REPORTABLE

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

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1. Leave granted.

2. Challenge 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.  

3. Questioning 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.

4. In 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.   

5. The 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

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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:

"Burn 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.

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"100%  burn  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

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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 :

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Appearances found at the postmortem:

"Moderately 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

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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.

6. The 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

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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.    

7. The  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.

8. Above 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 matter.  

9. The appeal is allowed to aforesaid extent.   

………..………………………….J. (Dr. ARIJIT PASAYAT)

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                                      .………..…………….……………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, February 12, 2009 =

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