SUBBAIAH Vs. STATE THROUGH THE INSPECTOR OF POLICE

JUDGEMENT

(1.) The Sessions Judge, Mahalir Neethimandam, Thoothukudi found the appellant, aged 43, father of three children, guilty under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.3,000/- in default to undergo Rigorous Imprisonment for six months. This judgment is under challenge in this appeal.

(2.) The contention of the accused is that the deceased died of suicide, whereas the contention of the prosecution is that the deceased died of homicide of which the accused is responsible. It is not in dispute that the deceased died out of complications of burn injuries. Who caused those burn injuries, whether it is caused by the deceased herself or it was caused by the accused with the intention of killing his wife is the issue to be considered.

(3.) The learned counsel for the accused would submit that the evidence of the sister-in-law of the deceased is not reliable and the dying declaration is highly suspicious and it is not safe to rely upon the dying declaration. It is pointed out specifically that there is no thumb impression in the dying declaration recorded by the Executive magistrate, but thumb impression has been obtained in the complaint. It is contended that without even knowing that the earliest complaint would amount to dying declaration, on the death of the complainant, the prosecution has fabricated the subsequent dying declaration after the death of the deceased and that is why, it does not bear the thumb impression of the deceased. The complaint did not have the certificate of the Doctor that the deceased was in a fit state of mind to give the statement. Reliance is placed upon the belated sending of the dying declaration to the Court, probabalizing the contention that the dying declaration ought to have been brought into existence after the death of the deceased. There is no explanation on the side of the prosecution as to why the subsequent dying declaration did not contain the thumb impression of the deceased, while the earlier complaint bear the thumb impression of the deceased. Apart from that, the way of writing of the complaint running to two complete pages without even leaving space for margin is indicative of the fact that the thumb impresshion should have been obtained in a blank paper and the content should have been filled upon at a later point of time is the contention raised on behalf of the defence. This contention appears to be probable in the light of the comparison of the complaint at the earliest point of time and the dying declaration recorded by the Magistrate at a later point of time.