Ashen Babu v. The Inspector of Police

J U D G M E N T

C.KUMARAPPAN, J. The sole accused is the appellant herein. The Criminal Appeal has been filed against the order of conviction passed in SC.No.244 of 2016 vide order dated 05.04.2019, by and in which the accused was convicted under Section 302 IPC, and was sentenced to undergo life imprisonment.

¶2The brief prosecution's case is that, the accused and the deceased were in a live-in relationship. The deceased had a son by name Arun, through her husband, namely Mr.Johny. On 19.03.2016, when the accused went to the deceased's house at about 7.00 in the evening, a squabble started between them, during the course of which, the accused took kerosene and poured on deceased and set her on fire. Owning to such act, the deceased suffered burn injuries and subsequently, died in the hospital on 20.03.2016 at 12:40 hours [PM].

¶3On receiving information from the hospital, Mr.Ravi [PW13], Sub Inspector of Police reached the hospital on 20.03.2016 at about 3.00.am and recorded the statement of the deceased Sathya, under Ex.P10-complaint and registered Ex.P11-FIR at about 5:30.AM on the same day. Immediately after the registration of the FIR, the same was forwarded to the jurisdictional Magistrate, and the Investigating Officer Mr.Ravichandran [PW16].

¶4On receipt of a copy of the FIR, the Investigating Officer [PW16] went to the scene of occurrence at about 6:05.AM on 20.03.2016 and prepared the observation mahazar [Ex.P6] and rough sketch [Ex.P12], in the presence of Mr.Sathishkumar [PW6] and PW6's assistant. In their presence, he had also seized the stove, woolen blanket and other materials found in the scene of occurrence, which were marked as M.Os.1 to 9. He then had also recorded the statement of Arun [PW1], Thilaga [PW2], Srinivasan [PW8], Karthikeyan [PW9] and other witnesses and thereafter, went to Dharmapuri hospital, where the deceased was admitted for treatment, and recorded her statement. Through the investigation, he came to know that there was an illegal relationship between the deceased and the accused and that the deceased's son born through her husband was the eyewitness to the occurrence. After he ascertained the involvement of the accused, he arrested him at about 15:00 hours, and recorded his confession statement and also made arrangements to remand the accused.

¶5In spite of treatment, on 23.03.2016 the victim died. After coming to know about the death of the victim, the Investigating Officer made arrangements for inquest and had also altered the FIR to one under Section 302 IPC. He also made arrangements to record the statement under Section 164 Cr.P.C of PW1 and other witnesses, which have been marked as Exs.P18 to P20. He has also recorded the statement of the Doctor [PW3], who first admitted the deceased at the hospital and the other Doctor [PW4], who conducted the postmortem. According to the postmortem Doctor [PW4], the deceased died due to the burn injuries. Thus, after completing the investigation, he laid the final report under Section 302 IPC.

¶6At trial, the prosecution had examined 17 witnesses as PW1 to PW17 and marked 27 documents as Exs.P1 to P27, and 10 Material Objects as M.O.1 to M.O.10.

¶7The Trial Court, after having considered the oral and documentary evidence, had arrived at a conclusion that the prosecution has proved the charge beyond reasonable doubts and thereby, convicted him for the offence under Section 302 IPC and sentenced him to undergo life imprisonment. Assailing the said order, the appellant has preferred the instant Criminal Appeal.

¶8The learned counsel for the appellant would vehemently contend that, though this case rests upon both ocular evidence and dying declaration, they are surrounded by reasonable doubts, touching upon the core issue. It is his further submission that, though PW1 projects himself as an eyewitness to the occurrence, there are wild contradictions. Further, the learned counsel would invite the attention of this Court about the statement of PW1 recorded under Section 164 Cr.P.C [Ex.P18], wherein, he narrated a different story as if the accused locked the door, which is contrary to his cross examination, where he had mentioned that the deceased did not bolt the door, and that 20 persons had reached the scene, immediately after the occurrence. He would also submit that there are no independent witnesses. It is the further submission of the learned counsel for the appellant that PW1, who was projected as the eyewitness, was aged about 17 years at the relevant point of time, and his silence while recording the AR, is in support of the defence. According to him, Ex.P1-complaint is an after thought. It is the further submission of the learned counsel for the appellant that even according to Ex.P26-the alleged dying declaration, the accused was implicated only to the extent of pouring kerosene and not for lighting fire. As such, according to the counsel, all these instances would unequivocally demonstrate the falsity over the prosecution's case, whereas, the Trial Court, without going into these aspects, has arrived at a wrong conclusion and hence, prayed to interfere with the order of the Trial Court.

¶9Per contra, the learned Additional Public Prosecutor would vehemently contend that the evidence of PW1 is wholly reliable, and that his mere silence at the time of admitting the deceased should not be taken against the prosecution, as he was under the control of the accused. Therefore, the mere silence of PW1, would in no way affect his credibility. He would further submit that admittedly Doctor Thamaraiselvi [PW3] has stated that the theory of explosion of the stove was recorded only based upon the instruction given by the accused, as such the same need not be given undue advantage. It is the further contention of the learned Additional Public Prosecutor that, the delay in registering the FIR, will in no way affect the prosecution's case. He would further submit that the evidence of the learned Judicial Magistrate and the dying declaration would overwhelmingly prove the prosecution's case, which is corroborated by other witnesses. As such, it is his submission that the prosecution has proved the charge beyond reasonable doubts and therefore, contended that there are no grounds to interfere with the order of the Trial Court.

¶10We have given our anxious consideration to the submissions made by either side.

¶11From the submissions made by either side, it is seen that the entire case rests upon two fold of evidences. One is, the ocular evidence through PW1, and the other is, the alleged dying declaration of the deceased. While looking into the evidence of the postmortem Doctor [PW4], the death of the deceased had occurred only due to the burn injuries, as evidenced under Ex.P5 certificate. This leads us to find out as to who had caused the burn injuries.

¶12In this regard, the learned counsel for the appellant drew the attention of this Court to Ex.P2-AR copy, recorded by PW3-Doctor Thamaraiselvi. According to her statement, AR copy was recorded at the instance of the accused and she had recorded that the deceased had sustained burn injuries, due to the explosion of the stove. As rightly contended by the learned Additional Public Prosecutor, such a statement made by the accused should not be given undue preference, but at the same time, we intend to look at the circumstances under which such statement was made by the accused.

¶13According to PW1, qua son of the deceased, he and the accused took the deceased to the hospital for treatment. At the time of the occurrence, PW1 was aged about 17 years and we may safely conclude that he would definitely be a wordly wise. Assuming that the accused had given a false reason before the Doctor, nothing prevented him [PW1] to object the accused statement.

¶14At this juncture, we must also keep in mind that PW1, being a minor, who had a great interest in his mother's life, could have maintained silence, for the safety of his mother. But, once the deceased reached the hospital and after their relatives had arrived there, nothing prevented him from informing them about the manner of occurrence. But, in the case in hand, while looking at the previous statement of PW1, which was recorded under Ex.P18 on 12.04.2016 under Section 164 Cr.PC, he mentioned that he had informed about the occurrence only on 20.03.2016. For ready reference, this Court deems it appropriate to extract the statement given before the learned Judicial Magistrate under Section 164 Cr.P.C. "20k; njjp kjpahdk; fhnthpg;gl;ozk; nghyP!; !;nlrdpypUe;J ,d;!;bgf;lh; nghd; br";rp tPil ghh;f;fDk;D brhd;dh';f ehd; tPl;il fhz;gpr;nrd;/ mg;ngh ehd; ,d;!;bgf;lh;fpl;nl !;lt; btof;fy rhh;. mt[U jhd; bfhSj;JdhUD brhd;ndd;/"

¶15Through the above statement, what emerges is, until 20.03.2016 evening the investigation was not proceeded on the footing that the deceased was murdered by the accused. But, if we look at Ex.P10, which is a complaint recorded by the Sub Inspector of Police [PW13], it is his statement that he recorded the statement of the deceased on 20.03.2016 at about

3.00.AM. According to the above Complaint, it was the case of a murder. But according to PW1, until 20th evening, he did not inform to the police as to the involvement of the accused.

¶16Here, even the recording of Ex.P10-complaint on 20.03.2016, at 3:00.AM is shrouded with a serious doubt, as PW3-Doctor, who recorded AR copy had stated that, when the deceased was admitted at the hospital, the deceased was not in a position to answer her query and hence, she was constrained to record the statement of the accused. For ready reference, the evidence of the Doctor [PW3], who gave Ex.P2-AR copy reads as hereunder:- "jP fhaj;jpd; typapdhy; ehd; nfl;l nfs;tpf;F mtuhy; gjpy; brhy;y ,aytpy;iy/" In her Cross examination, she has admitted as follows:- "fhak; gl;l rj;ah vg;go fhak; gl;lJ vd;Wbrhy;ytpy;iy/ cld; te;jth; jhd; tptu';fs; brhd;dhh;/"

¶17As such, from the Doctor's [PW3] evidence, it is apparent that the deceased was not in a position to even answer the small questions of the Doctor. However, the complaint [Ex.P10], contains the entire prosecution's story with minute details. For ready reference, the statement alleged to have been made by the deceased in the complaint [Ex.P10], is extracted below:- "new;W 19/03/2016Mk; njjp ,ut[ Rkhh; 7 kzp mstpy; ehDk; vd; kfd; mUQqk; tPl;oy; ,Ue;j nghJ mrd;ghg[ tPl;ow;F te;jhh; te;jt[ld; ehd; tPl;ow;F thlif gzk; ,Jtiu bfhLf;ftpy;iy/ eP tPl;ow;F te;J ,uz;L ehs; Mfptpl;lJ/ K:j;j bghz;lhl;ofpl;lna ,Uf;fpw tPl;ow;F te;jhy; gzk; thlif gzk; nfl;ngd; vd;W brhy;yp tuy vd;W brhy;yp ghg[tplk; nfl;nld; mjw;F mnrd;ghg[ gzk; bfhLf;f KoahJ vd;W brhy;yptpl;lhh; ,UtUf;Fk; tha; jfuhW Vw;gl;lJ vd; kfd; jfuhW bra;ahjPh;fs; vd;W brhy;yptpl;L tPl;ow;F btspna ngha; cl;fhh;e;J bfhz;lhd;/ vd;id jpl;of; bfhz;nl mnrd;ghg[ ,Ue;jhh;/ jpObud;W Rkhh; 9 kzpf;F ,dpnky; eP capUld; ,Uf;f TlhJ vd;W gf;fj;jpy; ,Ue;j !;lt;tpy; ,Ue;j kz;bzz;idia kf;fpy; vd; Kfk; kw;Wk; clk;g[ kPJ Cw;wpdhd; gpd;g[ jP bgl;o vLj;J bghWj;jp ,dpnky; eP capUld; ,Uf;f TlhJ vd;W brhy;yp vd;nky; jP ciwj;J bghWj;jp itj;jhd;/ jP clnd vd; clk;g[ KGtJk; gw;wpf;bfhz;lJ mjdhy; typ jh';fhky; ehd; ma;nah ma;nah rj;jk; nghl;nld;/ vd; kfd; btspapy; ,Ue;jtd; vd; rj;jj;ij nfl;L tPl;ow;Fs; te;jhd; mg;nghJ mnrd;ghg[ gf;fj;jpy; ,Ue;j fk;gsp kw;Wk; nghh;it vLj;J vd;nky; ,Ue;j beUg;ig mizj;jhd;/ " The above narration causes serious doubt over Ex.P10-complaint in the back drop of Doctor's (PW3) evidence. Further, the unnatural conduct of PW1 in not informing the manner of occurrence even to the police in the hospital at 9.00.AM, further enforces the doubt.

¶18In such a view of the matter, the alleged recording of the complaint is highly doubtful and this could be further fortified from the belated transmission of the FIR [Ex.P11] to the jurisdictional Magistrate on

20.03.2016 at about 7.45 pm, which is almost after 24 hours of the incident. Therefore, we are of the firm view that PW1 is not a wholly reliable witness.

¶19Furthermore, while looking at the other evidences, all of them are hearsay in nature. According to Srinivasan [PW8], who is the relative to the deceased, he was informed by PW1 that the deceased had committed suicide. His evidence, in this regard, is as follows:- fle;j 19/03/2016k; njjp ,ut[ 9 kzpapypUe;J 9/30 kzpf;Fs; vd; "

khkpahUf;F nghd; te;jJ/ rj;ah kzbzz;iz Cw;wp bfhSj;jpf;bfhz;lhh;/ vdnt mtiu M!;gj;jphpf;F Tl;of;bfhz;L nghfpd;nwhk; vd;W nghd; te;jJ/" During cross examination, he would admit in the follwing manner:- rk;gtk; gw;wp mUz; brhd;dij itj;J brhy;fpnwd;/ " "

¶20The statement of PW8 is contrary to the prosecution's case. As rightly contended by the learned counsel for the appellant, though there were about 20 people in the scene of occurrence, none was examined before the Court, to corroborate PW1's evidence. The learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court in Sampat Babso Kale v. State of Maharashtra, reported in (2019) 4 SCC 739 and would contend that the non examination of auto driver, or the persons who had arranged for an ambulance to admit the victim, is fatal to the prosecution's case. The relevant paragraph is paragraph 19 and the same reads as under:- "19.Another factor which needs to be taken into consideration is that none of the witnesses from the neighbourhood have been examined. Even as per the prosecution case it was the neighbours who first raised an alarm. There is no explanation why none of them have been examined. It is also the prosecution case that the accused husband along with another neighbour went to the hospital to arrange for an ambulance. This person has not been examined. The non-examination of these important witnesses leads to non-corroboration of the dying declaration. The best witnesses would have been the neighbours who reached the spot immediately after the occurrence. They would have been the best persons to state as to whether the victim told them anything about the occurrence or not."

¶21The learned counsel for the appellant also relied upon the judgment of the Hon'ble Supreme Court in Kamla v. State of Punjab, reported in AIR 1993 SC 374, wherein the Hon'ble Supreme Court held that when the dying declarations are inconsistent, it is highly dangerous to take out one statement from it, to pass the conviction against the accused. He also relied upon the three Bench judgment of the Hon'ble Supreme Court in Jayamma & Another vs. State of Karnataka, reported in (2021) 6 SCC 213, wherein the Apex Court has elaborately discussed various aspects, and had arrived at a conclusion that the silence of the son, who was accompanying the deceased, along with the accused, from informing the ghastly incident, could be a reasonable doubt, as it was difficult and impossible for the accused to win over the witnesses, within a short span of time. The finding reads as follows:- "22.7. The Seventh reason to dissuade us from harping upon Ext. P-5 is the conduct of the parties i.e. a natural recourse expected to happen. Had it been a case of homicidal death, and the victim's son (PW 2) and her daughter-in-law (PW 5) had witnessed the occurrence, then in all probabilities, they would have, while making arrangement to take the injured to hospital, definitely attempted to lodge a complaint to the police. Contrarily, the evidence of the doctor and the police officer suggest that while the son, daughter-in-law and neighbour of the deceased were present in the hospital, none approached the police to report such a ghastly crime. It is difficult to accept that the son and daughter-in-law of the deceased were won over by the accused persons within hours of the occurrence. This unusual conduct and behaviour lends support to the parallel version that the victim might have committed suicide."

¶22As already stated, the evidence of PW1 is not wholly reliable, and there were no independent witnesses. When the complaint [Ex.P10] itself is doubtful, the recording of the statement under Section 161 Cr.P.C, which is projected as a dying declaration, also cannot be relied upon, since the deceased was not medically fit to speak at the relevant point of time. Furthermore, even the dying declaration [Ex.P26] given before the learned Judicial Magistrate [PW17] does not implicate the accused. The evidence of the learned Judicial Magistrate [PW17] in this regard, reads thus:- vdJ ,uz;lhtJ fzth; ghg[t[k; mtuJ jk;gpa[k; vdf;F 7 gt[d; eifa[k; "

gzk; U:gha; 90.000 juntz;Lk; vd;W nfl;ljw;F fjit jg;ghy; nghl;L vd;id ,UtUk; kpul;o vd;nky; kz;bzz;iz Cw;wpdhh;fs;/ mt;t[st[ jhd;/"

¶23On a wholesome reading of the above statement, two aspects emerge. One is, the involvement of the brother of the accused Babu, and the demand of dowry as a reason for pouring kerosene on her. This aspect has not been spoken to by PW1, who according to the prosecution, was with the deceased and the accused, at the relevant point of time. Further, the involvement of another person was also not spoken by the other witnesses or mentioned in Ex.P10-complaint. Even assuming that we rely upon the dying declaration [Ex.P26], as rightly contended by the learned counsel for the appellant, there is no implication of the accused. Besides, the dying declaration was recorded at about 1.25.am, just prior to recording the complaint-Ex.P10, which runs contrary to the dying declaration [Ex.P26]. As such, it is evident that there are no statements to implicate the accused in the alleged murder. As such, in the light of the above detailed discussion, we are of the firm view that the prosecution has miserably failed to prove the charge, beyond reasonable doubt either through the ocular evidence or through the dying declaration.

¶24Before we close the curtain, we would like to recapitulate our findings in arriving at the above conclusion:-

¶1PW1's evidence is neither wholly reliable nor wholly unreliable.

¶2No corroboration for PW1 evidence.

¶3PW1's silence until evening of 20.03.2016 in informing the involvement of the accused, would cause reasonable doubt in the prosecution's case.

¶4In the place of PW3-Doctor's evidence, the statement recorded by the police under Ex.P10 appears to be a doubtful circumstances.

¶5There are no similarity between the dying declaration [Ex.P26] and the complaint [Ex.P10] do not corroborate, in spite of fact that the dying declaration [Ex.P26] was recorded about 1 ½ hours prior to the complaint [Ex.P10].

¶6There was a huge delay of 24 hours in transmitting the FIR.

¶7The case of pouring kerosene mentioned in the complaint [Ex.P10], was not at all projected by either PW1 or in the complaint [Ex.P10].

¶8Even assuming that we consider there was a dying declaration in Ex.P26, it does not implicate the accused to the final act of setting fire.

¶25Thus, we are of the firm view that there are numerous reasonable doubts in the prosecution's case, which touches upon the core issue of the matter. As such, we hold that the prosecution has miserably failed to prove the charge against the accused, beyond reasonable doubts, which entails him for acquittal.

¶26In the result, this Criminal Appeal stands allowed. The conviction and sentence passed in S.C.No.244 of 2016 by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri dated 05.04.2019 is set aside. As a concomitant, the appellant is acquitted from all the charges and the fine amount paid by him, shall be directed to be refunded. The bail bond, if any, executed by the accused shall stand cancelled. [M.S.R., J.] [C.K., J.]

20.12.2024 Index:Yes Speaking order kmi

M.S.RAMESH, J. and

C.KUMARAPPAN, J. kmi To

¶1The Sessions Court, Fast Track Mahila Court, Krishnagiri.

2.The Inspector of Police, B7 Kaveripattinam Police Station, Krishnagiri District.

¶3The Public Prosecutor, High Court, Chennai-104.

20.12.2024

2025:MHC:204 IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 25.09.2024 Pronounced on 20.12.2024 CORAM : THE HONOURABLE Mr. JUSTICE M.S. RAMESH AND THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN Ashen Babu ... Appellant/Accused Vs. State represented by Inspector of Police, B7 Kaveripattinam Police Station, Krishnagiri District. ... Respondent/Complainant PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal Procedure Code to set aside the judgment delivered by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri in SC.No.244 of 2016 dated 05.04.2019. For Appellant : Mr.Kabilan for Mr.P.Ezhil Nilavan For Respondent : Mr.A.Gokulakrishnan Additional Public Prosecutor *****