IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 CRL.A.No. 998 of 2007() ----------------------- SC.49/2006 of II ADDL.SESSIONS COURT, ERNAKULAM .................... APPELLANT(S): APPELLANT/ACCUSD ---------------------- JOSEPH SHERIN @ SHERIN, S/O.SEBASTIAN, C.NO.5530, CNETRAL PRISON, VIYYUR. VADAKKEL VEETTIL, CC.XI/1052(B), ST.JOHN PATTOM KARA, FORT KOCHI VILLAGE. BY ADV. VANI.P[STATE BRIEF] RESPONDENT(S): COMPLAINANT ----------------------- STATE, REPRESENTED BY ASST.COMMISSIONER OF POLICE, MATTANCHERY CRIME NO.214/05, FORT KOCHI POLICE STATION. BY PUBLIC PROSECUTOR SRI.P.P.GIKKU JACOB. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. ------------------------------- Crl. Appeal No. 998 of 2007 ------------------------------- Dated this the 15th day of December, 2011 J U D G M E N T Basant, J. Did the deceased set fire to herself or did the appellant set fire to his deceased wife ? At the end of the day, this is the crucial question to be decided in this appeal. 2. The appellant has been found guilty, convicted and sentenced under Section 302 of Indian Penal Code to undergo imprisonment for life. There is a sentence of fine and default sentence also. The appellant was found not guilty and acquitted of the offence under Section 498A of Indian Penal Code alleged against him. 3. The prosecution alleged that the marriage between the appellant and the deceased had taken place on 27.2.2000. There was strain and bickerings in the marital relationship. The wife was obliged to complain to the police and Ext.P1 complaint was lodged by her before the police with the request to the police to advice and counsel her husband. The husband was allegedly guilty of physical and mental cruelty of the abhorrent variety Crl.A.No.998/2007 2 against his wife. Two children were born in the wed lock. 4. According to the prosecution, the incident took place on 8.10.2005 at about 3.30 p.m. There was a Betrothal ceremony in the house of a neighbour. The deceased very much wanted to attend that. The appellant refused her permission to attend that Betrothal. There were quarrels and physical assault against the deceased on that score. 5. The sister of the appellant PW.1 and her husband, PW.5 had come to attend that Betrothal ceremony. Shortly prior to the incident in this case, the appellant returned to his house. He wanted to know whether the deceased had gone to attend the Betrothal ceremony. She had not gone. But in a moment of frustration, she asserted before him that she had gone for such Betrothal. This led to physical altercation. In disgust, the deceased said that she wants to leave for her house. She had taken her bag and clothes. To prevent her from proceeding, the appellant allegedly got a bottle of kerosene and attempted to burn the clothes of the deceased. Evidently to prevent that, the deceased had caught hold of the kerosene bottle and had poured Crl.A.No.998/2007 3 kerosene on herself. Though it is not stated in many words, her evident intention it appears was to prevent the appellant from setting fire to her clothes, in which event she would also have been burned. According to the prosecution, the appellant reckoned that as an opportunity, he lighted a match stick and set his wife, the deceased, ablaze. The prosecution had, in these circumstances, alleged that the appellant had committed the offences punishable under Sections 498A and 302 of Indian Penal Code. 6. Crime was registered and investigation commenced on the basis of a statement of the deceased recorded by PW.16, head constable. The investigation was completed and the final report/charge sheet was filed by PW.19. 7. The case was duly committed to the Court of Sessions. The prosecution examined PWs.1 to 19 and proved Exts.P1 to P19. M.Os. 1 to 5 were also marked. 8. When examined under Section 313 Cr.P.C., and in the course of cross examination, the accused took up the stand that it was not he who had set fire to his wife. According to him, Crl.A.No.998/2007 4 she had twice attempted on that date to set fire to herself and he had detained her. But still she lighted the match stick and set fire to herself. The appellant had attempted to put out the fire. According to him, she had falsely stated that it was he who set fire to her. On his side, DW.1, his brother was examined. Ext.D1, a case diary contradiction, was marked when Ext.PW.5 was cross examined. 9. The learned Sessions Judge on an anxious consideration of all the relevant inputs came to the conclusion that it is safe to conclude that the deceased was set ablaze by her husband, the appellant. Accordingly, the learned Sessions Judge proceeded to pass the impugned judgment. 10. We have heard the learned counsel for the appellant, Mrs.P. Vani (Legal Aid counsel) and the learned Prosecutor. The learned counsel for the appellant argues that the totality of circumstances must definitely generate a reasonable doubt in the mind of the Court as to whether it was the appellant who set his wife ablaze or whether it was the deceased wife herself who in a fit of frustration and frenzy set Crl.A.No.998/2007 5 fire to herself. This, as stated earlier, is the crucial question to be decided in this appeal. 11. This judgment must be read in continuation of the judgment of the trial court. We are hence not attempting to re- narrate the oral and documentary evidence relied on by the prosecution. Suffice it to say that we have been taken by the counsel in detail through the oral evidence of PWs.1 to 19 and the contents of Exts.P1 to P19. We have also been taken through the charges framed by the court and the answers given by the accused in his examination under Section 313 Cr.P.C. 12. About the incident proper - as to who had set fire to the deceased, we have no ocular account. The prosecution examined Pws.2 and 4 who are a neighbour and her husband and the mother of the appellant (PW.3). Their evidence beyond the pale of controversy establishes that there was a strained relationship between the spouses and that on that very day in particular, there were quarrels between them and physical assault on his wife by the appellant. That aspect is well established and it is unnecessary for us to specifically advert to Crl.A.No.998/2007 6 the inputs on that aspect. A reading of the evidence of PW.3, the mother of the appellant, is sufficient to come to a clear conclusion on that aspect. 13. PW.3, the mother of the appellant who must have witnessed the entire incident which took place inside their house turned hostile and did not choose to reveal to the Court the entire truth of what happened inside the house. According to her, she had wrested possession of the kerosene bottle and had tried to place it beyond the reach of the spouses. When she returned, she saw both of them ablaze. She is hence not able to explain to the court how the fire started. She was declared hostile and the crucial incongruity in the testimony is brought out by making a Case Diary contradiction. 14. The prosecution, in these circumstances, is unable to secure any ocular account as to how the fire started. But the prosecution heavily relies on the dying declaration made by the deceased. According to the prosecution, the deceased had stated immediately after the occurrence to people who reached there as also to authorities subsequently that it was her Crl.A.No.998/2007 7 husband who set herself ablaze. 15. That the deceased had stated so is also beyond controversy. A reading of Section 313 examination of the accused clearly shows that even the accused admitted that the deceased immediately after the occurrence had stated to the world around her that she had suffered the burn injuries when her husband set her ablaze. That matter is really beyond contention in view of the specific statement of the appellant in his examination under Section 313 Cr.P.C. If there be any doubt about the availability of substantive evidence, it would be advantageous to refer to the oral evidence of PWs.1 and 5, sister and brother-in-law of the deceased who were attending the Betrothal ceremony next door and had rushed to the house of the deceased on hearing the commotion. The presence of PW.1 in the house at that point of time is supported by the evidence tendered by hostile PW.2 also. 16. The evidence of PW.12, the Doctor and Ext.P9 dying declaration recorded by him from the deceased at 3.40 p.m., when the deceased reached the hospital eloquently Crl.A.No.998/2007 8 supports this theory of dying declaration. The fact that the Doctor had not specifically record that the deceased was in a fit state of mind is, according to us, irrelevant and it was the Doctor himself who recorded the dying declaration - evidently after satisfying herself about her competence physically and mentally to give such a statement. 17. From PW.12, she was rushed to a better medical center as her condition demanded such expert management. PW.13 Doctor examined her at 4.25 p.m. and in the wound certificate, Ext.P8, he recorded the alleged cause narrated to him by the deceased herself. Ext.P8 clearly shows that the alleged cause narrated to PW.13 by the deceased when she was brought to the hospital by none other than DW.1 is that she had suffered the burn injuries when her husband set her alight. 18. We then have Ext.P12 statement of the deceased recorded by PW.16, a head constable. PW.2 has also not taken the precaution of getting a Doctor to certify the physical and mental competence of the deceased to give such statement. The fact remains that PW.16 had recorded Ext.P12 Crl.A.No.998/2007 9 statement which has the thumb impression of the deceased affixed on it. We shall later advert to the contents of Ext.P12 in greater detail. Suffice it to say that the contents of Ext.P12 dying declaration also confirms that it was the appellant who set fire to the deceased. 19. Finally to crown all other dying declarations recorded from the deceased, we have the evidence of PW.15, the learned Judicial Magistrate of the First Class who was authorized by the learned Chief Judicial Magistrate to record such dying declaration. He stated that he had recorded Ext.P11 statement of the deceased as a dying declaration after observing all necessary safeguards. In that, it has been very clearly stated by the deceased that it was the appellant who set fire to her. The fact that the Doctor who certified the physical and mental competence of the deceased to give such a statement in Ext.P11 statement has not been examined is too inadequate a reason for any prudent mind not to accept and act upon Ext.P11 dying declaration recorded by the Judicial Magistrate. 20. Thus we have materials in abundance to safely Crl.A.No.998/2007 10 conclude without any semblance of doubt that the deceased had immediately after the occurrence and ultimately at 11.20 p.m. in Ext.P11 stated to others that she suffered the burn injuries because of the indiscretion committed by her husband, the appellant. 21. We again visit the statement under Section 313 Cr.P.C. of the accused wherein he also states unambiguously that such a statement was made by the deceased immediately after the occurrence that it was the appellant who set her ablaze. 22. We conclude beyond the realm of controversy that the deceased had made such a statement repeatedly after she suffered the injuries about the circumstance under which she had suffered the burn injuries. This is clearly admissible under Section 32(1) of the Indian Evidence Act. 23. The learned counsel for the appellant rightly contends that the mere fact that the deceased had made such a statement is not conclusive in itself. It will have to be alertedly considered whether such statement of the deceased could be Crl.A.No.998/2007 11 held to be honest, true, genuine and acceptable. If only the proved dying declaration can pass the test of truth, genuineness and acceptability, can it be reckoned as a crucial piece of evidence. There certainly is a great distance between admissibility of a piece of evidence and its availability. Every admissible piece of evidence does not become acceptable. The distance between admissibility and acceptability must be covered by an anxious adjudicator by alert applications of mind. We are in complete agreement with the learned counsel for the appellant that anxious endeavour must be made to ensure that the dying declaration was not only made, but that it was made truthfully, genuinely and honestly. 24. That appears to be the onerous responsibility on the Court. The learned Sessions Judge, we are very happy to note, has considered the matter from all angles and in all its dimensions. The learned Sessions Judge had alertly taken note of the possibility of the deceased in her then state of mind making false and incorrect allegations against her husband. Evidently passion was running high between the spouses and Crl.A.No.998/2007 12 there was bitter disagreement between the spouses on many aspects. Could the deceased, the wife of the appellant and mother of two children born in that relationship be making false allegations against her husband because of her frustration in matrimony and because of her disagreement against the conduct of her husband on many points ? That according to us is the crucial question to be considered. 25. We must take note in this context of an incongruity between all the other dying declarations made and Ext.P12 dying declaration recorded by PW.16, a police official. In Ext.P12 statement recorded at 5.10 p.m., the deceased, contrary to all other statements of hers recorded/perceived by various persons, is alleged to have stated that it was her husband, the appellant, who poured kerosene on her. The learned counsel for the appellant submits that this must make any adjudicator wary of the possibility of exaggeration/false statements on the part of the deceased. That she was competent to exaggerate and make false statements is evident from this one circumstance revealed in Ext.P12, contends the Crl.A.No.998/2007 13 learned counsel for the appellant. 26. We have taken note of the totality of inputs. We do note, as rightly found by the learned Sessions Judge that the most acceptable and competently recorded dying declaration is Ext.P11 recorded by PW.15, the learned Magistrate. A careful reading of Ext.P11 must impress upon the Court its spontaneity, genuineness, honesty and want of rancour. She narrates her tale of woes in Ext.P11. On all other aspects that dying declaration of hers gets convincing support from the evidence tendered by her mother-in-law PW3, (i.e., the mother of the appellant) in Court on oath. The essential truth, honesty and genuineness of Ext.P11 is convincingly indicated by the statement of oath given by hostile PW.3, the mother of the appellant. 27. In this context, we go back to the details of Ext.P11. Two particular aspects deserve careful consideration, according to us. Even though it is stated that in Ext.P12 an exaggerated/incorrect version was given by the deceased to PW.16, in Ext.P11, she honestly owns contrary to the contents of Crl.A.No.998/2007 14 Ext.P12 that it was she herself who poured kerosene on her. That honest statement goes miles to assure the court about the essential truth and honesty which prompted the deceased to make such statement. 28. There are more indications to suggest that the deceased was not triggered by any unjustified rancour against her husband. She honestly states that her husband did attempts to put out the fire. An attempt on his part to make amends for the indiscretion committed by him is perhaps indicated by such attempt on his part to put out the fire. What appears to us to be crucially relevant is that the deceased did not try to paint her husband black completely. The proverbial attitude of “give the devil its due” is indicated intrinsically from Ext.P11. 29. The deceased goes further. She states that her husband not only attempted to put out the fire, he also attempted to apply Colgate tooth paste on her burns (it is a common impression that tooth paste is a good anti dote for burn injuries). Even that friendly conduct of the appellant is honestly revealed by the deceased in Ext.P11. Crl.A.No.998/2007 15 30. It is trite that dying declaration is essentially hear say evidence. The bane of hear say evidence is the inability or want of opportunity for the indictee to challenge the evidence on its merits by cross examination. The policy of law is to make such dying declaration under Section 32(1) admissible for various reasons. First of course is the reason of expediency. If such evidence of a deceased person were not admitted, that would amount to squandering of very valuable piece of evidence which would virtually amount to denial of justice. The law hence makes dying declaration about the cause of death of the maker admissible under Section 32(1), leaving the entire burden on a sublime adjudicator to decide whether it is acceptable. The other dimension as to why such hearsay dying declaration is admitted in evidence under Section 32(1) of the Indian Evidence Act is the possibility of the circumstances inducing in the mind of the deceased an element of sublimity because of the impending death. It is well known that no one would want to have his final appointment with the Creator with a lie in his mouth. But Indian law does not insist that anticipation of Crl.A.No.998/2007 16 impending death is a condition precedent to make a dying declaration admissible under Section 32(1). Though that is not a requirement of law, we find in this case that that circumstance is very much available. Ext.P11 dying declaration recorded by the learned Magistrate clearly reveals that the deceased was under anticipation of death. She was worried that she may breath her last any time after the dying declaration was given. She had suffered 70% burn injuries. It is possible and very reasonable and natural in the given circumstances to think and feel that a certain level of sublimity must have been induced in the deceased when she gave Ext.P11 dying declaration. We are able to perceive elements of such sublimity intrinsically in Ext.P11 when we see her honest statement that she has herself poured kerosene on her and that her husband in spite of all acrimony between them had tried to put out the fire and had tried to apply the soothing tooth paste on her burns. 31. We repeat that the assurance offered by the evidence of PW.3 goes a long way to inspire confidence in us about the truth and acceptability of the dying declaration. Crl.A.No.998/2007 17 Intrinsically Ext.P11 dying declaration reveals that the deceased was willing to given even the appellant the credit for what he had done. We feel convinced that there was a level of sublimity undoubtedly induced in the deceased because of the anticipated death. Suffice it to say, we are satisfied that the dying declaration given by the deceased can safely be accepted and was rightly accepted by the learned Sessions Judge. We find no reason to interfere with that sound discretion exercised by the trial Judge after adverting to all relevant inputs. 32. We find no merit in the argument that the deceased must have attempted to commit suicide. After all it is admitted that she had poured kerosene on her, it is argued. Such a woman who had poured kerosene on herself deliberately may have set herself on fire. At any rate, the benefit of doubt deserves to be conceded to her, it is argued. In this context, the evidence of PW.3 is eloquent. There is nothing to suggest that the deceased was attempting to commit suicide. She wanted to return to her home. To prevent that and to spite her, the appellant threatened to burn her clothes which she wanted to Crl.A.No.998/2007 18 take with her. It was the husband who brought the kerosene bottle to the scene. The conduct of the deceased were intended to prevent the appellant from setting fire to her clothes. She poured kerosene on herself and sat near her clothes to deter the appellant from setting fire to her clothes. No element of attempt to commit suicide is revealed from the totality of circumstances. PW.3's evidence is eloquent in this context. There is no contention or indication of any accidental fire spreading to the deceased from the clothes. We find no genuine or reasonable doubt on the acceptability of the dying declaration that the appellant had intentionally applied the lighted match stick to the deceased. 33. Less said about the evidence of DW.1, the brother of the deceased, the better. The learned Sessions Judge has considered his evidence in detail before that was rejected. His evidence that he saw the deceased setting herself in fire was rightly rejected. He who was called by PW.3 after the event could not at any rate have perceived the alleged commencement of fire. Crl.A.No.998/2007 19 34. The dying declaration when believed undoubtedly establishes the offence under Section 302 IPC alleged against the appellant. Intention to cause death is evident. The fact that the appellant became wise after the event and attempted to undo his evil deeds does not all distract or militate against the intention entertained by him, when the indiscretion was actually committed. The offence would fall under the definition of murder under Section 300 IPC by the play of clause firstly of Section 300, if not under clause thirdly of Section 300. The offence punishable under Section 302 IPC is thus clearly established. We note that the appellant has been acquitted of the offence under Section 498A IPC. No appeal is preferred by the State against such acquittal. We take note of the submission that the offence under Sections 498 A and 309 IPC are clearly established from the indisputable evidence and even the stand taken by the accused. We do not, in the circumstances, deem it necessary to delve deeper into the propriety of such acquittal. 35. It follows from the above discussions that the Crl.A.No.998/2007 20 verdict of guilty and conviction do not warrant interference at all. The appeal fails and it is hereby dismissed. R.BASANT, Judge. V.CHITAMBARESH, Judge. nj. R. BASANT & V.CHITAMBARESH, JJ. --------------------------------------------- Crl.Appeal No.998 of 2007 JUDGMENT 15th December, 2011. ---------------------------------------------