Madras High Court
Sekar vs The State Rep. By on 30 January, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
Crl.A(MD)No.689 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.01.2025
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MS.JUSTICE R.POORNIMA
Crl.A(MD)No.689 of 2024
Sekar ... Appellant /Sole Accused
Vs.
The State rep. by
The Inspector of Police,
Aranthangi Police Station,
Pudukottai District.
(in Cr.No.162 of 2021) ...Respondent/Complainant
PRAYER : Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code to call for the entire records connected to the Judgment
in S.C.No.95 of 2021 on the file of the Sessions Judge, Mahila Court,
Pudukkottai, dated 24.03.2023 and set aside the conviction and sentence
imposed against the appellant.
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1/43
Crl.A(MD)No.689 of 2024
For Appellants : Mr.S.Sivasubramanian
For Respondent : Mr.T.Senthil Kumar,
Additional Public Prosecutor
JUDGMENT
(Judgment of this Court was delivered by R.POORNIMA, J.)
This Criminal Appeal is filed against the conviction and
sentence passed against the appellant/sole accused in the judgment dated
24.03.2023 passed by the Sessions Judge, Mahila Court, Pudukkottai in
S.C.No.95 of 2021 by convicting and sentencing the appellant for the
offence punishable under Sections 302 IPC and 294(b) IPC and
sentenced to undergo life imprisonment and to pay a fine of
Rs.2,00,000/- in default to undergo one year rigorous imprisonment for
the offence under Section 302 IPC and sentenced to undergo three years
simple imprisonment and to pay a fine of Rs.5,000/- in default to undergo
one month simple imprisonment for the offence under Section
294(b) IPC.
2. The case of the prosecution in brief is as follows:
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(a) The complainant's sister had been living with her
husband. She married Sekar, the accused two years ago. The accused is
her relative, but her sister has no children out of the wedlock. Her
husband was in the habit of consuming liquor and creating problems with
her.
(b) On 12.02.2021 at 7.45 p.m., when she was staying in her
house, the accused had come in an inebriated condition and shouted at
her, why she had not prepared dinner, abused her in a filthy language
“njtoah kfns”, and when she had questioned him as to why he
uttered unparliamentary words, he stated that he would talk only like that
and taking kerosene, poured the same on the clothes found in the house
and tried to burn it. In order to prevent him and to stop him from such
activity, she playfully told him that she will pour kerosene on herself. For
which her husband stated that, “eP ,Ue;J vd;d bra;ag;nghw. ,j;njhL
brj;J bjhiy”, snatched the bottle from her, poured kerosene on her
and lit fire with cigarette lighter on her left hip side. Thereafter, the
neighbours came to the spot and extinguished the fire and took her to
Pudukkottai Government Hospital through 108 ambulance and admitted
her. The complainant prayed for action against the accused.
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(c) P.W.7, Sivakumar, Sub Inspector of Police, Aranthangi
Police Station, based on the intimation received from Pudukottai
Government Hospital, had gone to the hospital and recorded the
statement of victim, Amirthavalli, aged about 19 years as Ex.P1 and
registered FIR in Crime No.162 of 2021, under section 294(b), 307 of
IPC under Ex.P.10. He had sent the original FIR to the Judicial
Magistrate Court, Aranthangi, and the copies were sent to the higher
officials and to the Inspector of Police for further course of action.
(d) P.W.8, Thiru.Ravindran, Inspector of Police, after receipt
of the FIR, had gone to the place of occurrence and prepared observation
mahazar-Ex.P.2 and rough sketch-Ex.P.11 in the presence of witnesses
Selvaraj and Muthuvel and had recovered half burnt turkey towel (M,O.
3) under a recovery mahazar-Ex.P.3 in the presence of the same
witnesses. He had examined the witnesses Selvaraj, Muthuvel and
recorded their statements.
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(e) On the same day, he had gone to the Government
Hospital, Pudukkottai, in order to examine the deceased. Since she was
unconscious, and he was unable to record her statement, he had enquired
her sister Periyanayagi and recorded her statement and also examined
mother-in-law of the victim, Smt.Papa, witness Thangaraj and recorded
their statements.
(f) On 13.02.2021, the victim who was undergoing treatment
succumbed to her burn injuries. Therefore, he had altered the section of
law from 294(b), 307 IPC to 294(b), 302 IPC and prepared section
alteration report Ex.P.12 and had sent the same to the concerned Judicial
Magistrate Court.
(g) Thereafter, he had conducted inquest on the dead body of
Amirthavalli in the presence of Panchayatars at the Government
Hospital Pudukottai between 11.30 am and 13.00 pm and prepared
inquest report Ex.P.13.
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(h) In order to find out the real cause for the death, he had sent
requisition letter through Tmt.Nandini, women constable 1334 to the
Government Doctor for conducting postmortem.
(i) P.W.7 Dr.Valliyappan had conducted autopsy and found
the following injuries on the dead body:-
“General Description of body found at the Post Mortem:
1. Length-148 cm.
2. Body lying in supine position, wrapped in multicolored
bed sheet, gray petticoat around loin. Hospital bandages
and medications over the burn injuries present. Venesection
wound present over right leg inner aspect.
3. Bilateral pupils dilated and fixed, and cernea hazy.
4. Smell of kerosene present.
External Examination: (Injuries):-
1. Dermo-epidermal burn injuries are present all over the
body except following areas: middle one third of face, right
palm, both axilla, front and back of lower two third of
abdomen, genitalia, whole of back of right thigh, whole of
back of both legs, both feet, both soles, Singeing of scalp
hair, eyebrows present. Blisters and blackening present at
places. Red line of demarcation present between burns and
unburnt areas. Burnt surface ares was approximately 80
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percent of the total body surface area
Internal Examination:
Scalp: Unremarkable
Skull: Unremarkable
Brain and meninges: Unremarkable.
Mouth, Pharynx & Esophagus. Soot particles mixed with
mucous present along respiratory passage.
Neck: Hyoid bone intact.
Thorax:
Chest wall, Ribs/Sternum and Cartilage: - Unremarkable
Lungs: Congested
Heart: Unremarkable
Liver: congested, portion sent for chemical analysis
Peritoneum:- Unremarkable.
Stomach: Contains 100ml of light greenish fluid present.
Walls congested, stomach with its contents sent for chemical
analysis
Spleen: Unremarkable
Intestine: Contain 10 ml of green color fluid, mucosa
congested. portion of small intestine with its contents send
for chemical analysis
Kidneys: Congested, Half of each kidney send for chemical
analysis.
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Bladder: Empty, Walls Unremarkable
Spinal column and cord: Not Exposed.
Uterus: Unremarkable
Opinion:
1. Cause of death:
The cause of death in this case would be given after receipt of
chemical analysis report. All injuries ante mortem in nature.
FINAL OPINION: -
Based on the reports referred to above, negative chemical
analysis report and the findings of postmortem examination
conducted by me, I am of opinion that cause of death in this
case is due to burn shock consequent upon burn injuries
over an area of approximately 80 percent of the total body
surface area. All injuries ante mortem in nature.”
(j) P.W.8, Thiru.Ravindran, Inspector of Police examined
Thiru.Kali Muthu, father of the victim, Muthulakshmi, Vellaiyammal,
sisters of the deceased, Maari Kannu, Chandira Kumar, Ganesan and
recorded their statements.
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(k) He had arrested the accused on 13.02.2021 at about
03.30 hours and recorded his confession statement Ex.P.6 in the presence
of P.W.5 Tmt. Sakthipriya, Village Administrative Officer and her Village
Assistant and recovered kerosene can and lighter under a recovery
mahazar Ex.P.7.
(l) Thereafter, the accused was sent to the judicial custody
and material objects in form 95 viz., Ex.P.14 and Ex.P.15 were also sent
to the Judicial Magistrate Court. He had sent the Viscera through
Women Constable Tmt.Nandini for chemical analysis.
(m) He examined P.W.4 Dr.Vijayan and had recorded his
statement and obtained the accident register Ex.P.5. He had handed over
the file to the station as he was transferred from the above post.
(n) Thereafter, P.W.9 Thiru.Senthil Maran had continued the
investigation, he examined P.W.6 Dr.Valiappan and had recorded his
statement and received postmortem report-Ex.P.8. He examined the
Assistant Director, Arun Giri, Forensic Laboratory, Trichy and received
the viscera report Ex.P.16 and Serology report Ex.P.17. He recorded the
statement of P.W.7 Thiru.Sivakumar, Women Constable Tmt.Nandini.
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(o) He had received the dying declaration statement under
Ex.P.4 from the learned Judicial Magistrate.
(p) After completing the investigation, he had filed charge
sheet on 14.06.2021 against the accused.
3. On receipt of the records, the Judicial Magistrate,
Aranthangi had taken the case on file in P.R.C.No.11 of 2021 and had
issued summons to the accused. After the appearance of the accused,
copies of all the prosecution documents and witnesses were furnished to
him free of cost under Section 207 Cr.P.C.
4. Since the offence was exclusively triable by the Sessions
Court, the learned Judicial Magistrate had committed the case records to
the Principal District and Sessions Judge, Pudukkottai, under Section
209(A) Cr.P.C. for further action.
5. The Principal District Judge, Pudukkottai had received the
case records and numbered the case in S.C.No.95 of 2021 and made over
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the same to the Sessions Judge, Mahila Court, Pudukkottai for disposal
according to law.
6. The Sessions Judge, Mahila Court, Pudukkottai had taken
the case in S.C.No.95 of 2021 and had framed charges under Sections
294(b) and 302 I.P.C against the accused. The charges were explained to
the accused and the accused had denied the charges and claimed to be
tried. Hence, the case was posted for trial.
7. In order to prove the case of the prosecution, P.W.1 to
P.W.9 were examined and Ex.P1 to Ex.P17 were marked. Material
Objects M.O.1 to M.O.4 were produced. On the side of the accused, no
witness was examined.
8. After full trial, the trial Court held the accused guilty of
the offences punishable under Sections 294(b) and 302 IPC and
convicted and sentenced to undergo life imprisonment and to pay a fine
of Rs.2,00,000/- in default to undergo one year rigorous imprisonment
for the offence under Section 302 IPC and sentenced to undergo three
years simple imprisonment and to pay a fine of Rs.5,000/- in default to
undergo one month simple imprisonment for the offence under Section
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294(b) IPC, against which, the present Criminal Appeal is filed on the
following among other grounds:-
(i) That the instant case is not a premeditated murder. Hence
Section 302 IPC will not be attracted. The Dying Declaration also states
that the accused was under intoxicated condition. So the alleged
occurrence was not a pre-planned murder.
(ii) There is a delay of 4 hours in registering the FIR. The
FIR was registered on 13.02.2021. The occurrence happened at
12.02.2021 at about 08.30 PM. The victim was immediately admitted to
the hospital at 11.00 p.m. The medical treatment to the victim began at
about 12:24 am and the Judicial Magistrate also recorded her Dying
Declaration at about 1:03 AM. The police officer did not register the FIR
immediately but they registered the FIR only at about 5.00 a.m., on
13.02.2021.
(iii) The FIR was sent to the Judicial Magistrate Court on
15.02.2021. The Section alteration report was sent to the Court on
13.02.2021 even before the FIR could reach the Court.
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(iv) That the trial court ought to have seen that the presence
of P.W.1 and mother-in-law of the victim had not been established by the
prosecution beyond reasonable doubts. Therefore, the judgment of the
trial Court is liable to be set aside and hence, he prays to allow the
Criminal Appeal.
9. The Additional Public Prosecutor appearing for the State,
argued that the complaint statement was recorded from the victim when
she was admitted in the Hospital. In Ex.P.4, the dying declaration
recorded by the Judicial Magistrate, Pudukottai, the victim stated that the
accused set fire on her when there was a quarrel between both husband
and wife. P.W.1, sister of the victim spoke about the harassment meted
out to the victim lady. Therefore, he argued that the offence against the
accused was proved by the prosecution beyond all reasonable doubt.
Hence, he prayed for dismissal of the Criminal Appeal.
10. Heard the learned counsel on either side and perused the
evidence on record.
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11. Now this court has to decide whether the judgement
rendered by trial Court is proper or liable to be set aside ?
12. On careful perusal of the entire records, the prosecution
case unfolding from the evidence of P.W.1 to P.W.9 is as follows:
(a) P.W.1, one Tmt.Periyanayagi, sister of the victim girl,
deposed that the accused is her relative viz., aunts' son. Her sister
Amirthavalli married the accused. He was in the habit of assaulting her
sister and treated her cruelly. He was jobless, both herself and sister
were doing coolie work. She had been living in a portion of the same
house of her sister, but in a separate room. Every day after consuming
alcohol, the accused had demanded money and tortured her sister. The
Complainant had helped her sister, thereafter, she was not able to give
her money and informed her sister to not ask money. Due to the constant
pressure of the accused, her sister had given her ear stud, anklet to the
accused. The accused had sold the same and consumed alcohol.
(b) The occurrence took place on 12.02.2021. At about
07:45 p.m. the accused had come to the house in an inebriated condition.
She heard some noise from the house of her sister. She had asked her
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aunt to go and see what happened. At that time, again they heard alarm
“ma;nah mk;kh fhg;ghj;J';f”, when they had entered into the house of
her sister, they witnessed her sister burning alive and she found the
accused with kerosene bottle. Immediately they picked up gunny bags
shawl (rhf;F. Jg;gl;o), threw it on the victim and extinguished the fire.
Thereafter when she enquired her sister, what had happened, her sister
informed that the accused had asked her to give dinner for which she
informed him that she had not yet prepared the same, immediately the
accused had abused her with filthy language, took the kerosene bottle,
poured the same in the clothing and when she playfully told him that she
would self immolate, the accused immediately snatched the bottle and
had poured the kerosene on her and set fire with the lighter. The villagers
gathered after hearing their hue and cry, called 108 ambulance and both
her and her aunt took her in the ambulance. Accused had tried to escape,
but the villagers compelled him to accompany the victim girl and pushed
him into the ambulance. The victim was admitted in Pudukkottai
Government Hospital. The Doctor examined her. The Police also came
on the same day and enquired her sister. Her statement was recorded by
the Police. Her sister set her left thumb impression in the said complaint.
Thereafter, she became serious. The accused absconded. Her sister died
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due to injuries sustained by her. P.W1 identified the kerosene bottle in
the Court.
(c) P.W.2 Thiru.Selvaraj spoke about the preparation of
observation mahazar and also recovery of material objects from the place
of occurrence.
(d) P.W.3, Thiru.Munikumar, Judicial Magistrate No.I,
Pudukottai deposed about the confession statement made by the
deceased. He stated that he had confirmed the mental state condition of
the deceased from the duty doctor and after obtaining the certificate of
her mental fitness by the duty Doctor, he had recorded the confession
statement of the deceased. He stated that she was conscious throughout
the recording of confession and after recording the same, he had read
over the same and thereafter her left thumb impression was obtained in
the confession statement. When he had enquired the victim how the
incident occurred, she stated that due to a quarrel she had poured
kerosene, her husband lit the fire with lighter by stating that she should
die. Thereafter, he had poured water and extinguished the fire. She
further stated that she was brought to the hospital by her sister, mother-
in-law and husband.
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(e) PW4, Dr.Vijayan, who had initially treated the victim
testified that the victim was admitted in the hospital on 12.02.2021 at
about 11.00 p.m. with 80% to 85% burn injuries in 108 ambulance, and
was treated by him. He recorded the details in the accident register as
per the information received from the relatives and the 108 ambulance
technician, but he could not remember the same. The accident register
was marked as Ex.P.5. The accident register in the column, viz., nature of
injury, it was mentioned that self-inflicted burns today at 8.30 PM in her
house.
(f) P.W.5, Tmt. Sakthipriya, Village Administrative Officer
deposed that on 13.02.2021 at about 02.00 p.m., the Inspector of Police
had informed that he was going to arrest the accused and that she should
be there to witness it. Therefore, at about 02.30 p.m, both herself and her
Assistant had gone to Kurumburmedu, from there to Kumilangundu
Village. In that village, near Pillaiyar Temple, the accused was found. He
was arrested by the Investigating Officer and he was explained the
grounds for arrest. The Investigating Officer recorded his confession
statement and also recovered the material objects from the house of the
accused.
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(g) P.W.6, Dr.Valliyappan, deposed about the postmortem
injuries found on the dead body and cause of death of the victim.
13. The learned counsel appearing for the appellant during
his argument clearly stated that he is only arguing for reduction of
sentence and not for acquittal. He further stated that the instant case is
not that of premediated murder, hence, 302 IPC will not be attracted. He
further stated that both according to the case of the prosecution as well as
the dying declaration rendered by the victim, it was proved that the death
was not due to a preplanned/pre-mediated murder or homicide caused
due to the alleged motive.
14. He further argued that the instant case does not fall under the
category of intention to cause bodily injury to the deceased. That it is
the case of the prosecution as well as an admitted fact in the dying
declaration that he was drunk/intoxicated, and the occurrence took place
while he was under the influence of alcohol. In all probability, he would
have not been in a position to comprehend the imminent danger to inflict
or cause death/injury upon the deceased. That it is not proved (a)
Whether the weapon was carried by the appellant or was picked up from
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the spot (b) Whether there was any blow aimed at the vital parts of the
body. (c) Whether the act was in the course of a sudden quarrel or sudden
fight (d) Whether the incident occured by chance or whether there was
any premeditation. (e) Whether there was any prior enmity (f) Whether
there was any grave and sudden provocation, and if so, the cause for such
grave and sudden provocation (g) Whether the person inflicting the
injury has taken advantage or has acted in a cruel and unusual manner.
15. On perusal of record, the complainant’s statement was
recorded by the Police, Aranthangi Police Station viz., P.W.7 on
13.02.2021 morning 05.00 hours. It reads as follows:
“thf;F%yk;- mKjts;sp taJ 19/2011 w/o.Nrfu;.
FKshf;Fz;L. Ridaf;fhL (p.o) mwe;jhq;fp (t.k) Gjf;Nfhl;il.
ehd; FKshf;Fz;L vd;Dk; Cupy; vdJ fztUld;
trpj;J tUfpNwd;. vdf;F jpUkzkhfp ,uz;L Mz;Lfs;
MfpwJ vq;fSf;F Foe;ijfs; ,y;iy. vdJ fztu;
Nrfu; vdJ khkh kfd; Mthu;. vdJ fztu; NrfUf;F
Fbg;gof;fk; cz;L. jpUkzk; MdjpypUe;Nj Fbj;Jtpl;L
vd;dplk; gpur;rid nra;tJ tof;fk; mNj Nghy; ,d;W
12.02.2021-k; Njjp ,uT 07.45 kzpf;F ehd; tPl;by; ,Ue;j
NghJ tPl;bf;F te;j vdJ fztu; Nghijapy;
vd;id ,d;Dk; rhg;ghL nra;atpy;iyah Njtbah kfNs
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vd mrpq;fkhf Ngrpdhu;. ehd; Vd; ,g;gb NgRfpwPu;fs;
vdf; Nfl;ljw;f;F mg;gbj;jhz;b NgRNtd; vd;d
nra;tha; vdf;$wp tPl;by; ,Ue;j kz;nzz;nza;-ia
vLj;J tPl;by; cs;s Jzpkzpfspy; Cw;wp vupf;fr;
nrd;whu; ehd; jLj;J kz;nzz;nza; Nfid thq;fp
mtiu fl;Lg;gLj;Jk; Nehf;fj;Jld; tpisahl;lhf
kz;nzz;nza; Nfid vd; kPJ Cw;wp nfhs;s Nghtjhf
nrhd;Ndd;. mjw;F vd; fztu; Nrfu; eP ,Uj;J vd;db
gz;z Nghw. ,j;NjhL nrj;J njhiyb vdf; $wp
kz;nzz;nza;ia vd; kPJ Cw;wp tpl;L vdJ fztu;
rpful; gpbf;f itj;jpUf;Fk; iyl;liu nfhz;L vd; ,lJ
gf;f ,Lg;G gFjpfspy; gj;j itj;J tpl;lhu; gpd;du;
mf;fk;gf;fj;jpdu; te;J jPia mizj;J 108 Mk;Gyd;];
%yk; GJf;Nfhl;il muR kUj;Jtf;fy;Y}up
kUj;Jtkidapy; cs;Nehahspahf rpfpf;ifapy;
cs;Nsd;. vd;id nfhiy nra;Ak; Nehf;fj;Jld; vd; kPJ
jPia gw;w itj;j vdJ fztu; Nrfu; kPJ eltbf;if
vLf;Fk;gb Nfl;Lf; nfhs;fpNwd;. mwe;jhq;fp Nghyprhuhfpa
jhq;fs; tprhupf;f elg;igr; nrhd;Ndd;> gbf;ff; Nfl;Nld;
rupahf ,Ue;jJ”
16. As per the complaint statement, the accused after
consuming alcohol used to create problems with her. On the date of
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occurrence, namely, on 12.02.2021 at about 07.45 hours, the accused had
come in an inebriated condition and asked her why she had not prepared
cooked food and abused her in a filthy language, “Njtbah kfNs”. When
the complainant had questioned him why he uttered such
unparliamentary words, for that, the accused stated that he would talk
only like that and taking kerosene poured the same on the clothes lying
in the house and had tried to burn them. The deceased/complainant had
snatched the kerosene bottle from the accused and told him playfully that
she was going to pour the kerosene on herself. The accused with
intention to murder her, grabbed the kerosene bottle, poured it on her and
lit the fire ablaze with his cigarette lighter. She was admitted in the
hospital for treatment. The statement of the victim was recorded by P.W.
7. Thiru. Siva Kumar.
17. However, much prior to the the above statement alleged
to be recorded by P.W.7, dying declaration of the deceased was recorded
by the Judicial Magistrate No.I, Pudukottai at about 1.03 hours on the
same day. The Judicial Maistrate stated that after receipt of the intimation
from the Government Hospital Pudukkottai, he had gone to the hospital
at about 12:40 hours, and the patient was identified by the duty Doctor,
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Thiru.Neelakandan. In order to record the dying declaration, he had sent
out the inmates who were staying with the patient and after obtaining
certificate from the doctor about the state of fitness, consciousness of
patient, he recorded the dying declaration.
18. In the dying declaration, the deceased Amrithavalli,
categorically stated that she had quarrelled with her husband, and had
poured kerosene on herself, her husband lit the fire with his lighter and
thereafter, he extinguished the fire with water and brought her to the
hospital, along with her sister and mother-in-law. The initial statement
recorded by the learned Judicial Magistrate is totally different from the
statement alleged to be recorded by the P.W.7.
19. Ex.P5 is the accident register issued by Dr.S.Vijayan on
12.02.2021 at 11.00 hours, in which he had mentioned in the column,
nature of the injury as self-inflicted burns. He was examined as P.W.4
and deposed that he made entries as per statement of the ambulance
technician and relatives.
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20. The statement recorded by the Judicial Magistrate and
the statement recorded by P.W.4 tallied to an extent as the deceased, in
her dying declaration clearly stated that she alone poured kerosene on her
back but her husband lit the fire with cigarette lighter but he himself,
extinguished the fire.
21.P.W.4 Dr.Vijayan, clearly mentioned in the accident
register Ex.P.4 that he had already informed the Police official about the
occurrence at about 11.00 hours. However the statement of the victim
was alleged to be recorded by the police viz., P.W.7 only at about 5.00
hours. P.W.7 deposed in his evidence that he had recorded the statement
at about 3.30 a.m. But in the statement Ex.P.1, he endorsed that the
statement was received at about 5.00 hours. The Investigating Officer
P.W.8 categorically stated that, soon after the receipt of FIR, he had gone
to the Hospital and found that the victim lady was unconscious and since
she was not in a position to give her treatment, he recorded the statement
of her sister P.W.1. Though it was alleged that the FIR was registered at
about 5.00 hours, it did not reach the Judicial Magistrate Court soon
after the registration of FIR, but it reached the Court belatedly. However,
it was proved that it could reach the Court in a short time for which there
was no explanation on the part of prosecution.
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22.P.W.7 clearly admitted that before recording the statement
of victim he has not obtained any certificate from the Doctor to show that
she is conscious oriented, fit state of mind to give statement. The victim
was conscious when she admitted into hospital which was revealed by
the Ex.P.5 accident register, further victim girl in her dying declaration
stated to the Judicial Magistrate that, due to quarrel with her husband,
she poured kerosene on her, her husband lit fire with lighter, the
statement was recorded at about 12.40 hours. The Judicial Magistrate,
who had recorded the dying declaration of the victim has been examined
as P.W.3. He clearly stated he had obtained fitness certificate for her
mental fitness and conscious state and after recording the statement, he
read it over to the victim and explained to the victim lady and only
thereafter, her thumb impression was obtained as she was not in a
position to sign in the statement.
23.Per contra, the statement recorded by P.W.7 is contrary to
the statement recorded by the Judicial Magistrate. There is no necessity
for the victim to change her version before the Police Official by stating
that her husband had snatched the bottle from her and had poured
kerosene on her and set ablaze. If the accused had intention to kill her,
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he need not have extinguished the fire and taken her to the hospital for
treatment. It is proved from the dying declaration of the deceased and
the statement of the P.W.1 that the accused had also accompanied her to
the hospital for treatment. Therefore, the further statement alleged to be
recorded by the Police might be stated by the sister of the victim, viz.,
P.W.1 who had accompanied her when she was brought to the hospital, as
her thumb impression also find a place in the statement alleged to be
recorded from the victim.
24.A person expecting death not tell lies as the belief is that
when facing imminent death, individuals are more likely to be truthful
due to the gravity of situation and the idea that they have nothing left to
gain by deception. The Dying declaration is considered highly credible
evidence due to the assumption that they would not lie in such a
situation.
25.Section 32 (1) of the Indian Evidence Act deals with
dying declaration as follows :
“32. Cases in which statement of relevant fact by
person who is dead or cannot be found, etc., is relevant.
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Statements, written or verbal, or relevant facts,
made by a person who is dead, or who cannot be found,
or who has become incapable of giving evidence, or
whose attendance cannot be procured, without an amount
of delay or expense which under the circumstances of the
case appears to the Court unreasonable, are themselves
relevant facts in the following cases :
(1) When it relates to cause of death. - When
the statement is made by a person as to the cause
of his death, or as to any of the circumstances of
the transaction which resulted in his death, in
cases in which the cause of that person's death
comes into question.
Such statements are relevant whether the
person who made them was or was not, at the time
when they were made, under expectation of death,
and whatever may be the nature of the proceeding
in which the cause of his death comes into
question.”
26.The prosecution failed to prove that when PW7 recorded
the statement of the victim, she was conscious oriented and in a fit state
of mind to give statement. Therefore, we believe the statement of the
victim made before the Judicial Magistrate and consider it to be the true
statement stated by the victim when she was alive. But it is proved that
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though she had poured kerosene on her, the accused alone lit the fire and
set her ablaze.
27.Now we have to decide whether the act committed by the
accused would amount to murder under section 300 or culpable
homicide, not amount to murder.
28.This Court has to analyze whether the offence committed
by the accused falls within the definition of culpable homicide
amounting to murder or culpable homicide not amounting to murder.
The distinguishing factors between culpable homicide and murder are as
follows :
“What distinguish these two offences is the
presence of a special mens-rea which consists of four
mental attitudes in the presence of any of which the
lesser offence becomes greater. These four mental
attitudes are stated in Section 300 IPC as
distinguishing murder from culpable homicide.
Unless the offence can be said to involve at least one
such mental attitude it cannot be murder.”
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29.For better appreciation, it is relevant to extract Section
300 IPC along with its comments from the Indian Penal Code, by
Ratanlal and Dhirajlal (32nd enlarged edition)):-
“300.Murder.—Except in the cases hereinafter
excepted, culpable homicide is murder, if the act by which
the death is caused is done with the intention of causing
death, or—
Secondly.—If it is done with the intention of causing
such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused,
or—
Thirdly.—If it is done with the intention of causing
bodily injury to any person and the bodily injury intended
to be inflicted is sufficient in the ordinary course of nature
to cause death, or—
Fourthly.—If the person committing the act knows
that it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is likely to
cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.
Exception 4.—Culpable homicide is not murder if it
is committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
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offender's having taken undue advantage or acted in a
cruel or unusual manner.
Explanation.—It is immaterial in such cases which
party offers the provocation or commits the first assault.”
30.As per penal provision under S.300 IPC except the
following exceptions culpable homicide is murder.
Exception 1- When culpable homicide is not murder-
Culpable homicide is not murder if the offender, whilst
deprived of the power of self-control by grave and sudden
provocation, causes the death of the person who gave the
provocation or causes the death of any other person by
mistake or accident.
The above exception is subject to the following
provisos:-
First- That the provocation is not sought or
voluntarily provoked by the offender as an excuse for
killing. or doing harm to any person.
Secondly- That the provocation is not given by
anything done in obedience to the law, or by a public
servant in the lawful exercise of the powers of such public
servant.
Thirdly- That the provocation is not given by
anything done in the lawful exercise of the right of private
defense
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Exception 2- Culpable homicide is not murder if the
offender, in the exercise in good faith of the right of private
defense of person or property, exceeds the power given to
him by law and causes the death of the person against
whom he is exercising such right of defense without
premeditation, and without any intention of doing more
harm than is necessary for the purpose of such defense.
Exception 3- Culpable homicide is not murder if the
offender, being a public servant or aiding. a public servant
acting for the advancement of public justice, exceeds the
powers given to him by law, and causes death by doing an
act which he, in good faith, believes to be lawful and
necessary for the due discharge of his duty as such public
servant and without ill-will towards the person whose
death is caused.
Exception 4.- Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel
or unusual manner
Exception 5- Culpable homicide is not murder when
the person whose death is caused, being above the age of
eighteen years, suffers death or takes the risk of death with
his own consent.
.........
The distinction between these two offences is very
ably set forth by MELVILL, J., in Govinda's case and by
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SARKARIA, J., in Punnaya's caselo the relevant
passages from Punnayya's case are reproduced below.
"In the scheme of the Penal Code, 'culpable
homicide' is genus and murder' its specie. All 'murder' is
'culpable homicide' but not vice versa. Speaking
generally 'culpable homicide sans 'special
characteristics of murder' is culpable homicide not
amounting to murder'. For the purpose of fixing
punishment, proportionate to the gravity of this generic
offence, the Code practically recognises three degrees
of culpable homicide. The first is, what may be called,
culpable homicide of the first degree. This is the gravest
form of culpable homicide which is defined in Section
300 as 'murder. The second may be termed as 'culpable
homicide of the second degree'. This is punishable
under the 1st part of Section 304. Then, there is
'culpable homicide of the third degree. This is the lowest
type of culpable homicide and the punishment provided
for it is also the lowest among the punishments provided
for the three grades. Culpable homicide of this degree is
punishable under the Second Part of Section 304."
The academic distinction between 'murder' and
'culpable homicide not amounting to murder' has vexed
the Courts for more than a century. The confusion is
caused, if Courts losing sight of the true scope and
meaning of the terms used by the legislature in these
sections allow themselves to be drawn into minute
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abstractions. The safest way of approach to the
interpretation and application of these provisions seems
to be, keep in focus the key words used in the various
clauses of Sections 299 and 300. The following
comparative table will be helpful in appreciating the
points of distinction between the two offences.
Section 299 Section 300
A person commits culpable Subject to certain exceptions
homicide if the act by which the Culpable homicide is murder if the
death is caused is done..... act by which death is caused is
done...
INTENTION
(a) With the intention of causing (1) With the intention of causing
death; or death; or
(b) With the intention of causing (2) With the intention of causing
such bodily injury as is likely to such bodily injury as the offender
cause death; or known to be likely to cause the death
of the person to whom the harm is
caused; or
(3) With the intention of causing
bodily injury to any person, and the
bodily injury intended to be inflicted
is sufficient in the ordinary course of
nature to cause death; or
KNOWLEDGE
(c) with the knowledge that act is (4) With the knowledge that the Act
likely to cause death. is so imminently dangerous that it
must in all probability cause death,
or such bodily injury as is likely to
cause death, and without any excuse
for incurring the risk of causing
death or such injury as is mentioned
above.
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31. In this case, the prosecution failed to prove that the
accused had any motive to kill the deceased and that he had entered his
residence with the intention to kill her. Except P.W.1, no one stated about
the previous problems the accused and the deceased had with each other.
32. P.W.1 during cross examination, admitted that her sister
and the deceased got married after they fell in love each other. The victim
girl in her dying declaration clearly stated that due to quarrel, she had
poured kerosene on herself and the accused lit the fire, but immediately
he extinguished the fire with water and also took her to the hospital,
which clearly proved that the accused had no intention to kill the victim,
but due to sudden fight and in a fit of anger, he lit fire, but after realizing
the same, he extinguished the fire, took her to hospital for treatment in
order to save her. However, he had knowledge that if he lit fire on her, it
will endanger her life.
33. In this case, it is clearly established that the accused had
no intention to commit murder and also had no preplan to commit the
murder but committed the murder when he was in a fit of anger which
resulted in the the death of his wife. This would come under the
exception, part two of section 304 IPC.
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34. We therefore hold that the offence committed by the
appellant falls under culpable homicide not amounting to murder and is
punishable under the second part of section 304 IPC. The first part of
section 304 would apply when there is such intention, whereas the
second part would apply when there is no such intention, but there is
knowledge.
35. In the case of Anda v. State of Rajasthan, reported in
AIR 1966 SC 148, the two relevant Sections 299 and 300 respectively
are brilliantly analysed and the relevant observations are made at page
151 in para 7. Before we refer to those observations, we would refer to
certain observations made earlier. They are as under:-
“The offence of culpable homicide involves the
doing of an act (which term includes illegal omissions)
(a) with the intention of causing death, or (b) with the
intention of causing such bodily injury as is likely to
cause death or (c) with the knowledge that the act is
likely to cause death. If the death is caused in any of
these three circumstances, the offence of culpable
homicide is said to be committed................ Intent and
knowledge in the ingredients of the section postulate the
existence of a positive mental attitude and this mental
condition is the special mens rea necessary for the
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offence. The guilty intention in the first two conditions
contemplates the intended death of the person harmed or
the intentional causing of an injury likely to cause his
death. The knowledge in the third condition
contemplates knowledge of the death of the person.
Sec. 300 tells us when the offence is murder and
when it is culpable homicide not amounting to murder.
Sec. 300 begins by setting out the circumstances when
culpable homicide turns out into murder which is
punishable under sec. 302 and the exceptions in the
same section tell us when offence is not murder but
culpable homicide not amounting to murder punishable
under sec. 304. Murder is an aggravated form of
culpable homicide. The existence of one of four
conditions turns culpable homicide into murder while
the special exceptions reduce the offence of murder
again to culpable homicide not amounting to murder.”
(Emphasis supplied)
(2) Even when the intention or knowledge of the
accused may fall within Clauses (1) to (4) of Section 300
of the IPC, the act of the accused which would otherwise
be murder, will be taken out of the purview of murder, if
the accused's case attracts any one of the five exceptions
enumerated in that section. In the event of the case
falling within any of those exceptions, the offence would
be culpable homicide not amounting to murder, falling
within Part 1 of Section 304 of the IPC, if the case of the
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accused is such as to fall within Clauses (1) to (3) of
Section 300 of the IPC. It would be offence under Part II
of Section 304 if the case is such as to fall within Clause
(4) of Section 300 of the IPC. Again, the intention or
knowledge of the accused may be such that only 2nd or
3rd part of Section 299 of the IPC, may be attracted but
not any of the clauses of Section 300 of the IPC. In that
situation also, the offence would be culpable homicide
not amounting to murder under Section 304 of the IPC.
It would be an offence under Part I of that section, if the
case fall within 2nd part of Section 299, while it would
be an offence under Part II of Section 304 if the case fall
within 3rd part of Section 299 of the IPC. (3) To put it in
other words, if the act of an accused person falls within
the first two clauses of cases of culpable homicide as
described in Section 299 of the IPC it is punishable
under the first part of Section 304. If, however, it falls
within the third clause, it is punishable under the second
part of Section 304. In effect, therefore, the first part of
this section would apply when there is ‘guilty intention,’
whereas the second part would apply when there is no
such intention, but there is ‘guilty knowledge’. (4) Even
if single injury is inflicted, if that particular injury was
intended, and objectively that injury was sufficient in the
ordinary course of nature to cause death, the
requirements of Clause 3rdly to Section 300 of the IPC,
are fulfilled and the offence would be murder.”
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36.Relying on the ratio laid on the above judgments, we hold
that the offence committed by the accused does not attract Section 300
IPC, but falls under Section 304(ii) IPC.
37.In this regard, we need to point out with sorrow that our
country faces number of death cases caused due to burn injuries. There
are no words to describe the pain and suffering of the victim who
succumbed to death due to burn injury. A burn injury is one of the most
painful injuries a person can experience, viz., Acute stress disorder,
Neuropathic pain, pain that is often described as shooting, burning can
also feel like pins and needles or stabbing. This type of pain is caused by
nerves damaged by the burn injury (research by Shelly A.Wiechman
Ph.D., and Shawn T. Mason Ph.D., in collaboration with the Model
System Knowledge Translation Centre (MSKTC).
38.An Epidemiological Analysis of Deaths Due to Burns in
newly married females was conducted by Assistant Professors namely,
(1) Nisreen Abdul Rahman, (2) Shanmugam K., (3) Sanjay Sukumar, (4)
Kusa Kumar Shaha of various Department viz., (1) Assistant Professor,
Department of Forensic Medicine & Toxicology, KMCT Medical
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College, Kozhikode, Kerala, (2) Assistant Professor, Department of
Forensic Medicine & Toxicology, Government Villupuram Medical
College, Villupuram, Tamilnadu, (3) Additional Professor, Department of
Forensic Medicine & Toxicology, Jawaharlal Institute of Postgraduate
Medical Education and Research (JIPMER), Puducherry, India, (4)
Professor, Department of Forensic Medicine & Toxicology, JIPMER,
Puducherry, India. Through their research they found the following
results :-
“The total number of cases autopsied during the study
period from January 2014 to June 2015 (18 months) were
1254 cases, of which 36.36% (n=456) cases constituted
female deaths. In these 456 cases, 65 cases (5.18% of total
autopsies) were newly married female deaths. But only 48
cases (3.82% of total autopsies) were female deaths due to
burns within seven years of marriage. The age group of the
cases brought to our hospital was ranging from 19 – 38
years. About half of them (50%) were in the age group of 22
-25 years (Fig no.1). About 56.17% (n-26) of them died
within 3 years of marriage and 87.5% died within 5 years of
marriage. Only 3 cases occurred within a year of marriage
(Table no.1).Most of the incidences occurred in the rural
area (87.5%) as compared to urban (12.5%). About 62.5 %
of them were living in joint family and rest were from the
nuclear family (37.5%). About two-third of burns (66.7%)
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happened during night hours (i.e. 6 pm-6 am) and rest
(33.33%) during the daytime.
We noticed that 66.67% of them were coming from
low-income families and 31.25% from middle-income
families. Only 2.1% were high-income families. About 25%
(n-12) of them had upper primary level, 52.68% (n- 25) high
school level, 16.67% (n-8) higher secondary level of
education. Only 6.25% (n-3) were graduates. None of them
were professionals or postgraduates. None of them were
illiterates or lower primary level (Fig.no.2). Out of 48
deceased women, 40 were homemaker wives, 5 were daily
labourer, and 3 employed in private firms.
From our study, we observed that about 56.25% of
victim’s husbands were daily labourers followed by 22.92%
own business runners and 14.58% employed in the
private/government sector. About 6.25% of them were
without any jobs (Fig.no.3). The reason/motive behind death
is illustrated in Table no.2. Out of 48 cases, 28 cases were
suicidal, 18 accidental, and 2 homicidal cases. But at the
end of our study, some of the cases got altered to different
manners on inquiry to the police station by phone calls. Two
suicidal cases got altered to homicides, and two accidental
cases got altered to one homicide and one suicide.”
39.Apart from the above, we learn that India has one of the
highest rates of death caused by burn injury. Annual estimate suggests
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that 23,000 deaths have been caused due to burn injury. Roughly 20% of
the global mortality burden is from burns with majority of victims being
women aged 15-49 years old.
40.The accused who caused death by burn injury to the
young wife deserves no leniency.
41.Taking into consideration the seriousness of the offence
though, though we modify the conviction of the accused from Section
302 IPC to Section 304(ii) IPC and modify the sentence of life
imprisonment, we sentence the accused to undergo imprisonment for ten
(10) years rigorous imprisonment with fine of Rs.1,000/- (Rupees One
Thousand only) in default, to undergo three months simple
imprisonment.
42. In the result,
(i) This Criminal Appeal is partly allowed.
(ii) The conviction under Section 302 IPC passed by the
learned Sessions Judge, Mahila Court, Pudukkottai, dated 24.03.2023, in
S.C.No.95 of 2021, is set aside and the conviction is modified to Section
304(ii) IPC.
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(iv) Accordingly, the sentence of Life Imprisonment passed
by the Court below is set aside and the appellant is sentenced to undergo
Rigorous Imprisonment for ten (10) years and to pay a fine of Rs.1,000/-
(Rupees One Thousand only) and in default to pay the fine amount, to
undergo Simple Imprisonment for three months.
(v) The period of sentence already undergone by the
accused/appellant shall be set off under Section 428 Cr.P.C., as against
the substantive sentence.
(vi) The trial Court is directed to secure the
appellant/accused and commit him to the prison to undergo the remaining
period of sentence.
(G.R.S., J.) & (R.P., J.)
30.01.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
RM
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To
1.The Sessions Judge, Mahila Court, Pudukkottai,
2.The Inspector of Police, Aranthangi Police Station,
Pudukkottai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
4.The Section Officer, ER/VR Section,
Madurai Bench of Madras High Court,
Madurai.
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G.R.SWAMINATHAN, J.
AND
R.POORNIMA, J.
RM
Judgment in
30.01.2025
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