Kannika Vs. Mookaiah
& Ors.  INSC 292 (12 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CIRIMINAL APPEAL NO. 286 OF 2009
(Arising out of SLP(Crl.) No. 2702 of 2008) Kannika ....Appellant Versus
Mookaiah & Anr. ....Respondents
Dr. ARIJIT PASAYAT,
in this appeal was the judgment of a learned Single Judge of the Madras High
Court allowing the revision petition filed by the informant- the respondent
No.1. Learned Assistant Sessions Judge Ambasamudram, Tirunelveli District had
convicted the appellants for the offences punishable under Sections 306 and
294(B) of the Indian Penal Code, 1860(in short the `IPC') so far as the accused
No.1, appellant herein is concerned and Section 306 IPC and 323 IPC so far as
accused No.2 is concerned.
correctness of the judgment an appeal was filed before the learned Additional
Sessions Judge Fast Track Court II Tirunelveli, Tirunelveli District, who
directed acquittal of the accused persons. The complainant filed a revision
petition which was allowed by the High Court.
The High Court
allowed the revision and restored the conviction as recorded by the trial court
but the sentence imposed was reduced.
support of the appeal learned counsel for the appellant submitted that the view
taken by the High Court is clearly unsustainable. Various important aspects
have been brushed aside.
prosecution version as unfolded during trial is as follows:
PW2 is a resident of
Vikramasingapuram. Murugammal (hereinafter referred to as the `deceased') was
the daughter of PWs. 2 and 3. PW3 is the wife of PW2. PW4 is the brother of
Murugammal. PW1 is a friend of PW4.
On 5.5.1999 at about
2.15 p.m., the first accused Kannika came to the house of PW2 and shouted that
his daughter had rang up asking for her son Rajesh, and spoke insultingly. At
that time, the second accused attempted to strangulate PW2 with a towel. Then,
he shouted for help. But others who were present there, pacified them. PW5 was
present in the scene of occurrence. Then, the matter was taken to PW6. At that
time, the first accused again came to the house of the victim and scolded
against the complainant party in filthy language. So, the victim did not take
any food and water afterwards. On the next day morning, she committed suicide
by pouring kerosene on herself. It was informed to PW7. A misunderstanding
between the parties was known to PW8. Then, the victim was taken to
Ambasamundram High Ground Hospital. Dr. Tamilselvi PW 10 examined the victim.
She found the following injuries:
over face, neck, chest.
Burn both arms &
legs Skin peeling."
and gave a wound
certificate Ex.P3. Then the victim girl was examined by Dr. Indira Sujatha PW
11. She found the following injuries.
injuries all over the body. Though she is conscious, blood pressure and pulse
are not regular due to water insufficiency. Lungs filled with water."
She sent an
intimation Ex.P4 to the Medical College Out Post Police Station. Dr. Thangaiya
(PW 12) was of the opinion that it is a fit case to record the dying
declaration. So, he sent an intimation - Ex.P5 to the Judicial Magistrate and
gave a certificate Ex.P6 about the condition of the patient. PW14 the Junior
Divisional Engineer in Telephone Department, V.K. Puram was examined in order
to verify whether both the telephones were used on 5.5.1999. He said that there
was no STD or ISD calls from both the telephone numbers. The telephone Number
of the victim is 22839 and the telephone Number of the accused is 22762. He
further said that there was no facilities to find out the local calls and gave
a report Ex.P8.
PW 15 was the Head
Constable in the Tirunelveli Medical College out Post Police Station. After
receiving an intimation from the hospital, he proceeded to the hospital and
accorded a statement from Murugammal. He sent an intimation to V.K. Puram
Police Station through phone. That intimation was received by the Head
Constable present there. PW 16 was the Judicial Magistrate, No. 6, Tirunelveli.
He received an intimation from the hospital and proceeded to the hospital and
recorded the statement from Murugammal in the presence of Dr. Thangaiya. At
that time, the victim was in a good state of mind to give dying declaration.
The dying declaration recorded by the Judicial Magistrate is Ex.P9. PW 17
Inspector of Tirunelveli Medical College out Post Police Station received the
death intimation of victim Murugamal from the hospital and sent it to V.K.
Puram Police Station. PW 18 the Head Constable in V.K. Puram Police Station
received the death intimation and handed over it to V.K. Puram Police Station.
PW 19 is the Head Constable in V.K. Puram Police Station. On 13.5.1999 at about
8 a.m. he received the death intimation and dying declaration from the
hospital. On the basis of them he registered a case in Cr. No.190/99 under
Section 174 of the Code of Criminal Procedure (in short `Cr.P.C.') and sent the
FIR to the Judicial Magistrate's Court and other superior officials. Then the investigation
was taken over by PW 20 Special Sub Inspector of V.K. Puram Police Station. He
proceeded to the Medical College Hospital and conducted inquest over the body
of the victim in the presence of witnesses PWs.9 to 12 and panchayatar. He sent
the body to the Medical College with a requisition letter through the Head
Constable 539 for postmortem PW 13 Dr. Selvaraj received the requisition and
conducted postmortem. The doctor, inter alia, found the following :
Appearances found at
nourished body of a female. Finger and toe nails blue in colour. Infected burns
seen on head, entire face, neck front and back entire chest including both
breasts, upper part abdomen, both upper limbs front and back, upper part of
back on both sides. Both gluteal region, both lower limbs front and back
including soles of feet. (Lower part of abdomen, external genitalia, low back
on both sides are free of burns). The base of the burnt area red in colour and
partly covered with pus material. Degloving of skin of both hands noted.
Surgical cut down seen on the inner aspect of left ankle. Singeing of scalp
hair, eyebrows, eyelashes and axillary hair noted,"
He gave a post mortem
report Ex.P7. Then, PW20 examined the witnesses Shanmugavel, Mukkiah, Jeyararn,
Chandran, Subramanian, Dhanalalcshmi, Mariappan, Murugan, Subramanian,
Muniandi, Kothar Mideen and Veeraganesh and recorded their statements. On
13.5.99 at about 3.00 p.m., he prepared the printed FIR Ex.P14, mahazar Ex.P2
and a sketch Ex.P11 in the presence of witnesses. Since the victim was dead, he
sent a requisition Ex.P12 to the Court to alter the Section into 306 IPC. Then,
he sent a requisition to the Judicial Magistrate No.6, Tirunelveli to send the
statement of the victim to the Judicial Magistrate, Ambasamundram. Further
investigation was conducted by PW21. He verified the mahazar, sketch and
atthachi prepared by PW20. So, he did not record the statements of witnesses
separately. On 16.6.1999, he went to Tirunelveli Hospital. After examining
several others, on 4.11.1999, he recorded the statement of Judicial
Magistrate-6, Tirunelveli. On 21.11.1999, he sent a requisition to the Junior
Engineer of Telephone Department, V.K. Puram asking the call details of Tel.
No.22893 of Murugammal's house and 22732 of accused Rajesh's house. He recorded
the statement of Dr. Tahngaiya.
After completion of
investigation, charge sheet was filed. Since the accused abjured guilt, trial
was held. Trial Court held them guilty. But the First Appellate Court allowed
the appeal. Complainant filed a revision which was allowed.
basic stand raised by the accused before the High Court that the date of
alleged occurrence is 5.5.1999 and the FIR was lodged on 13.5.1999.
Interestingly, the FIR was sent after 40 days to the Court. The effect of the
aforesaid factors does not appear to have been considered by the High Court. It
was also urged that the scope and ambit of Section 401 (3) Cr.P.C. has not been
kept in view.
prosecution was required to explain the delay which is quite large. It is to be
noted that the dying declaration was purportedly recorded by the police
constable and the magistrate on 6.5.1999. There is no explanation as to why the
FIR was lodged after a week. Still more interesting is the fact that the FIR
was sent after 40 days. This position has not been disputed by learned counsel
for the respondents.
being the position, we set aside the impugned judgment and remit the matter to
the High Court to consider the effect of the delay in lodging FIR and the delay
in dispatching of the same to the concerned court.
The scope and ambit
of Section 401(3) Cr.P.C. shall also be kept in view while dealing with the
appeal is allowed to aforesaid extent.
(Dr. ARIJIT PASAYAT)
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