IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 25TH SEPTEMBER 2009 / 3RD ASWINA 1931 CRL.A.No. 1482 of 2005(B) ------------------------- SC.598/2004 of ADDL. SESSIONS COURT (AD HOC-II), KASARAGOD CP.64/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... APPELLANT(S): PETITIONER ---------------------------------------- PURUSHU @ PURUSHOTHAMAN, CONVICT NO.2083, CENTRAL PRISON, KANNUR. BY ADV. ADV.M.R.JAYAPRASAD(STATE BRIEF) RESPONDENT(S): ------------------------ STATE OF KERALA. PUBLIC PROSECUTOR SRI. NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08.09.2009 THE COURT ON 25.09.2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 1482 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 25th day of September, 2009. JUDGMENT Bhavadasan, J, The appellant, who was prosecuted for the offence of uxoricide was found guilty. He was therefore convicted and sentenced to suffer imprisonment for life. 2. The prosecution unfolds the story thus: P.W.1, the daughter of the deceased, and the accused were staying at a place near Arayi Karthika. She was studying for SSLC at that time. Her brother was staying with her grandmother. Her parents are casual labourers. The prosecution allegation is that the accused, who comes drunk almost everyday thrashes the deceased creating mess in the house. On the day of the incident, that is on 9.6.2000, according to the prosecution, at about 3.45 p.m. while the deceased was cooking food, accused is said to have come Crl.A.1482/2005. 2 home drunk and picked up quarrel with the deceased. The further allegation is that thereafter the accused drenched her with kerosene and set her on fire. The victim ran out of the house in flames. The accused is alleged to have left the place. Hearing the wails of the victim and P.W.1, people rushed to the place. The victim was removed to the Government Hospital at Kanhangad. She was advised to be taken to Pariyaram Medical College for better management. She was taken in an ambulance to the said hospital. 3. On receiving information about the incident, a Head Constable, namely Narayanan, (HC 183) from Hosdurg Police Station went to the Hospital. He found that the victim was unable to give any statement and therefore recorded Ext.P1 first information statement given by P.W.1. When he returned to the station, P.W.14, the Sub Inspector of Police, on the basis of Ext.P1, registered Crime No.284 of 2002 under Section 307 Indian Penal Code. Investigation was taken over by P.W.10. He visited the place of occurrence and prepared Ext.P5 scene mahazar. He Crl.A.1482/2005. 3 recovered M.O.3. It appears that while undergoing treatment at Pariyaram Hospital, the victim breathed her last. Therefore, P.W.10 conducted inquest over the body of the victim and prepared Ext.P4 inquest report. M.O.2 Lunki found on the body was taken into possession. He filed Ext.P9 report before the JFCM seeking to alter the offence from Section 307 to one under Section 302 IPC. As per Ext.P8 seizure mahazar he seized M.O.1 Maxi said to have been worn by the victim at the relevant time. On 24.7.2002 the accused was arrested and produced before court. Statements of witnesses were recorded by him. In the meanwhile, postmortem over the body of the victim was conducted by P.W.12, who furnished Ext.P14 report dated 26.6.2002. On 10.6.2002, as per the requisition made by the police and as directed by the Chief Judicial Magistrate, Kanhangad, P.W.6, the Additional Chief Judicial Magistrate, Thalassery recorded the statement of the victim from the hospital after obtaining Ext.P6(a) certificate from P.W.15, the Doctor, who was attending to the victim at the relevant Crl.A.1482/2005. 4 time. The investigating Officer had the scene plan prepared and investigation completed. P.W.11 procured Ext.P13 chemical report from the Forensic Lab in relation to the articles sent for chemical examination. Thereafter he verified the records and laid charge before court. 4. JFCM-I, Hosdurg took cognizance of the offence. On appearance of the accused before the said court, all legal formalities were complied with. The learned Magistrate found that the crime is one exclusively triable by a court of Sessions and accordingly committed the case to Sessions Court, Kasaragod. The said court made over the case to Additional Sessions Judge (Ad hoc-II), Kasargod for trial and disposal. 5. The trial court, on appearance of the accused before court, framed charge under Section 302 IPC. On a reading of the charges, the accused pleaded not guilty and claimed to be tried. Prosecution had therefore P.Ws. 1 to 15 examined Exts.P1 to P15 marked. M.Os. 1 to 3 were identified and marked. After the Crl.A.1482/2005. 5 closure of the prosecution evidence, the accused was questioned under Section 313 of the Criminal Procedure Code. He denied the incriminating circumstances put to him and maintained that he is innocent. He would say that the marriage between the deceased and himself was a love marriage. It was the second marriage of the victim. That was not to the liking of the family members of the accused. The brother of the victim was not on good terms with him. He is a casual labourer. He had a lot of love for his wife. A house was being put up in the property owned by his wife. So they were residing in a thatched shed with temporary coverings. That structure did not have a kitchen. Food was being prepared outside the shed. Since the mother of the victim had given the victim the property, the brothers of the victim were enimically disposed towards them. According to the accused, he was therefore falsely implicated with ulterior motive. Presumably finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. Crl.A.1482/2005. 6 On a consideration of the materials before it, the court below found that the prosecution has succeeded in establishing the case against the accused and hence was convicted and sentenced for the offence under Section 302 IPC. The said conviction and sentence are assailed in this appeal. 6. The appellant has preferred the appeal from jail and Adv. Sri.M.R. Jayaprasad was appointed as State Brief, who conducted the proceedings on behalf of the appellant. 7. That Rohini, the victim is no more is a fact not in dispute. There cannot be much dispute regarding the fact that she died due to burn injuries while undergoing treatment in the Medical College at Pariyaram. The prosecution would allege that she was set ablaze by the accused. According to the prosecution, the accused used to come home drunk almost everyday and thrash his wife. On the unfortunate day, he is said to have poured kerosene over her and set her on fire. The accused denied this allegation. He pointed out that he was not at the place at the Crl.A.1482/2005. 7 relevant time and he loved his wife very much. The court below chose to accept the prosecution case. 8. Learned counsel appearing for the appellant pointed out that the court below was not justified in entering a conviction. The available evidence, according to learned counsel, was totally insufficient to warrant a conclusion that the prosecution had established the case against the accused. The main item of evidence relied on by the court below is the dying declaration Ext.P6. It is a statement taken down by P.W.6. Learned counsel would point out that when the evidence is viewed as a whole, it can be seen that the dying declaration relied on by the court below cannot inspire confidence in the mind of the court and if it is so, it could not have been relied on. It is also contended that apart from the dying declaration, there is no other evidence at all against the accused. 9. Learned counsel did not dispute the proposition that if the dying declaration is found to be trustworthy, conviction Crl.A.1482/2005. 8 could be based on the same. But according to counsel, still in such cases also the courts have to approach the question with abundant care and caution for the reason that the accused has no opportunity to test the veracity of the statement, since the author of the statement is no longer available for cross-examination. Learned counsel also emphasized that if the dying declaration becomes suspicious in the light of other evidence in the case, it is only prudent that the court looks for corroborating evidence before accepting the dying declaration as a sole basis for conviction. 10. Elaborating on his argument, learned counsel for the appellant pointed out that the version given by P.W.1 in Ext.P1 is totally different from the one available in the dying declaration said to have been given by the victim. P.W.1 is the daughter of the deceased and the appellant. P.W.2 is the brother of the victim. These two witnesses have turned hostile and the learned counsel pointed out that the prosecution derives no assistance from their evidence. According to learned counsel, in the light of these facts Crl.A.1482/2005. 9 and other items of evidence, which give a totally different version of the incident, would cause doubt on the dying declaration said to have been given by the victim. According to learned counsel, therefore, the conviction and sentence cannot be sustained. 11. Learned Public Prosecutor on the other hand pointed out that the court below has taken pains to meticulously analyse the evidence and has come to the conclusion that the dying declaration is voluntarily given and is creditworthy. Learned Public Prosecutor pointed out that it is not as if that the evidence of P.Ws. 1 and 2 will have to be totally eschewed. May be that they have turned against the prosecution. But there are certain statements in their evidence, which would go in favour of the prosecution and the prosecution can certainly take the aid of those statements. The conduct of the accused, the statements given by P.Ws.1 and 2 support the prosecution case and also the dying declaration would clinchingly show that the court below was justified in its conclusion. According to the learned Public Crl.A.1482/2005. 10 Prosecutor the appeal is without any merit. 12. The evidence in the case reveals that at the relevant time P.W.1 was staying with her parents, namely, the accused and the deceased. P.W.1 is the principal witness in the case. She is the author of Ext.P1 first information statement. She accepts that she has given such a statement and that the signature in Ext.P1 belongs to her. A reading of the deposition would indicate that the accused was present at the relevant time. 13. As rightly pointed out, the main item of evidence in this case is Ext.P6, which qualifies as a dying declaration furnished by the deceased. It will be useful to refer to that item of evidence at this juncture. 14. P.W.6 is the judicial officer, who had recorded the statement Ext.P6. A reading of Ext.P6 shows that the statement of the victim was taken after obtaining a certificate from the Doctor that the victim was in a fit condition to give statement. P.W.15 in his evidence states that the certificate was issued by him. The Crl.A.1482/2005. 11 certificate is Ext.P6(a). The evidence of P.W.6 shows that all the legal formalities necessary for recording a declaration of the victim has been scrupulously followed. The evidence of P.W.15 shows that the victim had suffered 55% burn injuries. She was admitted in the Surgery Ward. It must be noticed that the statement of the victim was taken on the very next day, that is on 10.6.2002. The statements have been taken in a question and answer form. As per the statement given by the victim as recorded by P.W.6 it is seen that she had sustained burn when kerosene was poured on her by her husband, the accused, and she was set on fire using fire from the fire wood. A specific question was put to her as to who had done the said act and the emphatic reply was that it was none other than her own husband Purushothaman, the appellant. 15. One of the main arguments, as already noticed, is that Ext.P6 cannot survive in the light of the evidence of P.W.1 and Ext.P1 FIS. Ext.P1 FIS gives a different story altogether. FIS was also given on the very next day itself. True, there are some Crl.A.1482/2005. 12 inconsistencies in the evidence adduced by the prosecution. The defence set up was that it was a case of accident and that the accused was no where near the place at the relevant time. As rightly noticed by the lower court, there was no case for the defence that the death was a suicidal one. 16. Going by Ext.P6, it would appear that the origin of the incident could not have been clear to P.W.1. But there is sufficient evidence in the case to corroborate the version given by the victim that her husband used to come home drunk almost everyday and that she used to be assaulted. Here, one has to notice the predicament in which P.W.1 is placed. One cannot omit to note that the victim is her mother and the accused is her father. As already noticed, the oral evidence regarding the incident remains confined to P.Ws. 1 and 2, who are respectively the daughter and brother of the victim. A reading of the evidence of P.W.2 would show that he had gone to visit the deceased in the hospital. He deposed about the foul habits of the accused. At the risk of Crl.A.1482/2005. 13 repetition, one may notice that the evidence of P.W.1 clearly shows that the accused was at the place at the relevant time. Even assuming that these witnesses have chosen not to entirely support the prosecution, court will be justified in taking aid of those parts of their statements before court, which lends credence to the prosecution version. It is well settled that the principle “falsus in uno falsus in omnibus” is not applicable in India. 17. In the decision reported in Jakki alias Selvaraj v. State (2007(3) K.L.T. 117(SC)) it was held as follows: “As noted above, stress was laid by the accused- appellants on the non-acceptance of evidence tendered by P.W.13 to contend about desirability to throw out the entire prosecution case. In essence the prayer is to apply the principle of “falsus in uno falsus in omnibus” (false in one thing, false in every thing). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can Crl.A.1482/2005. 14 be maintained. It is the duty of Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liars. The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. all that it amounts to, is that in such cases testimony may be disregarded and not that it must be discarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called 'a mandatory rule of evidence'. Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary Crl.A.1482/2005. 15 corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate accused who had been acquitted from those who were convicted. The doctrine is a dangerous one, specially in India, for if a whole body of the testimony was to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. the aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate of exaggeration, embroideries or embellishment. An attempt has to be made to, as noted above, in terms of Crl.A.1482/2005. 16 felicitous metaphor, separate the grain from the chaff, truth from a falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto. As observed by this Court in State of Rajasthan v. Smt.Kalki and Anr. (AIR 1981 SC 1390), normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. These aspects were Crl.A.1482/2005. 17 highlighted in Krisha Mochi & Ors. v. State of Bihar (2002(2) KLT (SN)80” The same principle is laid down in the decision reported in Gangadhar Behera v. State of Orissa ((2002) 8 SCC 381) also. Therefore merely because a portion of the evidence of those witnesses are against the prosecution, that does not mean that their entire evidence should be discarded. The court has to evaluate evidence independently and has to come to a conclusion as to whether portions of their evidence can be accepted from those which have to be discarded. Merely because some portions are found to be false, it does not mean there should be a total rejection of their evidence. To separate truth from falsehood is the duty of the court. In other words, those statements made by such witnesses which go in favour of the prosecution can be accepted. So portions of the evidence of P.Ws.1 and 2 which strengthen prosecution case can certainly be relied on. Crl.A.1482/2005. 18 18. As noticed by the court below, there are certain discrepancies and inconsistencies in their evidence. The question is whether they have affected the prosecution case. 19. It is well settled that the evidence has to be evaluated as a whole and the court has to find out whether there is a ring of truth in the evidence furnished by the prosecution. One must remember that the power of reception, retention and reproduction varies from persons to persons. There is no mathematical formula with regard to the evaluation of evidence. Each witness may depose in his own manner depending upon his perception. What the court has to see is that whether the witness is speaking the truth. If the court finds that the prosecution case is true, then merely based on some fanciful imagination, the theory of benefit of reasonable doubt cannot be invoked. 20. In the decision reported in Devender Pal Singh v. State of N.C.T. of Delhi ((2002(3) SCALE 139) it has been observed as follows: Crl.A.1482/2005. 19 “Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh and others (AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava (AIR 1992 SC 840). If a case is proved perfectly it is argued that it is artificial, if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh and another v. State (Delhi Administration) (AIR 1978 SC 1091). Vague hunches cannot take place of judicial evaluation. “A Crl.A.1482/2005. 20 Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh (AIR 1988 SC 1998).” 21. The formidable evidence in this case is Ext.P6, which, as already observed qualifies as a dying declaration. Section 32 of the Indian Evidence Act is infact an exception to the hearsay rule. As far as this case is concerned, the provision applicable is Section 32(a) of the Indian Evidence Act. In order to apply the said provision, the following ingredients must be satisfied, (i) the person who makes the statement is dead, (ii) the statement, that is sought to be proved relates to (a) cause of death and (b) any of the circumstances or transactions which resulted in the death of the author of the statement, and (iii) the cause of death must be an issue. The statement may be either oral or written. But Crl.A.1482/2005. 21 one must remember that the author of the statement is not before court and the opposite side has no opportunity to test the veracity of the statement given by the victim. That necessitates that the court should exercise care and caution while basing its conviction solely on the dying declaration. It is well settled that a dying declaration by itself can form the basis of conviction. 22. In the case on hand, the statement has been recorded by a judicial Magistrate. In the decision reported in Satish Ambanna Bansode v. State of Maharashtra (AIR 2009 SC 1626) it has been held that a dying declaration made to a Judicial Magistrate and recorded by him has a high evidentiary value. He is a neutral person and he is disinterested in the success or failure of the prosecution. 23. Admissibility of a dying declaration is based upon the principle that the sense of impending death produces in man's mind the same feeling as that of the conscious and virtuous man. It is often said that a man does not die with a