IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 CRL.A.No. 1314 of 2005(C) ------------------------- SC.129/2003 of FAST TRACK COURT NO.1(ADHOC), MANJERI CP.27/2002 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA .................... APPELLANT(S): -------------- CHANDRIKA, FC/NO.2320, CENTRAL PRISON, KANNUR. BY ADV. T.K.SREEKALA(STATE BRIEF) RESPONDENT(S): --------------- STATE OF KERALA. BY PUBLIC PROSECUTOR SRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.8.2009 , THE COURT ON 21/08/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ. ```````````````````````````````````````````````````` Crl. Appeal No. 1314 OF 2005 ```````````````````````````````````````````````````` Dated this the 21st day of August, 2009 J U D G M E N T Balakrishnan Nair, J. The appellant has preferred this Criminal Appeal, feeling aggrieved by the conviction and sentence imposed on her in S.C.No.129 of 2003 on the file of the Fast Track Court No.1 (Ad- hoc), Manjeri. The prosecution case in brief is as follows:- The deceased Aravindakshan and the appellant Chandrika were husband and wife. Two children, born out of the wedlock, died owing to renal failure. The appellant was always maintaining doubts that the deceased was having relationship with other women. So, there were frequent quarrels between them. The deceased, his brothers and his mother were workers engaged in sand mining. On 1.1.2001, the deceased came to his house to take lunch. Some dirt was found in the cloth of the deceased. Immediately, the appellant started quarrelling, which resulted in the husband beating the wife. His brothers and mother rushed to the scene. It is stated that the deceased declared in open that he Crl.Appeal No.1314/05 : 2 : could no more suffer her. As suggested by his brother, the deceased went to the house of the appellant and brought her mother in an autorickshaw. The mother was appraised of the conduct of the appellant. The deceased went to bed at about 10.30 p.m. Later, at dead of night, at about 2.30 p.m., the cries of the deceased were heard from the house. P.Ws.1, 2, 6 and 7 rushed to the scene. The doors and windows were found locked. Initially, the glass of the front window was broken and it was found that something was burning inside the room. Thereafter, the door was opened by force and on entering the dining room, it was found that late Aravindakshan was lying in a burned condition. His shuddy worn at that time was also burning. On seeing the witness, the appellant, who was standing by the side, embraced her husband and thereupon she also suffered some burn injuries. The husband and wife were taken to Moulana Hospital, Perinthalmanna and from there, they were taken to the Medical College Hospital, Kozhikode, at 2.50 a.m. P.W.14, the Judicial Magistrate of the First Class recorded the dying declaration of Aravindakshan at the hospital in the presence of the duty doctor Crl.Appeal No.1314/05 : 3 : PW17. While, Aravindakshan was being taken in the jeep to the hospital, he told his brother that he was burned by his wife. In the dying declaration before the Magistrate also he repeated the same statement. Later, at 3.50 p.m. on 2.1.2001 on the basis of the information given by P.W.1, the crime was registered. Aravindakshan breathed his last, in the night on that day. It was at 00:30 am. of 3.1.2001. Initially, the crime was registered against appellant for the offence under Section 307 of the IPC, which was later converted to the offence under Section 302. PW16, the Circle Inspector of police, conducted the major part of the investigation and PW15 completed the investigation and laid the charge before the Chief Judicial Magistrate Court, Perinthalmanna. The learned Magistrate committed the case for trial by the Sessions court. 2. The appellant pleaded not guilty to the charge. The prosecution, to prove its case, examined PWs 1 to 17 and marked Exts.P1 to P18. Material objects MO1 to MO3 were also produced. From the side of the defence, Exts.D1 to D6 were marked, which were the contradictions in the CD statements of the Crl.Appeal No.1314/05 : 4 : prosecution witnesses with reference to their deposition before the Court. The learned Sessions Judge, after hearing both sides and also taking into account the statement filed by the appellant under section 313 Cr.P.C., found her guilty of the offence under section 302 IPC and sentenced her to undergo rigorous imprisonment for life. A fine of Rs.5,000/- and a default sentence of one year's simple imprisonment was also imposed. 3. The appellant preferred this appeal from jail. We heard learned counsel Smt.T.K.Sreekala on behalf of the appellant. She submitted that one of the important materials relied on by the trial court to find the appellant guilty is the dying declaration given by the deceased to the learned Magistrate PW14. The statement of PW1, the Head Constable who recorded Ext.P2 F.I. Statement, would show that the deceased was not in a fit condition to make any statement. Therefore, he recorded the statement of PW2 and registered the crime. If the dying declaration, Ext.P11, is excluded from consideration, the case is considerably weakened. Further, even assuming the deceased was in a mentally fit condition to give the statement, the materials on record would show that he was Crl.Appeal No.1314/05 : 5 : harbouring bitter animosity towards the appellant. The same would further be evident from the last sentence in Ext.P11, wherein he prayed for taking action against his wife, even though he was at the door of the next world. So, the statement of such a person cannot have the sanctity, usually attached to a dying declaration, given based on the assumption that a man at the door of the next world will not speak falsehood. Thirdly, it is pointed out that the witnesses PWs 1, 2, 6 and 7 are interested witnesses. They are either relatives of the deceased or neighbours. So, they echoed the view expressed by the deceased that his wife is responsible for the burn injury. In fact, they have not seen the incident, but they spoke of the incident against the appellant, based on the statements made by the deceased to them, while they entered the room or took him to the hospital. According to the appellant, the defence version that the deceased was trying to set fire to the appellant by pouring kerosene on the appellant, but, when she pushed away the can containing kerosene, accidentally it fell on the deceased and fire was caught from the burning torch held by him is probable. So, the appellant is entitled to get the Crl.Appeal No.1314/05 : 6 : benefit of doubt, it is submitted. 4. In answer, Sri.Noble Mathew, learned Public Prosecutor, submitted that there is no reason for the deceased to falsely implicate the appellant in this case, especially, when he was moving to the next world. If he attempted to burn his wife and thereby eliminate her and, in that process, he suffered burns accidentally, in normal circumstances, he would not have falsely implicated his wife. So, his words have the ring of truth in it. The capacity of the deceased to make statement, when it was recorded by the Magistrate, is certified by the doctor PW17. He has not been cross examined by the defence. The material on record would show that before the commencement of the dying declaration and after its conclusion, the said doctor examined the deceased and certified about his capacity to make the statement. The possibility of him making a false accusation against his wife at the time when he was departing from this world is very remote and inherently improbable. The dying declaration is supported by the evidence of PWs 1, 2, 6 and 7. It is also supported by the letter (Ext.P3) written by the appellant. The defence has admitted Crl.Appeal No.1314/05 : 7 : writing of major part of the letter, which is in the form of a suicide note. In the latter part, the letter discloses the intention of the appellant to kill her husband. The defence tried to explain the last part by saying that it was added by PW6, the younger brother of the deceased, who found it from the shelf. But, learned Public Prosecutor pointed out that the learned Sessions Judge had considered that point and rightly rejected the said version of the defence. So, Ext.P3 also supports the case of the prosecution. At 2.30 a.m. in the dark night, what happened behind the closed doors is known only to three persons present there - the appellant, her mother and the deceased. The version given by the appellant is proved to be false by the materials on record. If that be so, it will be one more circumstance against the appellant, it is submitted. 5. We considered the rival submissions and perused the evidence and materials on record. It is common ground that the deceased Aravindakshan died of burn injuries sustained by him on the night between 1.1.2002 and 2.1.2002, while he was in his house. The point to be considered is whether he sustained the Crl.Appeal No.1314/05 : 8 : burn injury accidentally, while trying to burn his wife, as suggested by the defence or it was a case of pouring kerosene over him by the wife and setting fire to him by her, as claimed by the prosecution. In the postmortem certificate, while noting antemortem injuries, the Doctor stated as follows:- “ B. Injuries Antemortem - Burns dermoepidermal with charring of epidermis (superficial skin) with charred blisters (high temperature low time burns) over whole of face, whole of left ear, outer rim of right ear, whole of front of neck extending to sides whole of front of chest extending through sides to back (varying extent more at midriff) of external genitalia (penis completely charred including scrotum around it). Front, inner and outer thigh, extending just over the knees. Similar burns of both upper limbs, all over. Right palm showed charring also of palmar skin and finger tips, left distal palm and 2nd to 5th fingers spared. Legs, ankles, feet and soles were normal.” 6. Going by the nature of the above noted injuries, we feel that the suggestion made by the defence is inherently improbable. While pouring kerosene, if the appellant pushed away Crl.Appeal No.1314/05 : 9 : the can and as a result, the kerosene fell on the deceased, it will be mainly on the front lower portion of his body. But, in this case, we notice that the burn injuries are found on the front portion of the head, face, neck, etc. The postmortem report describes them as high temperature low-time burns. Some of the body parts like genitalia are completely burned out. Such burn injury can happen, if only the clothes and body are immersed in kerosene and thereafter fire is caught and not in an accident of spilling kerosene and thereafter burning. The casual fall over a standing person will not result in such immersing of kerosene or such deep burn injuries. So, the medical evidence itself ruled out the possibility stated by the defence. 7. Further, the reasons urged by the appellant to discard the dying declaration do not appeal to us. The presumption that when a man is at the doors of the next world will speak only truth will apply to this case also. The grounds pointed out are not sufficient to dispel the said presumption. The statement in the dying declaration is supported on material particulars by the versions of PWs 1, 2, 6 and 7. All the four have spoken of having Crl.Appeal No.1314/05 : 10 : seen the deceased lying collapsed in the corner of the dining room and they found that the shuddy worn by him was found burning. As mentioned earlier, medical evidence also shows that the front top portion of the body like face, neck etc were charred, the shuddy and genitalia were completely burned out. All of them found the appellant standing by the side and on seeing the people coming, she went to her burning husband and embraced him. In that process, she suffered some burn injuries. The said version is also probabalised by the medical evidence regarding the injuries on the appellant. Ext.P17 medical certificate would show that she suffered only 30% burning. 8. We found it difficult to discard the version of the witnesses as the statement of the interested persons. They were the natural witnesses available in the neighbourhood, who rushed to the scene on hearing the cries of the deceased. They are not casual witnesses or planted witnesses. All of them have spoken about the version given by the deceased to them that the appellant is responsible for the burning. In view of the above position, we find it difficult to accept any of the submissions made by the Crl.Appeal No.1314/05 : 11 : appellant, which we have already noted above. In the result, the appeal fails and it is dismissed. Sd/- (K.BALAKRISHNAN NAIR, JUDGE) Sd/- (P.S.GOPINATHAN, JUDGE) aks // True Copy // P.A. to Judge Crl.Appeal No.1314/05 : 12 : K.BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ. ```````````````````````````````````````````````` Crl. Appeal No. 1314 OF 2005 ```````````````````````````````````````````````` J U D G M E N T 21st day of August, 2009