CRL A/91/1997 of Vs on 11 December 2002

:JUDGMENT

V.S. SIRPURKAR, J.

The appellants herein challenge their conviction recorded bythe Additional Sessions Judge. The first appellant has been held guilty ofthe offence under Sec.302 I.P.C. and sentenced to undergo life imprisonmentwhile the second accused, who is the mother of the first accused, has beenheld guilty of the offence under Sec.498-A I.P.C. and has been sentenced toundergo one year rigourous imprisonment and also the fine of Rs.1000/-.

2. The appeal is nothing but a sordid story of what the newlymarried girls have to undergo in the name of preserving the marriage.Deceased Vanitha was married to the first appellant Rajendran. Secondappellant Nagammal is her mother-in-law. After the marriage, the secondappellant kept on pestering Vanitha for bringing three sovereigns of gold fromher parents. Vanitha’s family could give only one and a half sovereigns of gold at the time of marriage though they had agreed to give four and a halfsovereigns of gold at that time.

3. The incident took place on 26-10-1994 when Vanitha was residing in the house of the appellants. Vanitha could not go for the work asshe was unwell. Perhaps, because her husband was away, there was againbickering between the second appellant and Vanitha on account of the dowryand, therefore, Vanitha complained to her husband after he came back fromwork. Flared up by this, the first appellant started beating Vanitha as shewas given to complaining against her motherin-law. Vanitha, therefore, tookher child and started going to her parents’ house, which is also situatednearby. However, the child was whisked from her and she was pushed by thefirst appellant inside the house. Kerosene was poured by him on her andparticularly on the head and body and she was set to fire with the aid of aburning lamp. Vanitha was ablaze and started crying for help. She embracedthe first appellant only causing him some burn injuries. Prosecution story isthat the second accused was through out the incident and she also sped awayafter closing the doors of the house in order to prevent Vanitha from comingout of the house.

4. Hearing the scream, Mangalam (P.W.1), mother of Vanitha and Madhavan (P.W.2) brother of Vanitha and the other neighbours gatheredthere. They found that both the accused had run away from their house.Vanitha also came out of the house ablaze. She was immediately rushed to theGovernment Hospital, Valparai in a van which was brought by Vijayasundaram(P.W.3), younger brother of Vanitha. She was admitted as an indoor patient inthe hospital and Dr. Thambiran (P.W.8) started giving her the treatment. Healso gave the treatment to the first accused who had gone to the hospital atabout 11.00 p.m. on the same day. The first accused had reported to thedoctor that when he attempted to save the life of his wife who had set herselfto fire, he himself had sustained burn injuries. He did not, however, agreeto admit himself in the hospital as an indoor patient.

5. Seeing Vanitha having been burnt, Dr. Thambiran (P.W.8)

5. Seeing Vanitha having been burnt, Dr. Thambiran (P.W.8)

gave the intimation both to the police as well as to the Judicial Magistrate,Valparai. Vanitha was found to have suffered 80% of burn injuries. Whilebeing admitted in the hospital, Vanitha had told the doctor P.W.8 that she wasset ablaze by her husband after dousing her with kerosene. This was indeedrecorded in the accident register (Ex.P-5). The Sub Inspector of Police,Valparai Police Station, who rushed to the hospital, recorded the statement ofVanitha at about 12.15 a.m., which was marked as Ex.P-20. The statement wassent through the constable to Mudis Police Station. Kanagasabapathy (P.W.16),Sub Inspector of Police, Mudis Police Station, received the statement at about1.00 a.m. on 27-10-1994 and registered the crime vide Cr.No.137 of 19 94 foroffences under Sec.498-A I.P.C. and Sec.307 I.P.C. The express FirstInformation Report was prepared vide Ex.P-16 and was sent to the concernedJudicial Magistrate. Inspector of Police, Valparai Police Station rushed tothe place of occurrence at 8.00 a.m. and made arrangements to havephotographs of the place of occurrence. He also prepared the observationmahazar in the presence of the panch witnesses, viz. Ex.P-6 and also preparedthe rough sketch. He seized the material objects like woollen blankets,

6. The second accused was arrested only on 28-10-1994 at about 7.00 a.m. at Sholaiyar Dam Bus Stand. She was also sent for judicialcustody. The first accused was already arrested. The Investigating Officerthen started the investigation but came to know that Vanitha had died and,therefore, the offence was altered to Sec.302 I.P.C. from Sec.307. Theinquest was held. Post-mortem was also conducted. The doctor, who conductedthe post-mortem, also opined that Vanitha had burn injuries all over her body.

7. After the investigation was over, the charge sheet was filed and the accused were put to trial after the matter was committed to thesessions court. Before the Sessions Court both the accused denied havingtreated Vanitha with cruelty and also pointed out that they had no handwhatsoever in the burning of Vanitha. In short, the hint of the defence isthat Vanitha had committed suicide or she was accidentally burnt.

8. Before the trial court, the prosecution relied on the evidence of some witnesses, who were relation witnesses and also theneighbours. There was no eye-witness but the circumstantial evidence was inthe shape of dying declaration of Vanitha which was proved by the JudicialMagistrate who recorded it. The court also found, relying on the basis of thechemical analyst’s report, that there was no question of accidental deathbecause Vanitha’s clothes had the kerosene residue on the same.

9. P.Ws 1 and 2 being the mother and brother of the deceased respectively claimed that they had been unable to give Vanitha threesovereigns of gold as promised and there used to be quarrel between Vanithaand the second accused on that account and that on the fateful day both ofthem hearing the din at about 8.00 p.m. rushed to the house of the deceasedand found that she was ablaze and that both the accused ran away from thehouse. Very strangely enough they again filed a memo before the court thatthey wanted to be examined again as they then wanted to reveal the truth. Itwas obvious that later on they were won over.

10. Relying on the evidence of the witnesses, evidence of the Judicial Magistrate, who recorded the dying declaration, and the evidence ofthe doctor and accepting the dying declaration (Ex.P-14), the trial court hasconvicted the appellants for the offence as stated above. We have to see thecorrectness of the conviction in this appeal.

11. In support of the prosecution, the relation witnesses

were examined, they being Mangalam (P.W.1), mother of the deceased; Madhavan(P.W.2), elder brother of the deceased and Vijayasundaram (P.W.3), youngerbrother of the deceased. Out of these witnesses, the evidence of P.W.3 is ofno use because he does not speak either of the strained relationship betweenthe mother-in-law and the daughter-in-law on account of the dowry demand nordoes he refer to the actual incident because obviously he was not present inthe scene when the incident took place.

12. P.W.1 Mangalam, who is the mother of the deceased, suggests that hearing the scream, she immediately rushed to the Vanitha’shouse and saw her daughter ablaze. She also deposed that accused 1 and 2 ranfrom the house. Even before that she has referred to the demand of threesovereigns of gold and her daughter, viz. deceased Vanitha pestering herabout the same. In the similar vein is the evidence of Madhavan (P.W.2). Healso refers to the fact that he was attracted because of the shrieks ofVanitha and his mother and, therefore, he came on the spot and saw the accusedpersons running away. This evidence was tried to be relied upon by theprosecution to suggest that though it was the basic duty of the accusedpersons to do something to save the burning Vanitha, they took to their heelsand suggested their immediate conduct which was of highly suspicious nature.According to the prosecution, the two accused persons had nothing to be afraidof it was a case of suicide or accident. There has been an effort on the partof the prosecution firstly to suggest that the door was tried to be locked bythe second accused. However, we do not think that can be accepted and thatappears to be a mere exaggeration on the part of the witness because the doorwas not found chained or locked from outside, to the police officers who wentthere. It is nobody’s case that some one opened the door and rescued Vanitha.These two witnesses as well as the other witnesses, viz. Durairaj (P.W.4) andBalan (P.W.5) deposed that Vanitha was seen outside the house who was helpedby these witnesses by putting a blanket on her body. There can be no disputethat the first accused and his mother were in the house because that was themost natural place for them to be. It can also not be disputed that whenVanitha was ablaze, these two persons went away. There is very littlecross-examination on the question of the accused running away from the spot.Though there are some discrepancies, the evidence of these persons to theeffect that there was nobody in the house when they went and that the accusedpersons had run away can be safely accepted. It has to be remembered in thisbehalf that it was only about 8.00 p.m. at that time and Vanitha, her childand the two accused persons were the only residents of that house. Theevidence of the neighbours also can be seen in this behalf.

13. This, however, takes us to the case of the prosecution

13. This, however, takes us to the case of the prosecution that Vanitha was being often tortured or illtreated on account of the dowrydemand. It cannot be disputed that the two witnesses i.e. P.W.1 and P.W.2did speak about the fact that there was an agreement that they would give foursovereigns of gold and they h ad not been able to keep their promise. It alsohas come in the evidence that there used to be frequent quarrel between themother-in-law and the deceased Vanitha on account of this demand of threesovereigns of gold. The real question is posed because of the subsequentsomersault taken by the witnesses and more particularly P.Ws 1 and 3 who,after their examination was over, came before the court with the affidavitsand sought to tell the truth. We do not know as to why they were allowed tobe examined later on because that was clearly not permissible. Once theexamination of the witness was over and once he had also put his signature intoken of the evidence being correct, there was no question of the witnessbeing put again for the purpose of telling the truth. It was not as if thecourt had felt the necessity of recalling these witnesses nor there was anapplication by the prosecution for their recall. There can be no doubt thatwitnesses can be recalled for good reasons even by the prosecution for thefurther cross-examination. But, here was a case where the witnesses came, insisted before the court that what they have stated earlier was not the truthand that there was no dowry demand nor were there any misunderstanding orquarrel between the second accused and the deceased. We are unable to acceptall these. It has definitely come in the evidence that the dowry was demandedonly by the second accused and the quarrel also used to be between the secondaccused and the deceased Vanitha. Nobody has said anything about the positiveact on the part of the first accused in respect of demand of dowry. Learnedcounsel for the defence tried to suggest that this demand of dowry was a storycooked by the witnesses and more particularly the mother and brother of thedeceased but that is not where it stops. In fact, Balan (P.W.5) had alsoreferred to the bickering in the house of the deceased on account of the dowrydemand. He has also particularly referred to the bickering between the secondaccused and the deceased only. It is a clear case where a married, pregnantlady was being pestered for dowry and subjected to death by burning. In ouropinion, therefore, the trial court was right in holding that the secondaccused had inflicted cruel treatment. In this connection, we shall refer tothe dying declaration in the succeeding paragraphs.

14. In so far as the offence under Sec.302 I.P.C. is concerned, we will have to go by the dying declaration of Vanitha where it isstated in the clearest possible terms by Vanitha that it was her husband whodoused her with kerosene and set her ablaze with the aid of a burning lamp.The dying declaration was subjected to a very severe criticism by the learneddefence counsel. The learned defence counsel points out that there were majordefects not only the dying declaration (Ex.P-14) recorded by the JudicialMagistrate but also in the evidence of the Judicial Magistrate Arumugham(P.W.14) and Dr. Thambiran ( P.W.8). According to the learned counsel,reading the evidence as it is, the dying declaration was bound to be rejectedor at any rate, the conviction based upon the dying declaration could not besustained.

15. There can be no dispute that the dying declaration was in

Facts

15. There can be no dispute that the dying declaration was in fact recorded by the Judicial Magistrate First Class. He had received therequisition on the same night from Valparai hospital and, therefore, he wentto record the dying declaration. In his evidence he says that the recordingof the dying declaration started at 1.00 a.m. and ended on 1.15 a.m. on27-10-1994. In his cross-examination, he was made to say that he did notrecord in particular that Vanitha was in a fit state of mind and was in acondition to give the statement. The reason he ascribe to this is that hehimself was satisfied about the fitness of Vanitha to give the statement thattherefore he recorded the statement. When we go to the first part of thedying declaration, it is clear that the Judicial Magistrate had asked her afew questions about her name, her husband’s name, address, etc., which shecorrectly answered. He then had put a very specific question to the deceasedas to whether she was conscious and whether she was in a fit state of mind.Those questions are to be found part of the dying declaration. It cannot,therefore, be said that the Magistrate did not try to form his own opinion anddid not try to get ascertained about the fitness of the deceased to give thestatement. As if all this is not sufficient, a court-question came to beasked to this witness whether the doctor was present while he was recordingthe dying declaration. The witness has given a clear answer that the medical

officer was present and he had also endorsed that she was in the sound stateof mind and had affixed his signature. Perhaps, this was felt necessarybecause the Public Prosecutor seems not to have put a specific question to thedoctor in his examination-in-chief and had merely got the dying declarationproved by reference to the fact that it was he who had got recorded the dyingdeclaration. The alacrity shown by the court is exemplary and it is obviousthat the doctor was present when the dying declaration was recorded and notonly was he present but he also endorsed that Vanitha was in the sound stateof mind at the time of recording of the dying declaration. We have seen thedocument ourselves to see that there indeed is the signature of the doctor onthat statement and it was specified therein that she was in a fit state ofmind. The witness was again and again asked about the presence of the doctorin the cross-examination but he seems to have insisted upon that the doctorwas very much present and in fact he was already there when he reached thehospital to record the dying declaration. A suggestion to the effect that themedical officer was not present when he was recording the dying declaration isspecifically denied by the witness. Our attention was drawn at the evidenceof Dr. Thambiran (P.W.8) who spoke about the entry of Vanitha to thehospital. To him also, on his enquiries, Vanitha seems to have stated thatshe was burnt by her husband by pouring kerosene on her. To him she alsostated that the incident took place inside the house. He also insisted thatshe had given proper answers to his questions with consciousness. Her pulsewas nearly normal and her blood pressure was also 110/8 0 (which is a nearnormal rate). She also found to be pregnant for four months. The doctordeposed that she had suffered 80% of burn injuries. This witness was againcalled and his examination-in-chief was continued. He also pointed out thatit was he who informed to the police and Judicial Magistrate and theintimation to the police. He also deposed about Rajendran, first accused,having come to him on the same day at about 11.00 p.m. and having made astatement that his wife attempted to commit suicide by setting herself ablazeand when he tried to save her, he had suffered burn injuries which he hasalready deposed about. Very strangely, however, the doctor does not deposeabout his being present and having endorsed the dying declaration recorded bythe Judicial Magistrate in his presence. It is really pathetic that thePublic Prosecutor should not have bothered to put the dying declaration tothis witness which bore his signature and which was in possession all throughof the prosecution. It is really again completely inexplicable as to why thiswitness was not asked a single question about the Judicial Magistrate havingrecorded the dying declaration. It will be seen that the evidence of JudicialMagistrate was recorded on 17-12-1996 while this witness was examined earlier,i.e. on 5-12-1996. The Public Prosecutor perhaps thought that he could provethe dying declaration only through the evidence of the Judicial Magistrateand, therefore, the dying declaration was not required to be put to thisdoctor. Such incompetent handling of the sessions trial really causesconsternation and we express our deep anguish at this. It has come in thecross-examinati on of the doctor that at about 12.00 midnight the police camefor the first time and that they came to the hospital after the JudicialMagistrate recorded the dying declaration of Vanitha. It was only in thecross-examination that the doctor deposed that he was present in the hospitalwhen Vanitha was brought to the hospital. The doctor, however, very clearlystated that Vanitha spoke in a crystal clear manner without giving room for

any doubt. The evidence of this doctor was very heavily criticised that heshould not have spoken one word about the fact of his being present and havingcertified about the fitness of Vanitha at the time of recording her dyingdeclaration. There can be no doubt that the defect is serious. However, itwill have to be seen whether it has really affected the prosecution case.

16. For this purpose, when we go to the dying declaration, we see that Vanitha, who was pregnant, has clearly referred to the personspresent in the house. She also made a reference to the bickering over dowrybetween her and the second accused. She has also held her mother-in-law,second accused, responsible for the incident and she has also gave a graphicdescription of the manner in which she was burnt by her husband. Reading thedying declaration as it is, there can be no dispute that it was the firstaccused and first accused alone, who doused Vanitha with kerosene and set herablaze. In our opinion, the Judicial Magistrate had taken full care not onlyto get himself assured about the fitness of Vanitha but he also got theendorsement of the doctor at the end of the dying declaration. We have seenthat endorsement ourselves and we are convinced that the endorsement was madeat the time it is purported to have been done. True it is that at thebeginning of the dying declaration, there is no such endorsement by thedoctor. However, it is clear that the Judicial Magistrate has asked Vanithafew questions to know about the fitness of her mind to give dying declaration,which has been put at the end of the dying declaration. In our opinion, therefore, the dying declaration can be given credence though the doctor hasnot deposed before the court about the endorsement made and about the fitnessof Vanitha to give dying declaration.

17. Learned counsel very severely assailed the evidence and questioned that the recording of the dying declaration and the mental andphysical condition of Vanitha to give dying declaration were highly suspiciousmatters particularly because the doctor had not given any data like her pulserate, blood pressure readings, etc. and the prosecution had also not producedany material regarding the treatment given to her. There can be no doubt thatthere is a serious flaw in this case as the doctor has not been asked at allby the Public Prosecutor about the condition of Vanitha nor has he been askedabout his own endorsement made on the dying declaration. However, it cannotbe disputed that the doctor was all through present when the dying declarationwas recorded which was the claim of the Judicial Magistrate, who had nothingto do and who is most disinterested witness. In this behalf, it has to beseen that the evidence of the doctor supports in a way the case that it wasthe first accused who had set ablaze his wife because the doctor has veryclearly stated about the same in his evidence and there is absolutely nochallenge to this version. On the other hand, the doctor was clear enough tosay that Vanitha was speaking in a crystal clear manner and that she hadblamed her husband for burning her. It will be seen that even if the dyingdeclaration is to be tested, Vanitha has not made any conflicting version.Before the doctor also, she blamed her husband by naming him as theperpetrator of the crime and though in the dying declaration given before theJudicial Magistrate she said that her mother-in-law was responsible for this,

she has very specifically stated that it was her husband ( first accused) whohad set her ablaze. This suggests not only the clear mind of Vanitha at thetime when she made the statements but also the intrinsic truthfulness of thedying declaration. It is obvious that the bickering of Vanitha was with hermother-in-law, the second accused, who was pestering her for the dowry and nother husband. It has become clear on account of the fact that Vanitha has veryspecifically suggested that for the debacle her mother-in-law was responsible.However, that does not absolve the first accused, who set her ablaze. Theclarity of mind of Vanitha is also disclosed from the fact that even in thatstate she suggested that her child should be sent to her parents. All thisgives the ring of truthfulness to the dying declaration and for the reasonswhich we have given earlier, we can also vouchsafe about the ability ofVanitha to make a dying declaration.

18. Learned counsel also tried to suggest that the deceased was in company of her parents and they must have tutored Vanitha to give afalse statement. We are unable to accept this because, there is no suchsuggestion that Vanitha’s parents were with her at the time when the dyingdeclaration was recorded. In fact, not a single question was directed to thedoctor or the Judicial Magistrate about the presence of the witnesses likeP.Ws 1, 2 and 3 at the time when the dying declaration was recorded. Seeingthe dying declaration, we are quite convinced that it was truthful, voluntaryand was made in a state when the maker thereof was perfectly conscious. Itis, therefore, that even when the doctor’s evidence in so many specific wordsabout the fitness of Vanitha is not before us, we would venture to accept theevidence of the doctor. The law of dying declaration has now been settled inthe recent decision of the Supreme Court in LAXMAN v. STATE OF MAHARASHTRA(2002 (6) SC 313) . The constitution-Bench decision goes on to say that thedecision in Paparambaka Rosamma & Others v. State of Andhra Pradesh (JT 1999(6) SC 585) was not a correct decision while the decision rendered in KoliChunilal Savji v. State of Gujarat (JT 1999 (7) SC 568) was correctlydecided. The Supreme Court holds:

“What is essentially required is that the person who records a dyingdeclaration must be satisfied that the deceased was in a fit state of mind.Where it is proved by the testimony of the magistrate that the declarant wasfit to make the statement evenwithout examination by the doctor thedeclaration can be acted upon provided the court ultimately holds the same tobe voluntary and truthful. A certification by the doctor is essentially arule of caution and therefore the voluntary and truthful nature of thedeclaration can be established otherwise.”

We are of the clear opinion, for the reasons given above, that this was adying declaration which inspired full confidence of the Court in itstruthfulness and credence. We have been alive to the fact that the doctorthough was available has not specifically asked about the condition of thevictim to make the dying declaration but, even otherwise, the evidence of thedoctor and the evidence of the Judicial Magistrate is enough to suggest thatthe deceased was in a fit mental condition to make the dying declaration.

19. Learned counsel for the defence almost by way of a desperate attempt tried to suggest that the first accused could not be

convicted for an offence under Sec.302 I.P.C. and the offence would be in thenature of Sec.304 Part II. Learned counsel for this purpose relied on areported decision in KALU RAM v. STATE OF RAJASTHAN (2000 SCC ( Crl.) 86).When we see the facts of the reported decision, the difference in the scenariois crystal clear. In the reported decision, the appellant was drunk and hedemanded his wife her ornaments possibly to get more drunk. On her refusal,he burnt her alive by pouring kerosene over her and setting her ablaze. TheSupreme Court accepted the dying declaration. Curious enough, in the reporteddecision, the deceased herself told the witnesses that she had herselfcommitted suicide. However, that portion of the evidence of the witness wasrejected more particularly on the backdrop of the dying declaration. TheSupreme Court has mentioned the following reasons to bring down the offencefrom Sec.302 I.P.C. to Sec.304 Part II:

“But then, what is the nature of the offence proved against him? It is anadmitted case that the appellant was in a highly inebriated stage when heapproached the deceased when the demand for sparing her ornaments was made byhim. When she refused to oblige he poured kerosene on her and wanted her tolight the matchstick. When she failed to do so he collected the matchbox andignited one matchstick but when the flames were up he suddenly and franticallypoured water to save her from the tongues of flames. This conduct cannot beseen divorced from the totality of the circumstances. Very probably he wouldnot have anticipated that the act done by him would have escalated to such aproportion that she might die. If he had ever intended her to die he wouldnot have alerted his senses to bring water in an effort to rescue her. We areinclined to think that all that the accused thought of was to inflict burns toher and to frighten her but unfortunately the situation slipped out of hiscontrol and it went to the fatal extent. He would not have intended toinflict the injuries which she sustained on account of his act. Therefore, weare persuaded to bring down the offence from first degree murder to culpablehomicide not amounting to murder.

We are afraid, we cannot see any similarity in the present prosecution story.Here was a case where the accused instead of trying to rescue his wifeactually ran away from the house. His escapade had been deposed to by thewitnesses who are both relative and non-relative witnesses. True it is thatthe accused has stated that he attempted to save his wife but, there isnothing to suggest that he tried to save her and it was during those effortsthat the accused got burns. Merely because the accused had burn injuriescannot support his version that he tried to rescue his wife from the tonguesof fire. It could be that after setting Vanitha ablaze, the deceased mighthave clasped him as she could not have otherwise clasped her mother-in-law orthe child. There is nothing to suggest even in the dying declration that theaccused did anything to save Vanitha from the tongues of fire. On the otherhand, the accused had actually run away from the scene. We have disbelievedthe prosecution version that the accused tried to lock her inside but thatdoes not help the accused because in the reported decision, the Supreme Courthas clearly commented upon the intention of the accused merely to frighten herby inflicting burns. That does not seem to be the case here. We are,therefore, unable to accept the plea that the offence can be brought down toSec.304 Part II.

20. It is thus a pathetic story of the accused 1 and 2

tormenting the deceased Vanitha on account of the dowry, pestering her allthrough and ultimately Vanitha being subjected to the torture of being burntalive. Vanitha was a young married girl, having a child. She was pregnantfor four months. However, the accused persons did not even think about herpeculiar physical condition. In our opinion, the trial court has correctlyconvicted the first accused of the offence under Sec.302 and the secondaccused of the offence under Sec.498-A I. P.C.

21. We do not see any merit in the appeal and would choose todismiss the appeal. The appeal is accordingly dismissed.

Index:Yes

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Jai

To:

1. The Sessions Judge, Comibatore

2. The District Collector, Coimbatore

3. The Superintendent of Central Prison, Coimbatore

4. The Public Prosecutor, High Court, Madras

5. Inspector General of Police, Chennai-4