NATARAJ Vs. STATE

JUDGEMENT

(1.) THE appellant in this case stands convicted in S.C.No.326 of 2003 on the file of Additional Court of Sessions and Special Court for Essential Commodities Act, Coimbatore under Sections 302 and 352 I.P.C. for which he stands sentenced to undergo imprisonment for life together with a fine of Rs.20,000/- carrying a default sentence for the former offence and six months rigorous imprisonment together with a fine of Rs.500/- carrying a default sentence for the latter offence. Hence he is before this court in this appeal. Heard Mr.K.Kalyanasundaram, learned counsel appearing for the appellant and Mr.N.R.Elango, learned Additional Public Prosecutor for the State.

(2.) ACCORDING to the prosecution at 10.00 a.m. on 27.8.2002 the accused poured diesel on Nachammal aged about 70 years and set fire to her resulting in her death in the course of the day. In the course of the same transaction, he pushed violently P.W.1 - Nachammal's son, who came in between and thereby punishable for the offences referred to earlier. In all, the prosecution examined P.Ws.1 to 14 besides marking Exs.P.1 to P.25 and M.Os.1 to 9. The defence did not let in any oral or documentary evidence. P.W.1 is the husband of P.W.2. P.W.1 is the son of the deceased and accused Nataraj is P.W.1's cousin. P.W.1's family, Nataraj and another cousin Kanagaraj have lands irrigating the same from a common water source. The occurrence was on 27.8.2002 at about 10.00 a.m. That was the turn day for P.W.1's family to irrigate. P.Ws.1,2 and the deceased went to the well sufficiently equipped with diesel to make the oil engine fitted to the well run. The accused came there and objected to P.W.1's family irrigating the lands. In that context the occurrence is shown to have taken place. P.W.1 would state that after leaving his mother near the well and keeping the can containing diesel in that place, he was attending to the agricultural work. The accused emerged at the scene and questioned the deceased about the irrigation of the lands by the prosecution party, which was followed by exchange of words. P.W.1 was carrying on agricultural work away from the well. He heard the noise of the exchange of words between his mother and the accused and at that time, he saw the accused pouring diesel on his mother. His mother called him by his name to come and even before P.W.1 could reach, the accused threw a lighted matchstick on his mother and immediately his mother was in flames. On reaching the place P.W.1 asked the accused as to why he had done like that, which ended in a scuffle between the two and they were rolling on the ground. The accused always used to have a knife and by removing that knife he stabbed him near his left leg knee and the accused made good his escape. By using a gunny bag, the flames on his mother was attempted to be put out. P.W.1 went to the police station to give a complaint. He got the complaint reduced into writing by securing a person, who was available near the police station and gave the complaint at the police station. Ex.P.1 is the said complaint. His wife P.W.2 took injured Nachammal to the Government Hospital at Pollachi. Nachammal breathed her last at 11.30 p.m. in the night.

(3.) HAVING regard to the submissions made by the learned counsel on either side, we went through the entire materials on record. Ex.P.15 is the judicial dying declaration recorded at 2.00 p.m. by P.W.11, the Judicial Magistrate. P.W.9 is the duty Doctor, before whom Nachammal was taken for treatment at 12.30 p.m. on 27.8.2002 within 2 1/2 hours. P.W.13 admitted that Pollachi can be reached from the Police Station by one hour or so. The occurrence place is 5 kms away from the investigating police station. Therefore to reach Pollachi from the occurrence Village, it may take not less than one hour. The occurrence was at 10.00 a.m. on 27.8.2002. The evidence shows that a Car came by that side and it was stopped, in which injured Nachammal was taken to the hospital by P.W.2 accompanied by P.W.5. Therefore we find that at the quickest possible time injured Nachammal was taken to P.W.9 for treatment. P.W.9 has no axe to grind against the accused nor has any special interest to support the prosecution. Her evidence shows that Nachammal, when examined by her, was conscious and oriented and Nachammal in clear terms implicated the accused in the crime, as put forward by the prosecution. A faint argument is made by the learned counsel for the appellant that as P.Ws.2 and 5 were with Nachammal in the Car on their way to hospital, there is a possibility of P.W.2 and P.W.5 tutoring Nachammal. We searched in vain their entire evidence whether could it be true and our answer is in the negative. P.W.5 has no special interest in the prosecution case nor does he have any grouse against the accused. P.W.5 would state that enroute Nachammal was blaming the accused as the person responsible for the crime. Though P.W.5 would state that, to him Nachammal gave a oral dying declaration implicating the accused, yet, P.W.14 admitted that when P.W.5 was examined during investigation, he did not make such a disclosure. Therefore without any difficulty, we disbelieve the oral evidence of P.W.5 that Nachammal gave a oral dying declaration to P.W.5 on their way to the hospital. P.W.2 had not deposed that Nachammal had given any such oral dying declaration to P.W.5. As stated earlier, P.W.5 is not an eye witness to the occurrence. P.Ws.1 to 4 alone are the eye witnesses. Though P.W.5 would state that Nachammal on her journey to the hospital was blaming the accused as being the cause for her burn wounds, yet, P.W.2 is totally silent. His evidence shows that P.W.5 was seated in the front side while Nachammal was with her daughter-in-law in the back seat. As we noted earlier, P.W.5 is an independent person. If really P.W.2 had tutored her mother-in-law to give a particular version as she wanted, then P.W.5 would not have failed to mention that in his evidence. Nachammal must be having terrible pain and agony as her burn injuries was fixed at 80% and therefore the possibility of Nachammal blabbering in the car mentioning the name of the accused in causing injuries to her cannot be totally ruled out. At the earliest point of time namely, at 12.30 p.m. on 27.8.2002, Nachammal had stated to P.W.9 that the accused had poured diesel on her and then set fire to her. Under these circumstances we reject the argument of the learned counsel for the appellant that by the time Nachammal was taken to the hospital, she was tutored by P.Ws.2 and 5. In other words, we conclude that the oral dying declaration made by Nachammal to P.W.9 is a voluntary act on her part without any inducement from any quarters including P.Ws.2 and 5.