VIJAYALAKSHMI Vs. STATE

JUDGEMENT

(1.) THE appellant was the sole accused in S.C.No.16/2004 on the file of the Principal Sessions Judge, Chennai. The appellant was prosecuted for an offence under Section 302 IPC and was found guilty of the offence punishable under Section 304 (Part II) IPC and was convicted and sentenced to undergo five yours rigorous imprisonment and to pay a fine of Rs.2,000/ -, in default, to undergo rigorous imprisonment for a further period of three months and this Appeal is filed against the said conviction and sentence.

(2.) MR .K.Rajasekaran, learned counsel for the appellant submitted that though the prosecution examined 13 witnesses, PW.4 is the alleged eye -witness and PW.5, the father of the deceased only heard from the deceased and except the evidence of PW.4, there is no other witness to prove the prosecution case. He also submitted that the evidence of PW.4 cannot be relied on as her presence was not spoken to by the deceased when he alleged to have given the statement Ex.P.9 and even according to the evidence of PW.4, she could not be the eye -witness. He, therefore, submitted if the evidence of PW.4 is eschewed, there is no witness to prove the guilt of the appellant. He further submitted htat no attempt was made by the prosecution to record dying declaration even though the deceassed was alive for two days and she was able to give information about the incident to the Doctors and that would also create some doubt about the prosecution case. He also submitted that admittedly, the deceased was tall and was having a good physique and the accused a short woman. Therefore, it would not have been possible for the appellant to throw acide on him and having regard to the injuries found on the deceased, the accused /appellant could not have poured acid on the deceased inasmuch as burn injuries were found all over the body of the deceased. He therefore submitted that if really the appellant had poured acid by facing the deceased, there would not have been any possibility of burn injuries on the back side of the deceased and admittedly, the deceased sustained injuries all over the body and it would only prove that the incident could not have been taken place in the manner as alleged by the prosecution. He also relied upon the evidence of PW.5 and submitted that PW.5 was the father of the deceased and he enquired the deceased about the manner in which the occurrence had taken place and to him, the deceased gave a different version and also did not mention the presence of PW.4 to his father and that would also make the presence of PW.4 doubtful. As such, he submitted that without considering all these aspects, the learned Sessions Judge convicted the appellant for offence under Section 304 (Part II) IPC and therefore, the appeal has to be allowed.

(3.) THE learned additional Public Prosecutor submitted that PW.1 to PW.3 are the Doctors and PW.1 examined the deceased immediately after the occurrence and to whom the deceased informed that one woman poured acid and PW.3 the Doctor who examined the deceased on the next day deposed that the deceased informed him that Vijayalakshmi poured acid on him and there was no necessity for PW.1 and PW.3 to implicate the appellant and therefore, even assuming that PW.4's evidence cannot be believed, having regard to the evidence of PW.1, PW.3 and Ex.P.9 statement given by the deceased, the prosecution proved the case beyond reasonable doubt and that was properly appreciated by the learned Principal Sessions Judge. He also submitted that when a person poured acid on another person, it could not be stated in precise in which part the acid would have fallen and having regard to the evidence of PW.1, PW.3, PW.4 and the statement of the deceased Ex.P.9, the prosecution has proved that the appellant poured acid on the deceased as a result of that the deceased died and the learned Sessions Judge rightly convicted the appellant for an offence under Section 304 (Part II) IPC as there was no premeditation. He therefore submitted that there is no merit in the appeal and the appeal has to be dismissed.