toto. In this regard, the prosecution relied
on Ramesh Harijan’s case referred to supra. The releavant portion of the
Judgement reads thus:
“ 18. It is a settled legal proposition that the
evidence of a prosecution witness cannot be rejected
in toto merely because the prosecution chose to treat
him as hostile and cross-examine him. The evidence
of such witnesses cannot be treated as effaced or
washed off the record altogether but the same can
be accepted to the extent that their version is found
to be dependable on a careful scrutiny thereof.
(Vide: Bhagwan Singh v. State of Haryana, AIR
1976 SC 202; Rabindra Kumar Dey v. State of
Orissa, AIR 1977 SC 170; Syad Akbar v. State of
Karnataka, AIR 1979 SC 1848 and Khujji v. State of
M.P., AIR 1991 SC 1853)
19. In State of U.P. v. Ramesh Prasad Misra
& Anr., AIR 1996 SC 2766, this Court held that
evidence of a hostile witness would not be totally
rejected if spoken in favour of the prosecution or the
accused but required to be subjected to close
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scrutiny and that portion of the evidence which is
consistent with the case of the prosecution or
defence can be relied upon. A similar view has been
reiterated by this Court in Balu Sonba Shinde v.
State of Maharashtra, (2002) 7 SCC 543, Gagan
Kanojia & Anr. v. State of Punjab, (2006) 13 SCC
516; Radha Mohan Singh @ Lal Sageb & Ors. v.
State of U.P., AIR 2006 SC 951, Sarvesh Narain
Shukla v. Daroga Singh & Ors., AIR 2008 SC 320
and Subbu Singh v. State by Public Prosecutor,
(2009) 6 SCC 462 : (2009 AIR SCW 3937).
Thus, the law can be summarised to the effect
that the evidence of a hostile witness cannot be
discarded as a whole, and relevant parts thereof
which are admissible in law, can be used by the
prosecution or the defence. (See also: C. Muniappan
v. State of Tamil Nadu, AIR 2010 SC 3718]; and
Himanshu @ Chintu v. State (NCT of Delhi), (2011)
2 SCC 36 : AIR (2011) 1 SC (Cri) 426).”
23. Learned counsel for the accused relied on Irfan’s case referred
to supra. The facts of this case captured in Paragraph Nos.5 to 15 of the
Judgement read thus.
“5. The appellant-convict was married twice.
The first marriage was with a lady by name Ishrat,
who was the daughter of his uncle Mohammad Yunus
(PW-1). His second marriage was solemnised with a
lady named Afsana. One son by name Islamuddin
(deceased) was born in wedlock with Ishrat. The
convict had two brothers, namely, Irshad (deceased)
and Naushad (deceased), who lived along with him
and his sister Soni (PW-4). Another brother by name
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Shanu alias Shahnawaz (PW-2) of the convict lived
in the neighbourhood.
6. It is the case of the prosecution that the
three deceased persons more particularly Islamuddin
(convict’s son) was highly opposed to the second
marriage of his father, i.e., the appellant-convict.
Islamuddin (deceased) was even once beaten by the
appellantconvict as he had offered lot of opposition
to the second marriage of his father. Islamuddin was
also threatened by the appellant-convict that he
would be thrown out of the house. Deceased
Naushad (appellant-convict’s brother) was in Saudi
Arabia. He had just returned to Bijnore from Saudi
Arabia on 04.08.2014.
7. Few days before the date of the incident, the
appellant-convict had beaten his son (deceased
Islamuddin) and at that point of time, Naushad and
Irshad (deceased persons) had intervened to save
Islamuddin. On 05.08.2014, at around 05.30 pm,
PW-2 Shanu (convict’s brother) went to see deceased
Naushad and had dinner with PW-4 (convict’s
sister), Islamuddin and Irshad. The PW-2 also
invited the appellant-convict for dinner. The
appellant-convict lived in the same house as PW-4
and Naushad, but on a different floor.
8. On 05.08.2014, at around 10.00 pm, after
the dinner was over, PW4 asked the PW2 to stay
overnight as it was too late. Naushad and Islamuddin
slept in one room. As Irshad wanted to sleep on the
roof, the appellant-convict advised him to sleep
inside the room, as the weather was bad. Thus, all
the three deceased persons ended up sleeping in one
room.
9. PW-2 claims that the door of the room in
which, the three deceased were sleeping, was open.
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However, according to the PW-4, it was locked from
inside. The PW-2 lived at a distance of 200 metres
from the place of the incident. It is pertinent to note
that the High Court disbelieved the presence of the
PW-2 at the place of occurrence, i.e., the house.
10. On 06.08.2014, at around 12.30 am, the
PW-2 is said to have woken up to see flames and
smoke coming from the room, where the deceased
persons were sleeping. The PW-2 and his sister Soni
(PW-4) claim to have seen the appellant-convict
setting the room on fire and thereafter, fastening the
door latch from outside and running away.
11. It is the case of the prosecution that the
PW-2 and PW-4 opened the door and at that point of
time, saw the appellant-convict running from the
roof towards the stairs. According to the case of the
prosecution, Amzad and one another person by name
Shafiq (both not examined) also saw the appellant-
convict running away.
12. The PW-1 (Original first informant- uncle
of the appellant-convict) was sleeping in his room in
his own house at the time of the incident. The uncle’s
house is at the distance of about 200 metres from the
place of the occurrence.
13. The relatives first took Islamuddin, Irshad
and Naushad to one Pooja Hospital situated at
Najibabad in a vehicle. The Hospital declined to
admit them. All the three injured were thereafter,
taken to the hospitals at Bijnore and Meerut and
finally were admitted to the Dr. Ram Manohar
Lohiya Hospital, Delhi (RML Hospital).
14. On 06.08.2014, early in the morning at
around 6.10 am all the three injured were brought to
the casualty ward of the RML Hospital by Shafiq
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Ahmad (not examined). At 9.00 am, PW-1 (first
informant) lodged a First Information Report with
the Najibabad Police Station. In the FIR, the first
informant alleged that it was the appellant-convict,
who set his own son and two real brothers on fire,
while they were sleeping on account of personal
animosity.
15. The dying declaration of deceased Irshad
was recorded on 07.08.2014 by the A.S.I. at the RML
Hospital. Irshad passed away on 09.08.2014. In the
same way, the dying declaration of Islamuddin was
recorded on 07.08.2014. Islamuddin passed away on
18.08.2014. It appears that the dying declaration of
Naushad could not be recorded. Naushad also
passed away on 18.08.2014. The two dying
declarations were videographed in the mobile of the
A.S.I.”
24. Contrary to the case in hand, in Irfan’s case, the following
deviations can be observed.
i. The investigating officer did not call magistrate to record
the dying declaration.
ii. Whether the injured persons were conscious and in a fit
state of mind to give a dying declaration was not
ascertained and no certificate was issued by the
concerned doctor in this regard.
Further, the dying declaration therein did not inspire confidence of the
court inter-alia because of the following reasons.
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i. There were contradictory statements concerning
whether the room was bolted from outside or inside.
ii. A combined reading of both the dying declarations
would show that the deceased were rescued with the
help of neighbours. However, no such neighbour was
examined as witness.
iii. Both the dying declarations are silent about the presence
of P.W.2 and P.W.4 in the scene of occurrence.
Further, in the case on hand, it can be easily gathered from the facts and
circumstances that the deceased was in expectation of death; the deceased
was conscious, fit and in a stable mind-set to make the dying declaration;
the deceased had a good opportunity to observe the incident as it
happened during the daytime when he was awake; the dying declaration
recorded soon after he was admitted in the hospital duly by the Judicial
Magistrate is consistent throughout and the Judicial Magistrate was
satisfied that there was no tutoring of any sort. Hence, Irfan’s case can be
distinguished from the case on hand.
25. The defence of the accused is that the deceased committed
suicide by burning himself with kerosene owing to his mental illness.
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D.W.1 who is the brother of the accused was examined in order to prove
the alleged defence. However, the defence side did not produce any
medical evidence or independent evidence to suggest that the deceased
was mentally ill. P.W.1 to P.W.4 have not mentioned anything about the
alleged mental illness in their evidence. Further, no suggestion was put to
them in this regard in their cross-examination. Further, the accused took a
plea of alibi that from 08.09.2019 to 10.09.2019 at 5.30 am, she was at
D.W.1’s house. The plea of alibi has been introduced only at a later point
of time ie., during the cross-examination of the investigation officer and
Section 313(1)(b) Examination. Plea of alibi is relevant and admissible
under Section 11 of the Evidence Act. As per Section 103 of the
Evidence Act, the burden lies upon the accused to establish the said plea.
D.W.1 deposed that he is residing at Duraikudiyiruppu Village which is 3
k.m. away from the place of occurrence. It is to be noted that the date of
occurrence was 09.09.2019 at 10. a.m. Immediately, after the occurrence,
the deceased was admitted in the Hospital. If really, the accused was at
his brother's house at the time of occurrence, naturally, she would have
come to know the incident as she is not far away and rushed to the
Hospital. Hence, the evidence of D.W.1 that they knew about the
occurrence only on 10.09.2019 at 05.15 a.m. is not believable. Further, the
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arguments that accused owns property more than the deceased has not
been established. Even if established, it would not have an impact on the
case. Except D.W.1, no independent witness was examined to establish
the alleged plea of alibi. Further, D.W.1 is an interested witness, hence,
his evidence needs corroboration. Hence, this court is of the opinion that
the defence taken up by the accused side has not been proved as per law.
26. It is a settled position of law that conviction can be recorded
solely based on dying declaration if it inspires confidence of the court.
Recently, the Hon'ble Supreme Court in Veerpal's case [State of U.P. Vs.
Veerapal and another, reported in (2022) 4 SCC 741] held as follows:
“16. Now, on the aspect, whether in the absence of
any corroborative evidence, there can be a conviction
relying upon the dying declaration only is concerned, the
decision of this Court in Munnu Raja [Munnu Raja v. State
of M.P., (1976) 3 SCC 104 : 1976 SCC (Cri) 376] and the
subsequent decision in Paniben v. State of Gujarat
[Paniben v. State of Gujarat, (1992) 2 SCC 474 : 1992
SCC (Cri) 403] are required to be referred to. In the
aforesaid decisions, it is specifically observed and held that
there is neither a rule of law nor of prudence to the effect
that a dying declaration cannot be acted upon without a
corroboration. It is observed and held that if the Court is
satisfied that the dying declaration is true and voluntary it
can base its conviction on it, without corroboration.
Similar view has also been expressed in State of U.P. v.
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Ram Sagar Yadav [State of U.P. v. Ram Sagar Yadav,
(1985) 1 SCC 552 : 1985 SCC (Cri) 127] and Ramawati
Devi v. State of Bihar [Ramawati Devi v. State of Bihar,
(1983) 1 SCC 211 : 1983 SCC (Cri) 169] . Therefore, there
can be a conviction solely based upon the dying
declaration without corroboration.
17.Khushal Rao v. State of Bombay [Khushal Rao v.
State of Bombay, 1958 SCR 552 : AIR 1958 SC 22] is a
watershed judgment on the law on the evidentiary value of
dying declarations. This Court laid down the following
principles as to the circumstances under which a dying
declaration may be accepted, without corroboration : (AIR
pp. 28-29, para 16)
“16. On a review of the relevant provisions of
the Evidence Act and of the decided cases in the
different High Courts in India and in this Court,
we have come to the conclusion, in agreement
with the opinion [Guruswami Tevar, In re, 1939
SCC OnLine Mad 384] of the Full Bench of the
Madras High Court, aforesaid, (1) that it cannot
be laid down as an absolute rule of law that a
dying declaration cannot form the sole basis of
conviction unless it is corroborated; (2) that
each case must be determined on its own facts
keeping in view the circumstances in which the
dying declaration was made; (3) that it cannot
be laid down as a general proposition that a
dying declaration is a weaker kind of evidence
than other pieces of evidence; (4) that a dying
declaration stands on the same footing as
another piece of evidence and has to be judged
in the light of surrounding circumstances and
with reference to the principles governing the
weighing of evidence; (5) that a dying
declaration which has been recorded by a
competent Magistrate in the proper manner, that
is to say, in the form of questions and answers,
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and, as far as practicable, in the words of the
maker of the declaration, stands on a much
higher footing than a dying declaration which
depends upon oral testimony which may suffer
from all the infirmities of human memory and
human character, and (6) that in order to test the
reliability of a dying declaration, the Court has
to keep in view, the circumstances like the
opportunity of the dying man for observation, for
example, whether there was sufficient light if the
crime was committed at night; whether the
capacity of the man to remember the facts stated,
had not been impaired at the time he was making
the statement, by circumstances beyond his
control; that the statement has been consistent
throughout if he had several opportunities of
making a dying declaration apart from the
official record of it; and that the statement had
been made at the earliest opportunity and was
not the result of tutoring by interested parties.”
”
27. In this case, Ex.P.11 - Statement was duly recorded and there is
no reason to disbelieve the same. Hence, this Court is of the opinion that
the Trial Court has rightly concluded that the accused is guilty of the
offence under Section 302 of IPC. Further, there is no evidence available
on record to attract offence under Section 294(b) of IPC. Therefore, this
Court finds no reason to interfere with the impugned Judgement of the
Trial Court. Point Nos.(i) and (ii) are answered accordingly.
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28. Resultantly, the Criminal Appeal is dismissed. The conviction
and sentence rendered by the Trial Court in Sessions Case No. 385 of
2021 is sustained.
(M.S., J.) (R.S.V., J.)
21.11.2023
Index: Yes
Neutral Citation: Yes
Internet: Yes
Speaking order
jen
To
1.The Inspector of Police,
Valliyoor Police Station,
Tirunelveli District.
2.The Principal Sessions Court,
Tirunelveli.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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M.SUNDAR, J.,
and
R.SAKTHIVEL, J.,
jen
Pre-Delivery Judgment made
in
21.11.2023
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