IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 CRL.A.No. 1141 of 2001() ------------------------ SC.116/1998 of I ADDL.ASSISTANT SESSIONS COURT, ERNAKULAM .................... APPELLANT/ACCUSED: -------------------------- SOMAN S/o.KARUNAKARAN, H.No.82, UDAYA COLONY, GANDHINAGAR DESOM, ELAMKULAM VILLAGE. BY ADV. SRI.B.N.SHIVSANKAR RESPONDENT/COMPLAINANT: ----------------------------------- STATE OF KERALA REPRESENTED BY C.I. OF POLICE, CENTRAL POLICE STATION, ERNAKULAM. BY PUBLIC PROSECUTORB SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/02/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.K.BASHEER,J ======================= Crl.Appeal.No.1141 of 2001 ========================== Dated this the 26th day of February, 2008 JUDGMENT This appeal is at the instance of the accused who had been convicted and sentenced under Sections 306 and 498 A I.P.C to undergo rigorous imprisonment for 5 years and 2 years respectively. 2. The prosecution case in brief was that on January 11, 1998, at about 1.15 p.m. Smt.Sheela, wife of the appellant/accused poured Kerosene over her body out of frustration and because of mental and physical torture perpetrated by her husband/accused. At that time, the accused handed over a match box and told her to commit suicide, if she wanted to. Smt. Sheela lit herself up with the match stick. She was immediately taken to the hospital by her relatives and neighbours. Sheela succumbed to the burn injuries on February 10, 1998 while she was undergoing treatment at the Government Hospital, Ernakulam. On the previous day of her death, the Additional Chief Judicial Magistrate, Ernakulam had recorded her dying declaration in which Sheela had stated the Crl.A.No.1141/2001 2 circumstances which lead her to the desperate act. She also stated that she had set herself ablaze with the match box given by her husband. The case was investigated by the Circle Inspector of Police, Central Police Station, Ernakulam. 3. The prosecution examined PWs.1 to 12 and Exts.P1 to P14 and MO1 and MO2 were marked on its side. Though no witnesses were examined on the side of the defence Exts.D1 and D1(a) were marked. 4. The learned Assistant Sessions Judge, after an elaborate consideration of the oral and documentary evidence on record, found that the prosecution had successfully established the charge levelled against the accused and accordingly he was convicted and sentenced, as stated earlier. 5. PW1, mother of deceased Sheela, deposed before the court that her daughter was a victim of torture and harassment at the hands of her husband. The deceased was living with the accused and her two minor daughters in the adjoining “line room” to that of PW1 in a colony situated very near to the railway line and K.S.R.T.C. Garage in Cochin city. PW1 stated that on the previous day of the unfortunate incident, the husband Crl.A.No.1141/2001 3 and wife had quarreled. On the day of the incident, PW1 had given Rs.25/- to her daughter Sheela in the morning. Sheela had purchased some provisions and prepared food. At about 1.30.p.m, the accused had come to the house. When Sheela served food to the accused, he took it and dumped it in front of the dog. Sheela asked her husband why he had done so, especially since even the children had not eaten their meal. PW1 stated that she heard the sound of slapping. At that time, PW1 went out of the house since she could not bear the quarrel between her daughter and son-in-law. She went to the residence of her daughter,Usha, who was also residing nearby. After sometime somebody came and informed her that her daughter Sheela had lit herself up after pouring kerosene over her body. She told the informant that she cannot bear it and therefore she was not prepared to go. She further stated that she did not have any money with her to take her daughter to the hospital. At that time, the eldest daughter of Sheela came running and called her. She went along with the child to the hospital. PW3 Smt.Omana, the neighbour of Sheela was also in the hospital at that time. PW1 found that Sheela had sustained burn injuries on her face, Crl.A.No.1141/2001 4 below the neck and above the knees. She lodged a complaint in this connection before the Commissioner of Police. She identified MO1 and MO2, the burnt Nighty and brassier worn by deceased Sheela. In cross examination, PW1 stated that she had got fed up with the constant fight between the accused and Sheela, who were living in the adjoining room at the back side of her line room tenement in the colony. 6. PW2, the daughter of Sheela was aged 17 at the time when she was examined in the court in the year 2000. She deposed in her chief examination that her mother had poured kerosene over her body because of the quarrel with her father (accused). When she came back from her Aunt's (mother's youngest sister) house after watching movie on the T.V., she found that her parents were quarrelling with each other. She further stated that, she saw her father filling ganja in a beedi. At that time, her mother was sitting beside him weeping. When she asked her father what was happening, he did not say anything. Her mother told her that father had dumped the meal in front of the dog. PW2 stated that she got out of the house and went to her aunt's house. Shortly, thereafter she heard her Crl.A.No.1141/2001 5 mother's cry. She saw that her mother was doused in kerosene when she came out of the house. PW2 further stated that at that time she called PW3, Smt.Omana who was their neighbour. PW3 came there and told Sheela not to lit herself. At that time, her father was in the house. Her mother went to the rear side of the house. Her father lit a match stick and took it near to the body of her mother. PW2 stated that she interfered and took away the match box from her father. Then another neighbour, Smt.Vimala, came to the house. Omana and Vimala told the deceased to go and take a bath. Sheela went inside the house saying that she wanted to take rest. She locked the door from inside. Her father was standing on the western side of the house near the window. Shortly thereafter her mother came out of the house with flames on her body. Omana and Vimala immediately poured water over her mother's body. At that time PW4 also came to the scene and put wet sacks and clothes over her body. Her aunt (Smt.Manju) and Vimala took her mother to hospital. Even at that time her father was sitting in the house. PW2 asserted that her mother had lit herself because of the quarrel with her father. She further stated that she went to Usha aunt's Crl.A.No.1141/2001 6 house and called her grandmother(PW1) and went to the hospital along with her. PW2, in cross examination, stated that she would not like her father to go to prison. But this innocent girl further stated that her father had shown the lit match stick to her mother as a joke. 7. PW3, the neighbour of the victim also spoke about the quarrel between deceased Sheela and the accused. On the day of the unfortunate incident when PW3 had gone to the residence of Sheela to get some curry for lunch, she saw that the couple was quarrelling. Therefore she came back to her house without asking for curry. Shortly thereafter PW2 the daughter of Sheela came running to her house and informed that Sheela had poured kerosene over her body. When PW3 reached the house of the deceased she found her standing on the western side of the house. Accused was also there. She asked Sheela to go and take a bath and went out. When she reached the lane outside the house she saw Sheela coming out of the house with flames on her body. She poured water over Sheela's body. PW4 also came to the scene and tried to douse the fire with wet sacks and clothes. Then the accused walked out of the house to the road. Crl.A.No.1141/2001 7 She and Manju took Sheela to Medical Trust Hospital. On all material aspects, this witness had supported the prosecution case. 8. PW4, who is also a resident of the colony deposed before the court that he came to the residence of the victim when he heard some noise at about 1.20.p.m. He saw Sheela in flames when he reached there. Some other neighbours of Sheela, apart from the accused, were also there. This witness also stated that Sheela had poured kerosene over her body because of the quarrel with the accused. He was also a witness to Ext.P2 Scene mahazer. 9. The other material witnesses on the side of the prosecution were the three doctors, one of whom (PW7) conducted the post mortem. PW8 had examined deceased Sheela at Medical Trust Hospital immediately after she sustained the burn injuries. PW9 had issued Ext.P8, wound certificate after examining her at the Government hospital, Ernakulam where the deceased was admitted after her discharge from the Medical Trust Hospital. Crl.A.No.1141/2001 8 10. PW11, the Additional Chief Judicial Magistrate, Ernakulam had recorded Ext.P10 dying declaration of the victim and PW12 had conducted the investigation and laid the charge sheet. 11. Testimonies of PWs.1 to 4 did clearly reveal that the marital relationship between the deceased woman and her husband (accused) had not been smooth or cordial at all, to say the least. PW1 the mother of the deceased who had been living in the adjoining room in the colony had categorically asserted that the accused had been harassing and torturing the deceased constantly. She had also stated that even on the day of the unfortunate incident she had given Rs.25 to her daughter to purchase some provisions to cook food for the day. The testimony of PW2 the minor daughter of the deceased woman is quite revealing and disturbing. The young girl stated that her mother died because of the harassment suffered at the hands of her father. It had also come out from the evidence of PW2 that at the time she came to the house after watching the T.V from her Aunt's house at about 1.30p.m. she saw her father filling Ganja in a beedi. Her mother was sitting near her father Crl.A.No.1141/2001 9 weeping. She was informed by her mother that father had dumped the meals served to him in front of the dog. PW1, mother of the deceased had heard her daughter asking her husband why had he dumped the food in front of the dog even when the children had not eaten the meal. 12. It is true that PW2 had deviated from her version given to the police to some extent, when she was examined in the court. She had innocently stated before the court that she did not like her father to be put behind the bars. Even those small variations or contradiction, if one may call them so, would not, in my view, have any adverse impact on the prosecution case. The evidence of PW2 will undoubtedly show that deceased Sheela was forced to douse herself in kerosene and commit suicide because of the unbearable harassment at the hands of her husband. 13. The evidence of PW3, the neighbour of the deceased woman will also show that the accused had been quarrelling with his wife all the time. But most crucial of all revelations made about the character of the accused was the statement made by PW2, his own daughter, that he was found filling ganja in a bidi Crl.A.No.1141/2001 10 when she came back home just before the unfortunate incident. Similarly, the statement made by PW2 that the accused had lit a match stick and taken it near to the body of Sheela after she had poured kerosene over her body also clearly revealed the mindset of the accused. Though the young girl tried to explain away the conduct of her father by saying that he had done so as a joke, I find no reason to disbelieve PW2 because of some contradictions in her evidence. According to me the testimony of PW2 has become more creditworthy and reliable because of the natural and innocent utterances. It had also come out from the evidence of PW1 to 4 that the accused had been showing an indifferent and callous attitude towards his wife when she doused herself in kerosene. Apparently the accused did not show any concern or anxiety. This conduct of the accused also showed that he was least bothered about his wife who had been his partner in life for more than 15 years. 14. One main contention taken up by the defence before the court below was that the Additional Chief Judicial Magistrate who had recorded the dying declaration of the victim had not meticulously followed the procedure prescribed for recording Crl.A.No.1141/2001 11 such statements. It is true that the learned Magistrate had conceded that she had not recorded the physical or mental state of the deceased woman when she visited the hospital to record the statement. Similarly, she had also not indicated in the statement as to whether the victim was in a proper mental condition to give such a statement. She had also not ascertained the mental and physical status of the victim from the doctor who was in charge of the patient. But it had come out in evidence that the doctor was not available in the ward when the Magistrate visited the hospital. A perusal of Ext.P10, dying declaration undoubtedly shows that the unfortunate victim had conveyed what she wanted to, in unequivocal terms. Though not in so many words, she had stated what had transpired on the fateful day. She had stated that she had doused herself in kerosene. Her husband had dropped a match box near her. She took the match box and lit herself up to put an end to all miseries. Her husband told her “die if you want”. In my view, nothing more is required to hold the accused guilty of the offence punishable under Section 306 IPC. I do not find any material illegality or irregularity in the procedure followed by Crl.A.No.1141/2001 12 the learned Magistrate while recording Ext.P10, dying declaration. 15. The other question that may have to be considered is whether there is any evidence to prove direct involvement of the accused leading to the suicide. If we peruse the depositions of PW3 and 4 carefully, it can be undoubtedly seen that the accused had in fact prompted or abetted the innocent victim to commit suicide. It is true that none of these witnesses had spoken with regard to the specific overt act indicating abetment. But PW2, daughter of the accused had stated that after her mother got inside the house shortly after she doused herself in kerosene, her father had gone to the western side of the house. She stated further there is a small window on that side. PW2 stated that shortly thereafter, her mother came out of the house in flames. In continuation of the above version, PW2 had further stated that her mother had committed suicide only because of the quarrel between her father and mother. The evidence of PWs.1 to 3 will clinchingly show that the accused had in fact a crucial role in abetting the commission of suicide. The evidence on record has convincingly established the offence under Section 498 A I.P.C. Crl.A.No.1141/2001 13 Having heard learned counsel for the parties and having perused the entire materials on record, particularly the oral testimonies of the material witnesses, namely, PWs.1 to 4 and 11 I do not find any reason to interfere with the order of conviction and sentence passed by the court below. The prosecution, in my view, had successfully established the charge levelled against the accused. The appellant does not deserve any sympathy. All the contentions raised by him before this court are totally untenable. There is no merit in this appeal. It is accordingly dismissed. A.K.BASHEER,JUDGE dvs