(Prayer: Criminal Appeal is filed under Section 374(2) of Cr.P.C. to call for the records in S.C.No.128 of 2016, dated 29.11.2022 passed by the learned Mahila Court, Pudukottai and to set aside the same.)

G.K. Ilanthiraiyan, J.

This appeal has been filed as against the Judgment passed in S.C.No.128 of 2016, dated 29.11.2022, on the file of the Mahila Court, Pudukottai, thereby convicting the appellant for the offences punishable under Sections 417 and 302 of IPC.

2. The case of the prosecution is that the accused and the deceased fell in love and were in a live-in-relationship. The accused deliberately concealed the fact from the deceased, that he was already married and had a wife and children. One year before the occurrence, the deceased had come to the knowledge of the said fact. Upon learning this fact, the deceased had a fight with the accused. The accused, without informing the deceased's parents, arranged for her stay in a women's hostel in Pudukkottai. He was helping her continue her studies. When the accused was unable to pay the deceased's hostel fees, he took the deceased to his own house, from where the deceased continued to attend college. Thereafter, the deceased went to her native village for semester holidays. She returned on 28.10.2015 at about 08.00 a.m. Upon return, she went to the house of the accused. At that time, the accused was alone in his house. At that juncture, the accused had a quarrel with the deceased because she had gone to her parents' house without informing him and requested the remaining portion of Rs.500/-, which he had given her for college expenses. The deceased had given only Rs.100/- as balance to the accused. Immediately, the accused became angry and imposed a minor punishment by making her kneel and raising her hands. He also pulled her hair and beat her.Thereafter, at about 9:00 a.m., the accused, with the intention to kill the deceased, took a kerosene bottle kept in the thatched kitchen outside his house, poured it on her, and set her on fire while she was standing in the middle of the tiled house. Therefore, the deceased suffered burn injuries.  The  accused  took  her  to  the  Government  Hospital, Pudukkottai for initial treatment. She was then referred to Thanjavur Medical College Hospital for higher treatment. Despite medical treatment, she died from her injuries on 10.11.2015 at 07.00 p.m.,

3. On the basis of the complaint, the respondent registered an F.I.R in Crime No.143 of 2015 for the offences punishable under Sections 307 of IPC and thereafter, the offences were altered into Sections 417, 420, 496, 495, 323, 366 and 302 of IPC. After completion of investigation, the respondent filed a final report and the same has been taken cognizance by the Trial Court.

4. On the side of the prosecution, in order to bring the charges to home, they examined P.W.1 to P.W.11 and Exs.P1 to P17 were marked.  The prosecution also produced Material Objects M.O.1 and M.O.2. On the side of the accused, one witness was examined as D.W.1 and one exhibit was marked as Ex.D1. The Court documents Ex.C1 and Ex.C2 were marked.

5. On perusal of the oral and documentary evidence, the trial Court found the accused guilty for the offences punishable under Sections 417 and 302 of IPC. He was sentenced to undergo one year Rigorous Imprisonment and was imposed a fine of Rs. 50,000/-, in default, to undergo six months Simple Imprisonment for an offence punishable under Section 417 of IPC. He was further sentenced to undergo Life Imprisonment and imposed a fine of Rs. 2,00,000/- in default, to undergo one year Rigorous Imprisonment for an offence punishable under Section 302 of IPC. Aggrieved by the same, the present appeal has been filed by the appellant.

6. The learned counsel for the appellant submits that immediately after the alleged occurrence, the deceased was taken to the Government Hospital, Pudukkottai, where, the Accident Register was recorded stating that the deceased had poured kerosene on herself in an attempt to commit suicide. The original Accident Register, where the deceased’s accident was first recorded was marked as Ex.C1. After the initial recording, the deceased was referred to Thanjavur Medical College Hospital,where the Accident Register of the deceased was recorded and the same was makred as Ex.C2. Both the Accident Registers clearly established that the deceased herself poured kerosene and set fire on her own and therefore, it is nothing but clear suicide. In fact, the deceased was immediately admitted to the Government Hospital, Pudukottai. A Sub-Inspector of Police, named Backiam, enquired both the accused and the deceased. However, the statement of the deceased could not be recorded, as she was unable to provide her left thumb impression. Accordingly, the statement of the accused was recorded, which was marked as Ex.D1 by the Sub-Inspector of Police of the respondent police. However, the Investigating Officer did not examine the said Sub-Inspector, nor did he register the FIR based on the first information. After recording the Accident Register, it was also duly informed to the respondent and even then, the respondent police did not register any FIR.  It is fatal to the case of the prosecution. Subsequently, on 30.10.2015, the deceased's statement was recorded and on the next day, FIR got registered. After the Accident Register, the deceased was tutored and she gave the statement to the effect that the accused poured kerosene on her and set her on fire. Without considering the above, the trial Court convicted the accused only based on the Dying Declaration. The doctor had certified that the deceased was in a fixed state of mind and was conscious when giving the dying declaration. The prosecution did not examine the doctor who certified the mental state of the deceased. The dying declaration was marked as Ex.P7. Therefore, the dying declaration cannot be relied upon by the prosecution to convict the accused. The statement, which was recorded by the Sub-Inspector of Police, from the victim is the first document, which was not produced by the prosecution before the Court. In fact, the Investigating Officer failed to examine the Sub-Inspector of Police, who recorded the statement from the deceased as well as the accused. The deceased died only on 10.11.2015.  After the postmortem, the doctor opined that the deceased died due to infection. There is no final opinion that the death was caused due to fire injuries. Further, there is a contradiction between the evidence of P.W.1 and other witnesses. The prosecution mainly projected the motive that the accused suspected the fidelity of the deceased and as such, poured kerosene on her and set her on fire. But the dying declaration did not even whisper about the suspection of her fidelity by the accused. Therefore, the entire conviction and sentence imposed on the accused cannot be sustained and it is liable to be set aside.

7. Per contra, the learned Additional Public Prosecutor appearing for the respondent submits that the dyding declaration is trustworthy and truthful and it can be relied upon solely for conviction. Admittedly, the deceased was in live-in-relationship with the accused. During their live-in-relationship, the accused used to harass the deceased to the core by suspecting her fidelity and also had beaten her. It was duly informed to her brother, who deposed as P.W.2. Though, the statement of the accused was recorded, the non- registration of the FIR is not fatal to the case of the prosecution. On the date when the statement was recorded from the accused, the deceased was unable to provide her left thump impression. Therefore, on 30.10.2015, the statement was recorded from the deceased, and the FIR was registered. The dying declaration was marked as Ex.P7. Hence, the Trial Court rightly convicted the appellant, and the conviction does not call for any interference of this Court.

8. Heard the learned counsel appearing on either side and perused the materials placed on record.

9. The accused and the deceased were in a live-in relationship. The accused had assisted the deceased with her studies. However, at that juncture, the accused used to harass the deceased to the core. The mother of the deceased was examined as P.W.1 and the brother of the deceased had deposed as P.W.2. The relevant portion evidence of P.W.1 is as as follows:-







10. The relevant portion of the evidence of P.W.2 is as follows:-









11. Thus, it is clear that the deceased was under the care of the accused and in fact, he had spent money for her studies. At the same time, he suspected her fidelity and had tortured her even for Rs.100 to Rs.500/-. He imposed small punishments on her. On the date of occurrence, while the deceased was standing in the middle of the room, he had taken kerosene from the kitchen and had poured it on the deceased and set her on fire and therefore, the deceased sustained injuries of 60%. Immediately, the deceased was taken to the Government Hospital, Pudukkottai by the accused, where, the Accident Register was recorded based on the statement of the accused, which was marked as Ex.C1. However, the deceased was referred to Thanjavur Medical College Hospital for higher treatment, where, the second Accident Register was recorded, which was marked as Ex.C2. The deceased was taken to the Thanjavur Medical College Hospital by P.W.2. Even then, nothing was recorded in the Accident Register stating that the deceased was set on fire by the accused. The statement recorded in Ex.C1 was copied in Ex.C2. Thereafter, on 30.10.2015 the statement of the deceased was recorded and on 31.10.2015 FIR was registered, which was marked as Ex.P9. On perusal of the statement of the deceased and also the FIR, it is revealed that the deceased was harassed and tortured by the accused and that he was the one who poured kerosene and set her on fire. Therefore, she sustained injuries. On the same day ie., on 30.10.2015 dying declaration of the deceased was recorded, which was marked as Ex.P7. It also corroborated the statement of the witnesses and FIR. It revealed serious allegations as against the accused in respect of torture and harassment at the hands of the accused.

12. The relevant portion of the dying declaration is as follows:-



Patient is conscious and well oriented enough to give dying declaration.











Patient is conscious and well oriented during the course of getting dying declaration.



13. Therefore, the deceased was subjected to severe harassment and torture at the hands of the accused.

14. Now it has to be seen that whether the prosecution proved the charge under Section 302 of IPC or not?

15. As per Ex.D1-State of the accused, and Ex.C1-First Accident Register and Ex.C2-Second Accident Register, the deceased poured kerosene and set herself on fire. But the statement, FIR and the dying declaration reveal that the accused poured kerosene and set her on fire. Although it is unclear whether the accused poured kerosene and set the deceased on fire or whether the deceased herself did so, it is evident that the deceased was subjected to severe torture and harassment by the accused. The prosecution failed to prove that the accused poured kerosene and set her on fire. However, due to torture and harassment at the hands of the accused, the deceased herself poured kerosene and set herself on fire. Therefore, though the prosecution failed to prove the charge under Section 302 of IPC, the accused is liable to be convicted for an offence punishable under Section 306 of IPC.

16. Insofar as the offence under Section 417 of IPC is concerned, the prosecution categorically proved the charge under Section 417 of IPC.

17. In view of the above, the conviction and sentence imposed on the appellant for the offence punishable under Section 302 of I.P.C are set aside. The appellant is convicted for the offence punishable under Section 306 of IPC and is sentenced to undergo seven years Rigorous Imprisonment and to pay a fine of Rs. 2,00,000/- in default, to undergo one year Rigorous Imprisonment.

18. Insofar as the conviction and sentence imposed on the appellant under Section 417 of IPC is concerned, the same is hereby confirmed.

19. With the above modification, the Criminal Appeal is partly allowed. It is made clear that if the appellant had already paid any fine, the same shall be adjusted towards the fine amount imposed by this Court. The sentences of imprisonment shall run concurrently. The period of imprisonment already undergone by the appellants shall be set off under Section 428 of Cr.P.C. The respondent police is directed to secure the appellant/accused and produce him before the trial Court for taking further steps.