DHANAPAL Vs. STATE REP BY INSPECTOR OF POLICE

JUDGEMENT

(1.) The appellant/A1 stood for trial along with his wife (A2); A2 was acquitted of the charge by the trial Court. This Criminal Appeal is filed by the appellant/A1 against the judgment dated 07.07.2015 in S.C.No.59 of 2015 on the file of the Sessions Court, Fast Track Mahila Court, Nagapattinam, in and by which, he was convicted for the offence under Section 306 IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/-, in default, to undergo simple imprisonment for one year.

(2.) The genesis of the prosecution case leading to the conviction of the appellant/A1 is that the deceased Shanthi was the wife of P.W.3, who is the brother of the appellant/A1. P.W.1/de-facto complainant and P.W.2 are the mother and father of the deceased Shanthi. The deceased was given in marriage to P.W.3, which took place on 29.08.2003, and out of their wedlock, a male child was born to them. P.W.6 is the brother of the deceased Shanthi's mother (P.W.1). The deceased used to pledge jewels and household brass articles with P.W.6. Hence, for this purpose, P.W.6 Ilanagovan used to very often visit the house of the deceased Shanthi. The appellant/A1, along with his wife/A2, were living adjacent to the house of the deceased, and frequently, A1 used to indulge in quarrel with the deceased and her husband. Since P.W.6 used to very often visit the house of the deceased, the appellant/A1 used to speak ill of the deceased, by connecting her with P.W.6. In this situation, the daughter of the appellant/accused, namely Sundari eloped with one Kishore. On 29.07.2010, when the deceased Shanthi was with her husband, the uncle of the deceased, i.e. P.W.6, came to her house and the husband of the deceased told P.W.6 that here-after he should not come to his house and sent him out. At that time, the accused persons scolded the deceased in filthy words, stating that it is better for her to die than to live. Due to the continuous mental torture given by the accused persons, the said Shanthi (deceased) poured kerosene all over her body and set fire to herself, thereby she sustained burn injuries. Immediately, she was taken to Mayiladuthurai Government Hospital by "108 Ambulance" and was admitted on 29.07.2010 by P.W.3. On the next day, i.e. on 30.07.2010 at about 2 p.m., the said Shanthi succumbed to injuries. P.W.12 Inspector of Police, who received the intimation, went to the hospital and recorded the statement of P.W.1-mother of the deceased and came back to Police Station and registered a case in Crime No.242 of 2010 under Section 174 Cr.P.C. Since she died within seven years of her marriage, P.W.12 sent a copy of the complaint Ex.P-6 to the Revenue Divisional Officer for further action. P.W.14-RDO conducted inquest over the body of the deceased in the hospital as to the cause of her death and recorded the statement of the Panchayatdars, and thereby, P.W.14 came to the conclusion that the death was not due to dowry harassment. Ex.P-10 is the inquest report. He forwarded his enquiry report Ex.P-9 to Police. P.W.15 DSP took up the case for further investigation. He went to the place of occurrence on 31.07.2010 and recorded the statements of the witnesses, prepared Ex.P-2 observation mahazar and drew Ex.P-12 rough sketch. He recovered M.O.1 light yellow colour plastic kerosene can (of approximately 5 litres capacity). On 18.10.2010, he sent Ex.P-13 alteration report with regard to the alteration of offences, to the jurisdictional Magistrate Court. After completing all formalities and investigation, P.W.15 DSP filed charge sheet against the accused before the trial Court. The case was taken on file by the trial Court in S.C.No.59 of 2011. During the course of trial, on the side of prosecution, P.Ws.1 to 17 were examined, Exs.P-1 to P-15 were marked and M.O.1 was produced. When the accused persons were questioned under Section 313 Cr.P.C., they denied their complicity in the crime. They neither examined any witness, nor marked any document. Upon hearing the submissions of either side and considering the oral and documentary evidence available on record, after conducting trial, the trial Court convicted and sentenced the appellant/A1 as stated supra. Challenging the same, A1 has filed this appeal.

(3.) Learned counsel for the appellant/A1 submitted that most of the prosecution witnesses, i.e. P.Ws.1 to 5, who are the mother, brother, husband and two neighbours of the deceased and P.W.7 independent witnesses, all turned hostile. P.W.6 Ilangovan who is the uncle of the deceased, was not at the place of occurrence and his evidence is only hear-say. Though the main prosecution witnesses turned hostile, the Court below, by relying upon the dying declaration (Ex.P4) of the deceased and the evidence of P.W.9 Judicial Magistrate, who recorded the dying declaration, has recorded the conviction on the appellant/A1. Learned counsel for the appellant/A1 further submitted that P.W.10 Doctor who conducted post-mortem and P.W.16 Doctor who received the deceased in the hospital and gave treatment when she was brought in "108 Ambulance", have opined that the deceased sustained 100% burn injuries. Therefore, learned counsel submitted that a person with 100% burn injuries, cannot speak, and therefore, recording of Ex.P-4 dying declaration itself is doubtful.