IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 CRL.A.No. 265 of 2006(C) --------- ------------------------ SC.712/2001 of I ADDL. SESSIONS COURT, THIRUVANATHAPURAM CP.42/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II,NEYYATTINKARA .................... APPELLANT(S)/ACCUSED: -------------------- SURENDRAN @ KOCHUSURENDRAN, S/O.THANKAPPAN, CONVICT NO.9881, CENTRAL PRISON, TRIVANDRUM - 695 012. BY ADV. SMT.SANGEETHA LAKSHMANA RESPONDENT(S): ------------------------ THE STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR. BY PUBLIC PROSECUTOR SRI. P.N. SUKUMARAN. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ Crl.Appeal No.265 of 2006 ------------------------------ Dated this, the 26th day of November, 2009 JUDGMENT Balakrishnan Nair, J. The appellant was the accused in S.C.No.712 of 2009 on the files of the Court of First Additional Sessions Judge, Thiruvananthapuram. He was charge sheeted by the Circle Inspector of Police, Parassala for the offences punishable under Sections 302 and 436 of the Indian Penal Code. The case of the prosecution in brief is as follows: The deceased Omana is the daughter of PWs.1 and 3. The appellant - Surendran is her husband. Two children are born out of the marriage. The appellant was in the habit of drinking and physically torturing Omana. On 20.2.1999, there was an attempt to pour kerosene on Omana and set fire on her, but she escaped. On 21.2.1999, at about 2 p.m., the appellant poured kerosene while she was inside their house, which is in fact a hut. The appellant tied his wife - Omana to a cot using her Sari, thereafter poured kerosene and set fire to Crl.App. No.265 of 2006 - 2 - her. This was witnessed by the two children. One of them was PW.2. The victim ran out of the house crying, with about 80 to 90 per cent burns. The house was also burned down. PW.7 and others who came there, hearing the cries, took the injured to Neyyattinkara Taluk Hospital. From there, she was referred to the Medical College Hospital, Thiruvananthapuram. On the same day at about 9.10 p.m., the injured breathed her last. PW.1, the father of the deceased, who came to know of the incident from others lodged Ext.P1 F.I. statement, based on which Ext.P1(a) F.I.R. was registered by PW.10, Head Constable. PW.12, the Circle Inspector of Police took over the investigation. He conducted the inquest and prepared Ext.P6 inquest report, in the presence of the witnesses. He also prepared the scene mahazar, Ext.P7. The body was sent for autopsy, which was conducted by PW.5, the forensic surgeon. He issued Ext.P3 post mortem certificate. Injury No.1 was the burn injury. As per Ext.P3 and the deposition of PW.5, the cause of death was injury No.1. The doctor also produced Ext.P4 post mortem notes kept by her. PW.6, the Crl.App. No.265 of 2006 - 3 - investigating officer, questioned the witnesses, arrested the accused, caused the preparation of scene plan, sent the material objects collected from the scene of occurrence for chemical analysis. He completed the investigation and laid the charge before the Judicial First Class Magistrate's Court - II, Neyyattinkara. The learned Magistrate after completing the formalities, committed the case for trial to the Sessions Court as the offences disclosed were exclusively triable by a Court of Sessions. The learned Sessions Judge made over the case to the First Additional Sessions Judge, Thiruvananthapuram. 2. The appellant pleaded not guilty to the charge framed against him by the trial court. The prosecution to prove its case examined PWs.1 to 12, marked Exts.P1 to P12 and produced MOs.1 to 4. After the closure of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the circumstances that appeared against him in the evidence and claimed that he was innocent. The learned Sessions Judge, after hearing both sides, found Crl.App. No.265 of 2006 - 4 - the appellant guilty of the offences under Section 302 and 436 of the Indian Penal Code. The appellant was sentenced to undergo imprisonment for life for the offence under section 302 I.P.C. and to pay a fine of Rs.15,000/-(Rupees Fifteen Thousand) and in default to suffer rigorous imprisonment for a period of two years. For the offence under Section 436 I.P.C., he was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.10,000/-(Rupees Ten Thousand) and in default to undergo rigorous imprisonment for one year. It was also ordered that if the fine amount is paid or recovered, Rs.7,500/- should be paid to the parents of the victim, PWs.1 and 3 and Rs.10,000/- shall be paid to PW.2, the younger daughter of the deceased. Feeling aggrieved by the above conviction and sentence, the appellant has preferred this Criminal Appeal. 2. We heard the learned counsel for the appellant, Smt.Sangeetha Lakshmana. She took us through the depositions of the witnesses and the documents on record. It Crl.App. No.265 of 2006 - 5 - is pointed out that the conviction has been entered against the appellant mainly based on the evidence of PW.2, a child witness. She was only aged six, at the time of the incident. She was a tutored witness, who gave evidence as desired by the elders. So, it is quite unsafe to sustain the conviction. The appellant is entitled to get the benefit of doubt, it is submitted. The learned Public Prosecutor, Sri.P.N. Sukumaran, on the other hand, fully supported the judgment under appeal. The relevant portion of the judgment dealing with the evidence of PW.2 has been read over to us. The learned Public Prosecutor submitted that the learned Sessions Judge has given sound reasons for acting upon the evidence of PW.2 and the same does not call for any interference. 3. In this case, we notice that PWs.1, 3 and 6 have deposed that the marital life of Omana was unhappy and the appellant was physically abusing and harassing her. PW.2 was present along with her brother at the scene, at the time of the incident. She along with her brother was staying with her parents at Plamoottukada. She has stated that, her Crl.App. No.265 of 2006 - 6 - mother died in an incident which happened on a Sunday. The date was initially given as 29.2.1999, and the same was corrected as 21.2.1999, based on a leading question put by the public prosecutor. The incident took place at 4.30 p.m.. The place of occurrence was their house. In the morning, at about 11 a.m., she and her brother were taken to a nearby temple festival by their father, the appellant. He purchased some articles for them. After some time, they were sent back in an autorickshaw. They came back by 12.15 in the noon. Later, between 4 and 4.15 p.m., the appellant came home after taking toddy. At that time, PW.2, her brother and their mother alone were in the house. The appellant came and started beating the mother. The sari worn by the mother was tied to a cot and thereafter, the appellant poured kerosene over the head of her mother. Then he lit a match and set fire to the sari worn by her mother. Thereupon, her mother rushed out, but by that time she was engulfed by fire. The house also caught fire. Chandran, a person residing in the neighbourhood and PW.7, another neighbour, came there and Crl.App. No.265 of 2006 - 7 - took the injured to the hospital. At that time, her father, the appellant was standing outside the house. The house got fire because of her father's action. The witness repeated, while the mother rushed out of the house, her father was standing there. The mother was completely burnt. The entire house was also burned down. The household articles were also burnt. PW.2 and her brother went to the house of PW.3, their maternal grandmother. They reached there by 5 p.m. There was frequent quarrel in their house. The household expenses were met by their grandmother, PW.3. The appellant used to pick up quarrel. On the previous day of the incident also, her father poured kerosene on mother. The mother ran away at that time. When the fire was engulfing their mother, they cried out that their mother is being killed. But their father remained silent. PW.2 further submitted that the police questioned her. She also stated that her father sustained burn injuries on his hand. Though the witness was cross examined extensively, we find that nothing has been brought out to shake the veracity of her evidence. Though PW.7 has Crl.App. No.265 of 2006 - 8 - turned hostile to the prosecution, his evidence also supports the case of the prosecution. It was he who put out the fire on the body of the victim by covering her with a cloth. It was he, who took the initiative to call a vehicle and took the injured to the hospital. The case of the defence is that, it was an accidental fire by the fall of a kerosene lamp. If it was an accidental fall of kerosene lamp, the victim would not have suffered 80-90% burn injury. If it was an accident, we are sure, the husband would have taken action to put out the fire and to take her to hospital. There was no such attempt from the part of the appellant. So, the above conduct of the appellant, coupled with the version of PW.7, we are inclined to believe the version of PW.2, regarding the incident. Once the theory of accident is ruled out, it is to be found the death to be homicidal. We find no reason for PW.2 to falsely implicate her father and to spare the real culprit. The only person available there who could have done this, was the appellant only. So, the circumstances brought out in evidence also fully support the version of PW.2. Crl.App. No.265 of 2006 - 9 - 4. It is not necessary to go into other materials and evidence on record. It is common case that the victim suffered 80-90% burn injury, she was taken to Medical College Hospital and there she breathed her last. The only point in dispute is, whether the burn injury was suffered by accident or by design and if it was by design, who did it. We have found an answer to that by believing the version of PW.2. In view of the above position, it is unnecessary to refer to the evidence of other witnesses and the materials on record. In the result, the conviction and sentence imposed on the appellant is upheld and the Criminal Appeal is dismissed as devoid of any merit. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)