IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 CRL.A.No. 1622 of 2005() ------------------------ SC.303/2000 of ADDL. DISTRICT & SESSIONS (ADHOC) JUDGE, FAST TRACK COURT II, PATHANAMTHITTA CP.31/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT-I, PATHANAMTHITTA .................... APPELLANT(S): ACCUSED. ------------------------ RAMACHANDRANA NAIR, S/O.NARAYANA KURUPU, C.NO.8608, CENTRAL PRISON, THIRUVANANTHAPURAM 12. BY ADV. GRASHIOUS KURIAKOSE RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2009, THE COURT ON 18/12/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.Q.BARKATH ALI, JJ. - - - - - - - - - - - - - - - - - - - - - Crl.Appeal No.1622 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of December, 2009 JUDGMENT Barkath Ali, J. In this appeal the accused in Sessions Case No.303/2000 of Additional District and Sessions (Adhoc) Judge, Fast Track Court II, Pathanamthitta challenges the judgment in the said case dated July 15, 2004 convicting the appellant under Section 302 of IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 10,000/- and in default, to undergo simple imprisonment for one year. 2. The case of the prosecution as shaped in evidence before the lower court in brief as follows : The accused Sri.Ramachandran Nair is the husband of deceased Mohanakumari. They were residing in house bearing door No. VIII/254 of Pathanamthitta Municipality. At the time of marriage, 20 cents of property was given to him. After selling that property the present property was purchased which is Kanjiramnil kunnathil Veedu. PW1 and CW2 are the daughter and son of accused and deceased. Crl.Appeal No.1622/05 Page numbers Accused used to ill treat the deceased for the purpose of selling this property. He is a drunkard used to quarrel with the deceased. On June 17, 1999 at about 5 p.m. when they were in the kitchen room of the house, accused quarrelled with the deceased regarding the selling of the property. He beat the deceased on her head with coconut scrapper (chirava) and beat on her legs with a wooden piece. Thereafter, he took a bottle of kerosene kept there, poured it over the deceased and set her ablaze with a match. Deceased sustained severe burns and was admitted in the General Hospital, Pathanamthitta. 3. PW10 , the then Assistant Surgeon , Pathanamthitta who treated the deceased Mohanakumari on 17-06-1999 at 6.10 AM, issued the wound certificate Ext.P12. Accused has suffered second degree burns involving the upper part of the body. PW11, the then Head Constable of Pathanamthitta Police Station on receipt of intimation from the hospital proceeded to the General Hospital, Pathanamthitta and recorded the statement of the deceased Ext.P13, the FIS and registered the FIR Ext.P14 under Section 309 of IPC. Subsequently, Mohanakumari was referred to Medical College, Thiruvananthapuram Crl.Appeal No.1622/05 Page numbers for better treatment. But, she succumbed to the burn injuries, while undergoing treatment at Medical College Hospital, Thiruvananthapuram at 10.30 A.M. on 21-07-1999. PW13, the then A.S.I. of Pathanamthitta Police Station took over investigation. He proceeded to the spot and prepared the scene mahazar Ext.P6 and got it attested by the witness. He recovered Exts.P2, P3 and P17 letters allegedly written by the deceased to PW3 her mother which shows that accused used to ill treat her. PW14 examined the dead body of deceased and prepared the inquest report Ext.P7 in the presence of witness. PW15 is Circle Inspector of Police who laid the charge before the Committal court. PW16 is the Judicial First Class Magistrate II, Thiruvananthapuram who recorded the dying declaration of the deceased Ext.P25. 4. When the accused appeared before the committal court, copies of documents relied on by the prosecution were furnished to him. As the offence punishable under Section 302 of IPC is exclusively triable by the Court of Sessions, the case was committed to Sessions Court, Pathanamthitta from where it was made over to the trial Crl.Appeal No.1622/05 Page numbers court for trial and disposal. 5. On appearance before the trial court, accused pleaded not guilty to a charge framed against him under Section 302 of IPC. PWs 1 to 16 were examined and Exts.P1 to P25 and MOs 1 and 2 were marked on the side of the prosecution. When questioned under Section 313 Cr.P.C. by the trial court, the accused denied having committed any offence. DWs 1 to 3 were examined and Ext.D1 was marked on his side. DW1 is the Doctor who examined the deceased at Govt. Hospital, Pathanamthitta. Ext.D1 is the original case sheet. DWs 2 and 3 are the neighbours of accused and deceased. 6. The learned Sessions Judge on an appreciation of evidence found the accused guilty of the offence punishable under Section 302 of IPC, convicted him thereunder and sentenced him as aforesaid. The accused challenges his conviction and sentence in this appeal. 7. Heard the counsel for appellant and the learned Public Prosecutor. 8. The learned counsel for the appellant arguing the appeal submitted that the Sessions Judge went wrong in relying on Ext.P25, Crl.Appeal No.1622/05 Page numbers the dying declaration of the accused as she has specifically stated in Ext.P1, the FIS and also stated to PW1, her daughter that she herself set fire to her and committed suicide and that therefore lower court should have either acquitted the accused or at least convicted him only under Sections 306 and 498 A of IPC. 9. The learned Public Prosecutor on the other hand supported the judgment of the lower court. 10. The following points arise for consideration : 1) Whether the lower court is right in convicting the accused under Section 302 of IPC based on Ext.P25 , the dying declaration of deceased ? 2) Whether the conviction of accused under Section 302 of IPC by the lower court can be sustained ? 3) Whether the sentence imposed is sustainable ? Point Nos 1 and 2 11. The fact that deceased sustained burn injuries in the Crl.Appeal No.1622/05 Page numbers evening of June 17, 1999 from her house where she resides with her husband, the accused and the two children PW1 and CW2 and that while undergoing treatment at Medical College Hospital, Thiruvananthapuram she succumbed to the injuries sustained on July 21, 1999 at 9.05 p.m. is not seriously disputed which is also proved by the evidence adduced on the side of prosecution especially by the evidence of PWs 1 to PW5, the daughter and other relations of accused and PW10 the then Assistant Surgeon of General Hospital, Pathanamthitta who examined the deceased and issued the wound certificate Ext.P12 and PW12, the then Assistant Professor of Forensic Medicine, Medical College, Thiruvananthapuram who conducted postmortem examination on the dead body of deceased and issued the postmortem report Ext.P15. 12. The case of the prosecution is that accused used to ill treat the deceased with a view to compel her to sell the house, for which she did not yield , that on June 17, 1999 at about 5 P.M. he came to the house drunk quarrelled with the deceased, beat her on her head with a coconut scrapper, beat her on her legs with a wooden piece and Crl.Appeal No.1622/05 Page numbers thereafter dowsed her with kerosene and set fire with a match as a result of which she sustained severe burn injuries described in Ext.P12 wound certificate and consequently she died while undergoing treatment in the hospital and that thereby accused committed the murder of his wife which is an offence punishable under Section 302 of IPC. 13. Prosecution relied mainly on Ext.P25 the dying declaration of the deceased recorded by PW16, the JFCM II, Thiruvananthapuram. Before considering the validity and reliability of Ext.P25, we shall consider the evidence of the witnesses in this case. 14. PW1 is the daughter of the accused. She turned hostile and did not support the prosecution. When cross examined by the PP with the permission of court, she denied having stated to the Investigating Officer that accused hit her mother on her head with a coconut scrapper and beat on her legs with wooden piece. According to her deceased herself poured kerosene over her body and set fire herself. As she is a hostile witness, the lower court is perfectly justified in rejecting her evidence. Further on going through her evidence, we are convinced Crl.Appeal No.1622/05 Page numbers that she was trying to save her father. 15. PW2 is the mother of the deceased. She would say that while she visited the deceased in the hospital, she did not disclose anything. She handed over to Police Ext.P2, P3 and P17 letters sent by the deceased to her. PW2 admitted those letters written by the deceased, though PW1 denied having written those letters at the instance of her mother. Those letters clearly show that accused used to harass the deceased and that he is addicted to alcohol. 16. PW3 is the elder sister of the deceased who was looking after the deceased at the hospital. She would say that deceased told her that it was her husband who poured kerosene over her and set fire. She was elaborately cross examined by the defence counsel, but was not able to shake her evidence. She would say that deceased was conscious at that time. On going through her evidence, we find no reason to disbelieve her evidence. Her evidence lends support to the case of the prosecution that it was the accused who poured kerosene and set fire to her. Her version also supports the dying declaration given by the deceased to the Magistrate. She has categorically stated Crl.Appeal No.1622/05 Page numbers that at the time when Magistrate came for recording dying declaration also she was looking after the deceased and that deceased was conscious. She has emphatically denied the suggestion that it was to get the insurance claim at the instance of PW3 deceased gave such a statement. Therefore, the lower court is justified in believing her evidence. 17. PW4 is the wife of the elder brother of deceased. She turned hostile and did not support prosecution. PW5 is an attestor to the scene mahazar- Ext.P6. PW6 is an attestor to Ext.P7 inquest report. PW7 is the Secretary of local NSS Karayogam who proved Ext.P8, letter relating to the marriage of deceased and accused. PW8 is a Police Constable who is an attestor to Ext.P9 and P10 mahazars by which Exts.P2, P3 and P17 letters were recovered . PW9 is the Village Officer who prepared Ext.P11, the plan of the scene of incident. 18. PW10 is the Assistant Surgeon of General Hospital, Pathanamthitta . He treated the deceased on 17-06-1999 at 6.10 PM and issued the wound certificate Ext.P12. He noticed second degree burns about 75% of the body surface involving the upper half. The Crl.Appeal No.1622/05 Page numbers alleged cause of injury noted in Ext.P12 was that the deceased poured kerosene on herself and set fire. PW10 testified that the patient herself stated so. That being so, the said statement of the deceased to the doctor can be treated as a dying declaration as envisaged under Section 32(1) of Evidence Act. The fact that the deceased told PW10 as stated above is not seriously disputed. The evidence of PW10 proved Ext.P12. 19. PW11 is the Head Constable who recorded Ext.P13 the FIS and registered the FIR Ext.P13(a) on 18-06-1999. The deceased had stated to him that on 17-06-1999 at about 5 PM accused came to the house fully drunk, that accused wanted the deceased to quit the house with her children, that she refused and that she became discontended and poured kerosene by herself over her head and set fire and that accused and others attempted to put out the fire. On the basis of Ext.P1, PW11 registered the case under Section 309 of IPC. As the deceased died subsequently and as in Ext.P1 the deceased had stated about the cause of her death or the circumstances of the transaction which resulted in her death, it can be considered as a dying Crl.Appeal No.1622/05 Page numbers declaration. The fact that the deceased gave such a statement is not seriously disputed. The evidence of PW11 proves Exts.P13 and P13(a). 20. PW12 is the then Assistant Professor of Forensic Medicine, Medical College, Thiruvananthapuram who conducted postmortem on the dead body of deceased Mohanakumari and issued the postmortem certificate Ext.P15. She noticed ante mortem injuries as such as burns involving the lower half of face, ears, lower border of nose neck front and side of trunk, back of trunk, buttocks and inner aspects of right elbow, both hands and inner aspect of left elbow etc. According to her death was due to burns involving about 55% of body surface. The evidence of PW12 proves that the deceased died of burn injuries which is not seriously disputed. PW13 is the ASI who recovered letters Exts.P2 and P3 and P17. Exts.P16 and P18 are the property lists prepared by him. MO1 is the kerosene socked soil collected from the kitchen of the house of the deceased and MO2 is the kerosene bottle recovered by him and produced before court under Ext.P19. Ext.P20 is the report to court adding Sections 498 A and 307 of IPC. PW14 is the Crl.Appeal No.1622/05 Page numbers Sub Inspector who prepared Ext.P7 inquest report. PW15 is the Circle Inspector of Police who laid the charge. PW16 is the Judicial First Class Magistrate II, Thiruvananthapuram who recorded the dying declaration of deceased Ext.P25. 21. From the evidence discussed above, it is seen that the prosecution relied mainly on the dying declaration recorded by PW16 wherein deceased has stated that it was her husband who poured kerosene over her and set fire. The lower court has also relied on the same for coming to the conclusion that the accused has committed the murder of deceased Mohanakumari. There are about 5 dying declarations in this case. First one is Ext.P13 , the FI statement recorded by PW11, the Head Constable wherein deceased had stated that she herself poured kerosene over her and set fire. The second dying declaration is the oral statement made to her daughter PW1 stating that it was the deceased, who poured kerosene over her and set fire. The third dying declaration is the statement made by the deceased to PW10 , the doctor who treated her in the General Hospital, Pathanamthitta. There also the deceased has stated that it was herself Crl.Appeal No.1622/05 Page numbers who poured kerosene over her and set fire. The fourth dying declaration is the statement made by her to PW3 her elder sister to whom she has confessed that it was her husband who poured kerosene over her and set fire. Fifth and last dying declaration is given by the deceased to the Magistrate as Ext.P25 implicating her husband. 22. The principle behind the acceptability of dying declaration was considered by the Apex Court in Sher Singh and another v. State of Punjab ( 2008(4) Supreme Court Cases 265) wherein it has been held thus : “Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of a dying declaration. Since the accused has no power of cross-examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its Crl.Appeal No.1622/05 Page numbers truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the Crl.Appeal No.1622/05 Page numbers statement without there being the doctor's opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise.” 23. The Apex Court in Vikas and others v. State of Maharashtra ( 2008(2) SCC 516) held that when there are multiple dying declarations, the one recorded by the Magistrate should be preferred. In the said decision, it was held as follows : “ One of the principles formulated by this Court in Khushal Rao v. State of Bombay ( AIR 1958 SC 22) was that where a dying declaration is recorded by a competent Magistrate, it would stand on a “much higher footing”. We are in respectful agreement with the above view. In our judgment, this is also based on ordinary course of human conduct. A competent Magistrate has no axe to Crl.Appeal No.1622/05 Page numbers grind against the person named in the dying declaration of the victim and in absence of circumstances showing anything to the contrary, he should not be disbelieved by the court. In Ravi Chander v. State of Punjab ( 1998(9) SCC 303) the accused were prosecuted for offences punishable under Sections 498-A, 302 , 304-B read with Section 34 IPC. Dying declaration of the bride was recorded. Veracity of the said declaration was questioned by the accused. Placing reliance mainly on the dying declaration recorded by the Executive Magistrate, the trial court convicted the accused and the High Court confirmed the conviction. The aggrieved accused approached this Court. The Court noted that though the dying declaration recorded by the Executive Magistrate was sent to the investigating officer after a fortnight, the genuineness of the dying declaration could not Crl.Appeal No.1622/05 Page numbers be doubted. It was observed that in the first dying declaration said to have been recorded by the investigating officer, death was shown to be accidental. But it was held that the second dying declaration before the Executive Magistrate was reliable. It was further observed that in absence of any circumstance or material on record to establish that the Executive Magistrate had any animus against the person or was in any way interested in fabricating the dying declaration, it ought to be accepted. The conviction was accordingly upheld. Harjit Kaur v. State of Punjab (1999(6)SCC 545) was another case of bride burning. There dying declaration was recorded by the Sub-Divisional Magistrate, the genuineness of which was challenged inter alia on the ground that there was an agitation by the relatives of the deceased and the declaration was recorded by the Sub-Divisional Magistrate Crl.Appeal No.1622/05 Page numbers under pressure. The Court, however, held that the Sub-Divisional Magistrate being independent witness holding high position, had no reason to do anything which was not proper. It was, therefore, held that genuineness of dying declaration could not be doubted and conviction recorded on that basis could not be faulted.” 24. In the light of the principles laid down in the above decision, we shall consider whether the lower court is justified in accepting Ext.P25 dying declaration made by the deceased before the Magistrate and rejecting the other dying declarations. 25. It is not disputed that PW16, the Magistrate has recorded the dying declarations correctly. He has also testified that deceased was fully conscious and was capable of giving statement. He would testify that before recording the statement, he consulted the duty doctor in the ward regarding the mental condition of the patient and got satisfied that she is in a fit state of mind to give statement and that at the time of recording the statement, the Magistrate and his peon were Crl.Appeal No.1622/05 Page numbers alone present near the deceased. He has also talked to deceased about the proposal to record her statement and satisfied that the deceased understood the same. Dying declaration was recorded in a question and answer form. When the Magistrate asked whether the deceased has disclosed the real facts to the police, the answer was 'No'. She stated that her husband threatened her that in case the real facts were disclosed, all the three would be killed and it has only the price of a cigarette. She also stated that as she was before the Magistrate, she need not fear any one. She has given a detailed statement regarding the occurrence. She has also stated that accused took out a coconut scrapper from the kitchen and beat her on her head and also beat her with a fire wood piece and that when the fire spread, she jumped outside the house upon which the neighbours came running and poured water on her and took her to the hospital. The reason for setting her on fire was also stated that if herself and her children were killed, the plot and building can be taken by the accused. 26. Ext.P25 contains matters which were in the exclusive knowledge of the deceased only. She had told the Magistrate the age Crl.Appeal No.1622/05 Page numbers of her children, standards in which they are studying , the place where the kerosene bottle was kept, the measurement of her land at Adoor sold for the purchase of the house and plot at Pathanamthitta. On going through Ext.P25 and the evidence of PW15, we are convinced that the dying declaration given by the deceased to PW16 was voluntary and that is the true and natural version of the incident given by the deceased. This dying declaration is corroborated by the evidence of PW3 who testified that the deceased told her that it was the accused who poured kerosene over her and set her ablaze. 27. The main argument advanced by the defence counsel was that the deceased had stated in Ext.P13 , the FI statement and to her daughter PW1 and to the Doctor PW10 that it was herself who poured kerosene over her body and set her ablaze and that she gave a different version before the Magistrate only because she had an LIC policy and to claim that amount. 28. There is no substance in the above contention. It is difficult to believe that to claim LIC policy, the deceased would have implicated her husband falsely. Further if she wanted to claim such a Crl.Appeal No.1622/05 Page numbers benefit for her children, she would not have told PW3 about her husband setting fire to her. There is no material to show that the dying declaration made by her to the Magistrate was a result of tutoring or prompting. In Ext.P25 the reason for not implicating the accused in Ext.P13 FI statement and to her daughter -PW1 is clearly explained by the deceased that accused has threatened her that he will burn all the three of them and it has only the price of a cigarette which appears to be natural. It is clear from the above that while she was giving FI statement Ext.P13 and telling her daughter and the