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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S. VIMALA, T. KRISHNAVALLI, JJ.
Subbaiah - Appellant
Versus
State through The Inspector of Police, Koppampatti - Respondent
Crl.A.(MD) No. 253 of 2016
Decided On : 13-03-2018
Dying Declaration - Murder - Section 302 IPC, Section 498-A IPC - 294(b), 323 and 307 IPC - 28. Under the law, dying declaration, can form sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the form of question and answer and the answers be written in the words of the person making the declaration. But Court cannot be too technical and in substance if feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon, without any corroboration.
Fact of the Case:
The accused was found guilty under Section 302 IPC for setting his wife ablaze, resulting in her death. The accused contended that the deceased died by suicide, while the prosecution argued that the accused was responsible for her death.
Finding of the Court:
The court found the dying declaration unreliable and lacking in integrity, leading to the conclusion that the accused was not guilty of murder under Section 302 IPC but was found guilty under Section 498-A IPC for cruelty.
Issues: The main issue was whether the accused was responsible for the death of his wife or if it was a case of suicide. The reliability of the dying declaration and the credibility of witness testimonies were also key issues.
Ratio Decidendi: The court emphasized that a dying declaration can form the sole basis of conviction if it is free from doubt and recorded in accordance with the law. However, in this case, the dying declaration was deemed unreliable, leading to the acquittal of the accused under Section 302 IPC.
Final Decision: The accused was acquitted of the charge under Section 302 IPC and found guilty under Section 498-A IPC. The court ordered the accused to be set at liberty after considering the time already spent in custody.
S. Vimala, J.
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.
The facts in brief:
(i) The deceased Parameshwari is the wife of the accused; the accused and the deceased were residing in North Semapudur Village along with three children; the accused was an alcoholic and he used to treat the wife cruelly; the act of the accused was questioned by brothers of Parameshwari;
(ii) On 08.03.2014 at about 10:30 pm, when the deceased was serving food to the accused, she asked him for the salary of the husband and aggrieved over that, the accused allegedly poured kerosene over her body and set her ablaze; the rescue call by Ajith, the son of the deceased went in vain; it is alleged that the deceased in order to save her life pulled the hands of the accused, but the accused pushed her out and ran outside; she was admitted in Kovilpatti District Quarters Hospital by PW7/Doctor Yamuna. PW7 sent intimation to the Police, which is marked as Ex.P2; Parameshwari told the Doctor that she was set on fire by her husband; at that time she was allegedly semiconscious; she was with 90% burn injuries and the Accident Register copy is Ex.P3; in the presence of PW8/Doctor Gorlin Reshma on 09.03.2014 at about 9:30am, the Tahsildar Kovilpatti recorded the dying declaration of Parameshwari, the deceased; the Doctor issued a certificate that she is conscious and is in a fit state of mind to give the dying declaration; later Parameshwari died on 09.03.2014 at 01:30hrs and the death intimation was given to Police under Ex.P4.
(iii) PW9/Dr.Uma conducted autopsy on 10.03.2014 and gave the opinion that the death could have occurred 18 to 24 hours prior to autopsy and the death was due to complication of burn injuries and the postmortem certificate is Ex.P6;
(iv) PW14/Rathamani, the then Sub Inspector of Police, after receiving the intimation from the Hospital regarding the admission of Parameshwari with burn injuries went to the District Head Quarters Hospital, Kovilpatti and recorded the statement of Parameshwari; the statement was read over to deponent and left her hand thumb impression was also obtained. The witnesses Kaleeswari and Karpagam were along with the injured; she returned to the Police Station and registered a case in Crime No.37 of 2014 under Sections 294(b), 323 and 307 IPC.
(v) The Special Tahsildar/PW15, Muthuramalingam, at the request of the hospital authorities recorded the dying declaration of the deceased at about 9:15 to 09:45 am under Ex.P14.
(vi) PW16/Ajeeth Kumar completed the investigation and filed the final report under Section 302 IPC.
(vii) The Special Judge relied upon the evidence of PW1/sister-in-law of the deceased, PW2/son of the accused, the dying declaration of the deceased and found the accused guilty of committing murder of his wife.
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 impressio
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