IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR FRIDAY, THE 17TH NOVEMBER 2006 / 26TH KARTHIKA 1928 CRL.A.No. 183 of 2004() ----------------------- SC.19/2000 of ADDL. SESSIONS COURT (ADHOC), TRIVANDRUM CP.27/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD .................... APPELLANT/ACCUSED: ----------- DAISY D/O. ROOPAJANOM, NAYYANIKKONAM VEEDU, KEEZHE KALLAYAM, PURAVOORKKONAM MURI, KARAKULAM VILLAGE. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.KRISHNADAS P. NAIR SMT.K.L.SREEKALA SRI.HARIDAS P.NAIR RESPONDENT/COMPLAINANT: ------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR K.C.SANTHOSH KUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/11/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.KOSHY & K.PADMANABHAN NAIR, JJ. ------------------------------- CRL.APPEAL.NO.183 OF 2004 (A) ----------------------------------- Dated this the 17th day of November, 2006 J U D G M E N T PADMANABHAN NAIR,J. This appeal is filed by the 1st accused in S.C.No.19/2000 on the file of the Additional Sessions Judge, Fast Track Court-I, Thiruvananthapuram. The appellant along with her father were charge sheeted for the offences punishable under Sections 120B, 302 and 201 read with 34 of the Indian Penal Code. The charge against A2 abated as he died before the trial of the case started. The learned Sessions Judge after trial found appellant guilty of the offences punishable under Sections 302 and 201 of IPC and convicted. She was sentenced to undergo life imprisonment and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo Rigorous Imprisonment for three months for the offence under Section 302 of I.P.C. and to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.1,000/- and in default of payment of fine to undergo CRL.APPEAL.183/2004 2 Rigorous Imprisonment for one month for the offence under Section 201 of I.P.C. The substantive sentences were directed to run concurrently. She was found not guilty of the offence charged under Section 120 B of I.P.C. and acquitted of that offence. 2. Deceased Sreedharan @ Sasidharan and appellant were living together as husband and wife in the house belonging to the appellant. Deceased was suffering from epilepsy. It was alleged that appellant entered into a conspiracy with A2, her father and committed murder of Sasidharan by pouring kerosine and setting fire to his body while he was lying unconscious due to epilepsy. They placed his body in an old cow dung pit near to the residence of the appellant, set fire to same and concealed the deadbody so as to cause disappearance of the evidence of commission of the crime. PW1 gave Ext.P1 F.I statement before PW13, Sub Inspector of Police stating that Sasidharan was missing. PW13 recorded Ext.P1 statement and registered Ext.P1(a) F.I.R. as Crime No.411/1997 under the caption 'man missing' and conducted investigation. He submitted Ext.P12 report and CRL.APPEAL.183/2004 3 proceeded with the investigation under Section 174 of the Code of Criminal Procedure. Subsequent investigation was taken over by PW15, Circle Inspector of Police. Investigation revealed that it was a case of murder. A report was filed arraying appellant and her father as the accused. PW15 completed investigation and filed final report. Learned Magistrate committed this case to the Court of Sessions. Before the trial of the case started A2 died and the charges framed against him abated. 3. Appellant appeared before the learned Sessions Judge. Learned Sessions Judge framed charges under Sections 302 and 201 of I.P.C. after hearing both sides. Charges were read over and explained to the appellant. She understood the same and pleaded not guilty. PW1 to PW15 were examined; Ext.P1 to P15 proved and marked; MOs.1 to 5 identified. After prosecution evidence was over appellant was questioned under Section 313 of the Cr.P.C. She denied all incriminating circumstances brought against her. The matter was heard. Since no grounds were made out to acquit appellant, she was called upon to enter on her defence. No defence evidence CRL.APPEAL.183/2004 4 was adduced. Learned Sessions Judge found appellant guilty for the offences charged, convicted and sentenced her as aforesaid. This criminal appeal is filed challenging the conviction and sentence imposed on the appellant. 4. The fact that Sreedharan @ Sasidharan died of the burn injuries sustained by him is not disputed. The evidence on record shows that dead body of Sreedharan was exhumed from the bottom of a cow dung pit. PW12 prepared Ext.P6 inquest report. PW11 is the doctor who conducted the postmortem and issued Ext.P10 Postmortem Certificate. The doctor had noted the following injuries in Ext.P10. INJURIES (ANTE MORTEM) Deep burns involving the whole body. Line of redness seen on the under aspect sides of both feet and on the upper germs just above the incisors. Bones and tendons exposed on the face at places back of both legs and heels. Muscles were seen expose on the front of chest at places. Superficial injuries including ligature mark, if any, could not be detected due to burns and decomposition. There was no evidence of any skeletal violence. Flap dissection of neck was done in a bloodless field. Neck structures were found to be intact and normal. Air passages contained soot particles in its divisions. Lungs dark, soft and flabby. Chest cavities contained CRL.APPEAL.183/2004 5 20 ml. of blook stained fluid each. Stomach contained firm whitish particles having no unusual smell, mucossa decomposed. Urinery ladder empty. Other internal organs decomposed. Viscera and blood stained fluid preserved and sent for chemical analysis. OPINION AS TO CAUSE OF DEATH: Death was due to burns involving the whole body. The evidence adduced in this case proves beyond reasonable doubt that Sreedharan sustained burn injuries and died after 1.11.1997. 5. The next question arising for consideration is whether there is any evidence on record to connect the appellant to the offences alleged. The prosecution examined four witnesses to prove the incident. PW1 is an independent witness. He gave Ext.P1 F.I.Statement. He is not an eye witness. He did not support the prosecution. PW2 is the son of A1 and PW3 is the sister in law and PW4 is the sister of the appellant. They turned hostile. They did not support the prosecution. PW1 admitted his signature in Ext.P1 but denied of having given the statements contained in Ext.P1. Even though PW2 was not CRL.APPEAL.183/2004 6 declared hostile the learned Public Prosecutor put leading questions to him and confronted him with portions of his statement recorded under Section 164 of the Cr.P.C. by the Magistrate. PW2 was an eight year old boy at the time of the incident and aged 14 on the date of his examination in court. PW2 had admitted many of his statements given before the learned Magistrate under Section 164 of the Cr.P.C. but denied some of those statements. PW2 deposed that he was threatened and forced by the police to state before the Magistrate that it was the appellant who killed Sasidharan. He had further deposed that the police threatened him that unless he gave such statement, he will also be taken to jail along with his mother and that is the reason why he gave such a statement. The prosecution case was that it was PW2 who showed light to the accused by flashing a torch so as to carry the body of Sreedharan to the cow dung pit. The learned Sessions Judge gave undue weight to the statement given by PW2 before the Magistrate. It is settled law that a statement given by a witness under Section 164 before the Magistrate cannot be used as a substantive evidence and his evidence must be approached with caution. PWs.3 and 4 had not stated CRL.APPEAL.183/2004 7 anything which will help the prosecution. There are absolutely no other materials available on record to connect the appellant to the offences alleged. According to the prosecution, it was the appellant who pointed out the place where the dead body was buried. That fact also is not sufficient to hold that it was the appellant who committed the murder of the deceased. Appellant was arrested on 10.11.1997. 6. The prosecution case was that deceased Sreedharan was suffering from epilepsy and he will become unconscious at the time of attack of epilepsy. The appellant was married to another person. He deserted appellant and thereafter deceased was residing with the appellant. They were living together as man and wife. The deceased used to manhandle appellant alleging that she was going out to have sexual intercourse with others. Appellant became inimical towards the deceased and because of that enmity herself along with the 2nd accused carried the body of Sreedharan to the cow dung pit when he fell unconscious due to epilepsy, poured kerosine oil over his body and set fire. But the prosecution has not adduced any medical evidence to prove that deceased CRL.APPEAL.183/2004 8 Sreedharan used to fall unconscious due to epilepsy. On the other hand, the prosecution case as revealed by Ext.P1 and Ext.P5 was that Sreedharan attempted to commit suicide by hanging and the accused were under the impression that he died due to hanging. According to the prosecution the accused set fire to the body of Sreedharan thinking that it was deadbody. Subsequently it was alleged that he murdered Sreedharan while he fell unconscious. There was no material to show that Sreedharan fell unconscious. There was absolutely no evidence to show as to how body of Sreedharan caught fire. Mere suspicion, however strong it may be, is not a substitute for proof. 7. There is absolutely no material to find that it was the appellant who committed murder of Sreedharan. Therefore, the conviction and sentence imposed on her by the learned Sessions Judge under Sections 302 and 201 of the IPC are unsustainable and liable to be set aside. We hold that the prosecution has failed to prove the charges levelled against the appellant. She is entitled to an acquittal. CRL.APPEAL.183/2004 9 In the result the Criminal Appeal is allowed. Conviction and sentence imposed on the appellant under Sections 302 and 201 of the Indian Penal Code are hereby set aside. Accused is found not guilty of those offences and acquitted. Appellant is set at liberty. Fine, if any, paid will be refunded to the appellant. She will be released from jail forthwith if her continued detention is not required in connection with any other case. J.B.KOSHY, JUDGE K.PADMANABHAN NAIR, JUDGE prp J.B.KOSHY & M.N.KRISHNAN, JJ. -------------------------------------------------------- M.F.A.NO. OF 2006 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 9th November, 2006