IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 CRL.A.No. 185 of 2005() ----------------------- SC.203/2001 of ADDL.SESSIONS COURT, PATHANAMTHITTA CP.105/1999 of JUDL. FIRST CLASS MAGISTRATE'S COURT-II, ADOOR .................... APPELLANT/ACCUSED: ----------- SUSEELAN, S/O.BALAN, CONVICT NO.8565, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT/COMPLAINANT: ------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- CRL.APPEAL No.185 OF 2005 ----------------------------------------------------- DATED THIS THE 18th DAY OF AUGUST, 2008 J U D G M E N T Balakrishnan Nair, J. The appellant challenges the conviction and sentence imposed on him by the Additional Sessions Judge, Pathanamthitta in S.C.No.203/01. He was charge sheeted for the offence under Section 302 IPC. He was found guilty and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs.10,000/- and in default to undergo simple imprisonment for a further period of one year. 2. The prosecution case in brief is as follows: The appellant/accused married Sobha, the daughter of PWs 1 and 2 on 12.9.1988. For some time, they resided with the father of the appellant and thereafter they built a thatched house in the same compound near the family house. At the time of marriage, an amount of Rs.20,000/- was promised to be paid as dowry. But, the parents of Sobha could pay only Rs.15,000/-. For non-payment of the balance amount, the accused was harassing his wife Sobha. Since the dowry demand was not met, on 19.6.1999, the appellant poured kerosene on the body of Sobha and set fire to her. She suffered severe burn CRL.A.No.185/05 -2- injuries. So, she was hospitalised. She breathed her last on 2.7.1999. PW1 lodged Exhibit P1 first information statement with the Sub Inspector of Police, Koyippuram, PW18 on 21.6.1999 at about 2PM. Initially, Crime No.147/99 was registered under Section 498A and 307 of the IPC. Later, on the death of Sobha, report was filed by the Investigating Officer before the Magistrate's Court stating that the offence committed is under Section 302 IPC. PW20, the Circle Inspector of Police took over the investigation. He completed the investigation and laid the charge before the J.F.C.M., Kozhencherry. The learned Magistrate committed the case to the Sessions Court for trial which was made over for trial to the Additional Sessions Court, Pathanamthitta. From the side of the prosecution PWs 1 to 21 were examined and Exhibits P1 to P39 were marked. Material Objects MO1 to MO14 were produced and marked. After questioning of the accused under Section 313 Cr.P.C., DW1 was examined as defence witness. The learned Sessions Judge after hearing both sides convicted and sentenced the accused. Hence this appeal. 3. Mr.Grashious Kuriakose, learned counsel who appeared for the appellant, raised the following grounds: (1) According to the learned counsel, after the admission of deceased Sobha in the hospital, she gave three CRL.A.No.185/05 -3- versions regarding cause of burns on her body. At the time of admission, she told the Doctor PW16 that she sustained burn injuries by accident. A burning kerosene lamp fell on her, while she was reading. But, she told PWs 1, 2, 8 and 13 that the accused poured kerosene on her and set fire to her and therefore she suffered grievous burn injuries. But, to PW6, she told that she attempted to commit suicide and hence the burn injuries. In view of the above three versions regarding the reason for sustaining burn injuries, the learned counsel submitted that the appellant is entitled to get the benefit of doubt. All these versions can be taken as her dying declarations which are contrary to each other. When there is more than one dying declaration, the benefit of doubt goes to the accused, it is stated. It is also submitted that having regard to the facts of the case, it is quite unsafe to find the appellant guilty without corroboration. The dying declaration alone cannot be the basis for conviction. (2) The learned counsel for the appellant pointed out that the father of the deceased PW1 lodged the first information before the police on the night of 20.6.1999. The CRL.A.No.185/05 -4- incident took place on 19.6.1999. Next day itself, PWs 1, 2 and 8 visited the hospital. From the evidence of the above three witnesses, it is clear that they went to the police station on the said day itself and the police came to the hospital on the night of 20th June, 1999 and questioned the witnesses. But, Exhibit P1 FI statement is one recorded at 2 PM on 21.6.1999. So, the original first information statement has been suppressed. The version given by PW1 in the first information statement might have been different from the present case of the prosecution and therefore it was substituted by a fresh statement and the FIR was sent to the court implicating the accused. So, for not placing the correct facts regarding the lodging of the first information statement, the appellant is entitled to get the benefit of doubt. (3) The incident narrated by the prosecution regarding the pouring of kerosene and burning the deceased is inherently improbable. The deceased is a well built , able bodied lady. She was not confined at the time of incident by the accused. There were three matches at the scene of CRL.A.No.185/05 -5- occurrence. If the accused used those three matches to set fire to her, normally she will not stand there meekly and she would make her escape. So, the presence of three matches in the seen probabilise the case of suicide. Further, the father of the deceased, PW1 has stated that the accused used his cigarette lamp for setting fire to the deceased. So, the case of the prosecution on the above point lacks credence, it is submitted. (4) The learned counsel also pointed out that the motive proved by the prosecution for the commission of murder is non-payment of Rs.5,000/- towards dowry. The same in normal circumstances cannot be a ground for murder. The sequence of events narrated by the witnesses, including the murder and the accused going out, etc. would probabilise the case of the defence that it was a case of suicide. The motive proved in this case may be sufficient for suicide, but not for murder, it is pointed out by the learned counsel. The learned counsel also relied on the decisions of the Apex Court in Kundula Bala Subrahmanyam v. State of Andhra Pradesh (1993(2) SCC 684), P.Mani v. State of CRL.A.No.185/05 -6- T.N. (2006(3) SCC 161), Amol Singh v. State of Madhya Pradesh (2008(5) SCC 468) and also the decision in State of Maharashtra v. Sanjay D.Rajhans (AIR 2005 SC 97) in support of his submissions regarding the legal effect of more than one dying declaration. 4. The learned Public Prosecutor Mr.Jai George supported the judgment of the trial court. The case of the defence regrading more than one first information statement has been dealt with by the trial court in paragraph 7 of the judgment rightly, it is pointed out. The learned Prosecutor also referred to the statement of PW2 in the re-examination wherein, the said witness has clarified that, the statement was given to the police only on 21.6.1999. The learned Public Prosecutor also brought to our notice the deposition of PW1, which would show that he does not remember the exact date on which the information was lodged. The learned Public Prosecutor also pointed out that the said witness further stated that they went to the police station along with PW8 on the third day of the incident. So, there is reliable evidence to show that the first information was lodged only on 21.6.1999. The learned Public Prosecutor also brought to our notice the statement of PW3 who is an independent witness concerning the presence of the accused at the time of CRL.A.No.185/05 -7- occurrence. He has seen the accused going out from the house after the incident. It is also pointed out that while questioning under section 313 Cr.P.C., the accused has set up a plea of alibi. The same is a plainly false case set up by the accused. There is no reason to disbelieve PW3's version that the accused was present at the time of occurrence. The learned Prosecutor also pointed out the conduct of the accused in not taking the victim to the hospital on sustaining burn injury by her. The same points an accusing finger against the appellant. The learned Public Prosecutor relied on the deposition of PW7 (father of the accused) who has spoken that a portion of the dowry was remaining unpaid. Exhibit P16 is a document executed by the accused to take back deceased Sobha from her parental home. Sobha, because of the dowry harassment, had to take shelter in her parental home. The accused came there and in the presence of PW8, who acted as a mediator, gave a written undertaking in the form of Exhibit P16. In the said document, he has admitted the past ill-treatment of the deceased, it is submitted. The learned Prosecutor also took us through the evidence of PW6 wherein, she has stated that the reason for the injury was actually given by her, though the wound certificate would show that it was as given by the deceased. PW6 who is a near relative of the accused has stated before the Court CRL.A.No.185/05 -8- that Sobha came out from her house crying, “I am being killed”, though the witness later corrected that she was crying out “save me”. If it was a case of suicide, she would not have ran out of the house crying for help. The evidence of PW6, according to the learned Prosecutor, therefore would show that it was not a case of suicide, but homicide. PW7, who is the father of the accused, has also spoken about Sobha running out of the house engulfed by fire. According to the Prosecutor, the above evidence would point to the guilt of the accused only. Any hypothesis, consistent with the innocence of the accused, can be safely ruled out from the evidence on record, it is submitted. The learned Public Prosecutor also relied on the decision of the Apex Court in Sher Singh v. State of Punjab (2008(2) SCC(Cri.) 783) in support of his submissions. There were three dying declarations in that case. But, the court acted upon one which was found to be truthful and which was made before the Judicial Magistrate. The learned Public Prosecutor also brought to our notice the decision of this Court in Muhammed v. State (1999 (3) KLT 948) dealing exhaustively with the principles governing dying declarations. Going by the principles laid down in that decision, the learned Public Prosecutor submitted that the version given by the deceased before the learned Magistrate can be safely acted upon. CRL.A.No.185/05 -9- 5. In answer to the above contentions, the learned counsel for the appellant pointed out that in the re-examination of PW1, no question was put to him regarding his version that he went to the police station on the night of 20.6.1999. So, the submissions of the State on the above point has to be discarded, it is submitted. 6. We gave anxious consideration to the submissions of both sides. Before dealing with them, we would briefly refer to the evidence on record. PW1 is the father of deceased Sobha. He deposed that the marriage between Sobha and the accused took place on 12.9.1988. At the time of marriage, though the agreed dowry was Rs.20,000/-, he could pay only Rs.15,000/-. He also gave gold ornaments weighing 5 sovereigns. The accused and Sobha resided in the family house of the accused for some time. After about 3-4 months, they put up a thatched house. After three months, the accused started harassing his daughter and pressing her to get Rs.5,000/- from her parents. She was being physically manhandled and sent to her parental home. The accused used to kick and beat her demanding the balance dowry amount. Sobha came to PW1's house and told about the above incident. Later, Sobha while residing with her husband, was set on fire on 19.6.1999 at about 10 PM. It was a Saturday. On getting information that she is hospitalised with CRL.A.No.185/05 -10- serious burn injuries, he along with his wife and near relatives went to the hospital. They saw her lying in the hospital with burn injuries on various parts of her body. He asked her daughter what happened. She told him that after quarreling for not paying Rs.5,000/- the accused poured kerosene and burned her. At that time, her daughter has not lost her consciousness. She was recognising people and talking to them. When he asked about the details of the incident, she told him that the accused demanded the balance dowry amount. He quarreled with her and thereafter went out. He came back after some time and called her affectionately to his side. But she did not go. Suddenly, kerosene was poured on her and she was set on fire using a cigarette lamp. She ran out crying. Thereupon, the father-in-law's sister and others came and poured water on her. She was taken to the hospital in an autorickshaw. The witness stated that the accused has burned his daughter with the intention of killing her. She was under treatment for 14 days. Finally, she died on 2.7.1999. Earlier, when quarrel arose between the accused and Sobha, she was sent home. Later, PW8 who is the local leader of the Communist Party interfered in the matter and an agreement was executed under which PW1 has agreed to pay the balance amount after the next harvest. He has lodged Exhibit P1 information before the police. CRL.A.No.185/05 -11- He was subjected to extensive cross-examination by the defence. At one place in the cross-examination he has deposed that he went to the police station on 20.6.1999, though at another place he would say he does not remember the date and also that he went to the police station on the third day of the incident. PW2 is the mother of Sobha. She also deposed in tune with the statement of PW1. She has also deposed about the statement made by Sobha to her. According to her, Sobha told her that demanding the balance dowry amount, the accused picked up a quarrel with Sobha, manhandled her and went out of the house threatening to kill her. Later on coming back, he affectionately called Sobha to his side. But she did not go. While so, the accused poured kerosene on her and set fire to her. She cried and rushed out of the house and thereupon the relatives of the accused poured water on her and put out the fire. She was taken to the hospital in an autorickshaw and admitted there. PW2 was also extensively cross-examined by the defence. In the cross- examination, she had spoken that the police came to the hospital on 20.6.1999. But in re-examination, she has stated that the police questioned her only on 21.6.1999. She would claim that she happened to make a wrong statement as she was upset on seeing the ornaments of her daughter. CRL.A.No.185/05 -12- 7. PW3 is residing on the western side of the house of the accused. He knew the accused and his wife. The wife of the accused died of burn injuries. While she was reading a book the kerosene lamp fell on her and she suffered burn injuries. That was what was heard by him. On the date of incident he went to sleep before 9 O'clock. After 10 O' clock, on hearing a hue and cry, his wife roused him. He woke up and got out of his house. He saw Sobha, the wife of the accused lying in the courtyard of a relative of the accused. He went near to her. He saw burn injuries on both her hands. She was lying in the courtyard of the sister of the mother of the accused. Several people assembled there. Sobha was taken from there to the hospital in an autorickshaw. While Sobha was lying there, she was able to talk. At that time he saw the accused going out from his house. The accused was seen going to the nearby road. Since he disowned his statement before the police that the accused poured kerosene on her and set fire, he was declared hostile to the prosecution by the Public Prosecutor with the permission of the court and was cross-examined. 8. PW4 is residing in the neighbourhood of the accused. On the date of occurrence, while she was sleeping, she heard a hue and cry at about 10.45 p.m. That was on 19.6.1999. When she went out on CRL.A.No.185/05 -13- hearing the sound, she saw the wife of the accused lying in the courtyard of PW6. She asked Sobha, what happened to her. She was told that the burn injury was caused by the falling of a burning lamp. She saw burns on the chest and stomach of Sobha. Some persons poured water on her and later, she was taken to the hospital in an autorickshaw. Since she deviated from her statement before the police regarding a quarrel between Sobha and the accused for non-payment of dowry, she was declared hostile to the prosecution by the Public Prosecutor with the permission of the court and was cross-examined. 9. PW5 is a relative of the accused. He is also residing in the neighbouring house. He stated that Sobha, the wife of the accused died a few years back. She died of burn injuries. Sobha came running to the house of the witness with fire on her clothes. PW5 and his mother came out of their house and went to the courtyard. They poured water on Sobha's body. Other people also came running. Sobha was taken inside their house and she was laid in a cot there. The witness went to call an autorickshaw. Sobha was taken to the hospital by his brother-in-law and others. He did not accompany Sobha to the hospital. He did not ask Sobha about the reason for the burns. His mother asked her. Thereupon Sobha told his mother not to ask anything. When Sobha was asked CRL.A.No.185/05 -14- about the accused, she told them that he has gone for work. The witness disowned his statement before the police that there was a quarrel between the accused and the deceased on the date of occurrence. Therefore, he was declared hostile to the prosecution and was cross- examined. In cross-examination he has stated that the deceased came out crying “Ah! Please come (and help)”. 10. PW6 is the maternal grand mother of PW5. She is also the sister of the father of the accused. She has deposed that on 19.6.1999, Sobha came out of her house, crying 'save me'. She saw Sobha lying down. People poured water on her and put out the fire. She along with another took the injured to the hospital in an autorickshaw. There were burns on the face, chest and hands of Sobha. Initially, Sobha was taken to the nearby hospital and from there she was taken to Pushpagiri Hospital, Thiruvalla. While in the hospital, the doctor asked her about the name and address of the injured. She gave the details, which were noted down by the doctor. The witness has also told the doctor how the burn injury was caused. She stated that she told the doctor that a lamp fell down and as a result the fire occurred. She also stated that when Sobha came running the accused was not there. He has gone for collecting sand. Sobha told her that she set fire by herself. Thereupon, the CRL.A.No.185/05 -15- Prosecutor, with the permission of the court, declared her hostile and cross-examined her. In the cross-examination, she initially admitted that Sobha came running saying that she is being killed. Immediately, the witness corrected and said that Sobha came running, saying 'save me'. Ext.P16, which is an agreement executed by the accused was marked through the said witness. In Ext.P16 the accused admits his previous ill- treatment of the deceased. Going by Ext.P16, it would show that the father of the deceased agreed to pay the balance dowry after the next harvest. 11. PW7 is the father of the accused. He also admits the execution of Ext.P16. When the accused and the deceased quarrelled and were living separately, Ext.P16 was executed, to which the witness is also a party. He identified his signature in that document. He also admits that he put his signature, knowing about the contents of that document. He also identified the signature of his sister PW6 and that of the accused in that document. He further admits that PW8 Krishnan Kutty did the mediation for arriving at that settlement. He heard that Sobha died because a burning kerosene lamp fell on her body and her clothes caught fire. He also deposed that he saw Sobha running with fire on her body. He denied the presence of the accused at the relevant time. Therefore, CRL.A.No.185/05 -16- he was declared hostile to the prosecution by the Public Prosecutor with the permission of the court and was cross-examined. 12. PW8 is a coolie worker. At the relevant time he was the Kadambur Branch Secretary of CPI(M). He knew PW1 and his deceased daughter Sobha. Sobha was married to Suseelan, the accused. He participated in that marriage. To resolve the problems in their marital life, he had interfered. Sobha's father made a complaint to him. Based on that, he talked to Sobha. She told him that for not paying Rs.5000/-, which is the balance amount of dowry, she is being harassed and manhandled by the accused. He came to know that owing to the quarrel between them, Sobha has come to her parental house. Such quarrels took place on three occasions within a period of six months. Based on the complaint of Sobha's father, the witness went to the house of the accused. He talked to the accused and his relatives. Based on that Ext.P16 agreement was executed. He saw Sobha while she was in the hospital. She told him that Suseelan (accused) poured kerosene and set fire to her. She also told him that the said incident happened day before yesterday. He was also told by Sobha that the accused burned her using kerosene for non-payment of the balance dowry amount. The accused has done this to kill her intentionally, told Sobha to him. He was CRL.A.No.185/05 -17- cross-examined extensively by the accused. In the cross-examination, he stated that he did not go to the Koyipram Police Station on that day (the date on which he went to the hospital). He further stated that he has not gone to the Police Station along with PW1. The police questioned him while he was in the hospital. It appears, the same was done on 21.6.1999, submitted PW8. He denied the suggestion of the defence that because of political rivalry towards the accused, who was a member of a trade union affiliated to B.M.S., he was being falsely implicated in this case by PW8, who belongs to CPI(M). On Ext.P16, he was cross- examined extensively. But, he stood by his statement made in the chief examination. 13. PW9 is the witness to Ext.P26 scene mahazar. PW10 is the witness to Ext.P27 mahazar, as per which Exts.P16 and P22 were seized. PW11 is the witness to Ext.P28 mahazar seizing the gold ornaments of the deceased. PW12 is the witness to the inquest report Ext.P29. PW13 was, at the relevant time, the Judicial First Class Magistrate of Thiruvalla. She recorded the dying declaration of Sobha under Section 164 of the Cr.P.C., a copy of which was marked as Ext.P30.