EZHUMALAI Vs. STATE

JUDGEMENT

(1.) THE sole accused in a case of murder, on being found guilty as per the charges levelled against and awarded life imprisonment for the offence under Section 302 of the Indian Penal Code and rigorous imprisonment for three years along with a fine of Rs. 2,000/- carrying a default sentence of rigorous imprisonment for one year for the offence under section 436 of the Indian Penal Code, by the Court of Session, Cuddalore, has brought forth this appeal, challenging the judgment.

(2.) THE short facts necessary for the disposal of the case could be summarized as follows : (a) THE accused/appellant belongs to Uraiyur. He married one Jayalakshmi and was living with her. While so, he developed illicit intimacy with the deceased Lakshmi and was living with her in a rented house owned by one Kasinathan. Few months prior to the date of occurrence the accused got the jewels of the sister of the deceased, but he did not return due to which there were quarrels between the accused and the deceased quite often. (b) On 15. 09. 1997 at 08. 00 pm the deceased quarrelled with the accused regarding the redemption of jewels, since her sister was insisting to get them back. In that quarrel he poured kerosene on her and set fire. When he found the burns on the deceased he made an attempt to save her and in that course he also sustained injuries. (c) On getting the intimation about the incident, P. W. 8 fireman, Panrutti Fire Station rushed to the scene of occurrence, extinguished the fire and took both the accused and the injured (since deceased) to the Government Hospital , Panrutti. P. W. 3, who was the doctor on duty at that time at 09. 50 pm admitted both of them. When the doctor questioned the injured, she gave a statement and it was also recorded by P. W. 3 in the accident register. THE copy of the accident register stands marked as ex. P. 9. Following the same the doctor advised that she could be taken to the Government Hospital , Cuddalore. At about 09. 55 pm the appellant/accused was admitted and his statement was also recorded. THE copy of the accident register speaking about the injuries sustained by him is ex. P. 10. (d) P. W. 5, the brother of the deceased and his friend p. W. 7, on coming to know about the occurrence, rushed to Panrutti Hospital , where they were advised to take the deceased to the Government Hospital , Cuddalore. THErefore, he engaged a taxi, which was driven by P. W. 10 and on the way she informed him that it was the accused/appellant who poured kerosene and set fire on her and when they went to the Government Hospital, Cuddalore, the doctor at cuddalore admitted her in the hospital and immediately an information was passed on to P. W. 2, the Judicial Magistrate to record the dying declaration of the deceased. P. W. 2, the Judicial Magistrate No. II, Cuddalore, proceeded to the hospital and on being certified by the doctor that she was mentally and physically fit to give a dying declaration, recorded the dying declaration of lakshmi, which stands marked as Ex. P. 5. (e) In the meantime, P. W. 1, the Village Administrative officer, on being informed about the incident, went to the Pudupet Police station at 09. 30 pm and gave a complaint to the Sub Inspector of Police, p. W. 11, which stands marked as Ex. P. 1. P. W. 11 on the strength of Ex. P. 1 registered a case in crime No. 589/1997. THE printed first information report stands marked as Ex. P. 14, a copy of which was sent to Court. P. W. 11 proceeded immediately to the scene of occurrence, made an inspection in the presence of witnesses and prepared Ex. P. 2 observation mahazar and sketch, Ex. P. 3. He also recovered from the place of occurrence, Mos. 1 to 6 under a mahazar, Ex. P. 4. At that time P. W. 5 gave a complaint, which is marked as Ex. P. 13. Photographs of the scene of occurrence were taken. THE photographs and the negatives were marked as M. Os. 7 and 8 series. P. W. 11, on receipt of the death intimation, ex. P. 15 from the Government Hospital , Cuddalore, altered the crime into one under Section 302 of the Indian Penal ode. Ex. P. 16 is the copy of the first information report in the altered crime, which was also sent to Court. (f) P. W. 12, the Inspector of Police, attached to the panrutti Police Station took up further investigation in the crime and went to the Government Hospital, Cuddalore and conducted inquest over the dead body in the presence of witnesses and panchayatdhars and prepared Ex. P. 17, the inquest report. Following the same, on a requisition from the Investigating Officer, the doctor attached to the Government Hospital, Cuddalore conducted autopsy on the dead body of the deceased opining that the deceased died of shock due to extensive burns of 100 per cent. P. W. 12, the Investigating Officer again went to the scene of occurrence and examined some more witnesses. He arrested the accused/appellant and sent him to judicial remand. THE material objects recovered from the dead body of the deceased and the recovered from the place of occurrence were subjected to chemical analysis pursuant to a requisition from the Judicial Magistrate and on completion of the investigation the investigating Officer filed the final report. THE Judicial Magistrate concerned committed the case to the Court of Session. Necessary charges were framed by the Court of Session.

(3.) ADDED further the learned counsel for the appellant that immediately when the injured was admitted with burn injuries, she gave a statement to P. W. 3, which is the earliest statement stating that it was her own act and that her statement was recorded in the accident register, Ex. P. 9. P. W. 3 has been examined by the prosecution, who has fairly stated about the statement of the injured, which was recorded by her in the accident register, Ex. P. 9. This evidence has not been given up by the prosecution. The prosecution has no where brought forth from the evidence that P. W. 3 has made a false statement. Under such circumstances, the evidence of P. W. 3 would be binding on the prosecution. It is also in evidence that the injured was taken from Panrutti to cuddalore Government Hospital by P. W. 5 and P. W. 7 in a taxi driven by P. W. 10. In the instant case it would be quite clear that P. W. 5 was on inimical terms with the appellant/accused. Under such circumstances, there was all possibility of p. W. 5 tutoring the injured to give a statement to the Judicial Magistrate in such a way that it was the act of the accused. In the instant case no record from the Government Hospital of Cuddalore was summoned in order to show that what was the statement given by the injured to the doctor P. W. 6, who sent requisition to the Judicial Magistrate to record the dying declaration of the deceased, but the prosecution has relied on the dying declaration recorded by the judicial Magistrate, P. W. 2 at 12. 40 pm, in which the injured had implicated the accused/appellant as the person responsible for the crime. No evidentiary value could be attached to the dying declaration since there was a long interval between the statement given by the injured to P. W. 3, the doctor and to P. W. 2, the Judicial Magistrate and during the interval P. W. 5, who was on inimical terms with the accused/appellant had taken her to the Government Hospital, cuddalore from Panrutti, in a taxi during which time there was every possibility of he tutoring the injured.