IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 CRL.A.No. 326 of 2006() ----------------------- SC.381/2005 of ADDITIONAL SESSIONS COURT (ADHOC)III, THRISSUR .................... APPELLANT(S): ACCUSED: -------------------------------------- MOIDEEN, S/O. PUTHENPURAKKAL VEETTIL HASSAN, THRITHALLUR DESOM, VATANAPPILLY VILLAGE. BY ADV. SRI.RAJIT SRI.RANJIT BABU RESPONDENT(S): COMPLAINANT: ---------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BU PUBLIC PROSECUTOR SRI. NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/11/2009, THE COURT ON 29/01/2010 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 326 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of January, 2010. JUDGMENT Bhavadasan, J, The appellant, who was found guilty of uxoricide and cruelty to his wife was convicted and sentenced for life imprisonment and to pay a fine of Rs.2000/-, in default of payment of which to undergo rigorous imprisonment for one year under Section 302 Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/-, in default of payment of which, he had to suffer simple imprisonment for a further period of three months for the offence punishable under Section 498A IPC. 2. The prosecution story runs thus: The deceased got married to the appellant on 21.1.2001. It is claimed that at the time of marriage she was given 25 sovereigns of gold and Rs.50,000/- in cash. The Crl.Appeal.326/2006. 2 couple took up residence in the matrimonial house. The allegation is that a few days after the marriage, the accused began to harass and torture the victim demanding more money and gold ornaments. It is also stated that the accused was in the habit of taking liquor. The prosecution allegation is that after reaching home in a drunken condition the accused also used to assault his wife. On 16.12.2001 at about 8 p.m. as usual the accused came home drunk and demanded the gold ear studs of his wife for raising money. She flatly refused to hand over the same. That infuriated her husband, the appellant herein, who according to the prosecution case, poured kerosene over her from the kerosene lamp burning in the room and thereafter set her on fire. The victim suffered severe burns. She was taken to a local physician, who advised her to be taken to the nearby hospital for better management. She was removed to the Jubilee Mission Hospital. While undergoing treatment, she breathed her last on 21.12.2001. In the meanwhile, on 20.12.2001 Crl.Appeal.326/2006. 3 P.W.12 attached to Vadanappally Police Station, on getting information that Ayshabi, the victim was undergoing treatment at the Jubilee Mission Hospital as a result of the burn suffered by her, reached the hospital and recorded Ext.P12 first information statement said to have been given by the victim herself. On the basis of that P.W.9, the Sub Inspector of Police registered Crime No.393 of 2001 for the offences punishable under Sections 498A and Section 307 IPC as per Ext.P5 FIR. Since the victim died in the early hours of 21.12.2001 the investigation was taken over by P.W.10. As the death was an unnatural one, inquest was conducted by P.W.7, the R.D.O. of Chavakkad and Ext.P3 is the report. The investigating officer on 21.12.2001 itself visited the place of occurrence and prepared Ext.P6 scene mahazar. He recovered M.Os. 1 to 4 found at the place of occurrence. He thereafter filed Ext.P7 report seeking to have Section 307 deleted and Section 302 incorporated. He also found that the date of Crl.Appeal.326/2006. 4 incident was wrongly recorded as 10.12.2001. He filed Ext.P8 report to correct the date as 16.12.2001. He had the materials recovered by him sent for chemical examination and Ext.P9 is the report. He recorded the statements of witnesses. He had the accused arrested on 21.12.2001 and produced him before court on that day itself. He obtained the necessary documents, completed the investigation and laid charge before court. 3. JFCM, Chavakkad, before whom final report was laid, took cognizance of the offence. On appearance of the accused before the said court, all legal formalities were complied with. Finding that the offences are exclusively triable by a Court of Sessions, the learned Magistrate committed the case under Section 209 Cr.P.C. to Sessions Court, Thrissur. The said court made over the case to IIIrd Additional Sessions Court (Ad hoc) Fast Track-I, Thrissur for trial and disposal. Crl.Appeal.326/2006. 5 4. The latter court, on receipt of records, issued summons to the accused and he entered appearance. After hearing both sides, charge was framed for the offences punishable under Sections 498A and 302 IPC. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had P.Ws. 1 to 14 examined Exts.P1 to P15 marked. M.Os. 1 to 4 were identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C.. He denied all the incriminating circumstances brought out against him and maintained that he is innocent. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused had D.Ws.1 and 2 examined and Exts.D1 and D2 marked. On an appreciation of the evidence before it, the court below found that the offences have been made out and conviction and sentence already mentioned followed. The said conviction and sentence are assailed in this appeal. Crl.Appeal.326/2006. 6 5. The short question that arises for consideration is whether the court below was justified in holding that the accused was guilty of the offences alleged against him. 6. The prosecution case in brief is that soon after the marriage between the appellant and the victim, the appellant began to ill-treat the victim complaining that she had brought inadequate dowry. The further allegation is that he used to come home drunk and manhandle the victim. The unfortunate incident is said to have taken place on 16.12.2001 at about 8 p.m. On that day, the accused came home drunk and demanded the victim to hand over her gold ear studs to him. The refusal on the part of the victim to do so is said to have infuriated the accused, who poured kerosene on her and set her ablaze. The court below found the evidence of Pws. 1, 4 and 5 very cogent and convincing. It found no reason as to why they should speak falsehood against the appellant. The court below was of the opinion that from their evidence, it is clear Crl.Appeal.326/2006. 7 that the accused had been ill-treating his wife. On further evaluation of the evidence, the court below also came to the conclusion that it must have been the accused, who set her on fire. 7. PW.1 is none other than the mother of the victim. She would say that her daughter was married to the accused on 21.1.2001. They took up residence in the matrimonial house. Aishabi, the victim was her eldest daughter. She would claim that at the time of marriage 25 sovereigns of gold and Rs.50,000/- in cash were given as dowry. Short while after the marriage, according to the witness, the accused began to ill-treat the deceased demanding more money and gold. She would depose that quite a few times unable to bear the cruelty of the accused, her daughter had come and stayed with her. On all those occasions, she used to passify her and sent her back. She was also given to understand that the money and gold ornaments given to her at the time of her marriage have been squandered away by the accused On one Crl.Appeal.326/2006. 8 occasion according to her, she went to the house of the accused and requested him to desist from his cruel acts. Her evidence is to the effect that on 16.12.2001 she received an information from Karuna Hospital that her daughter had been brought there with burns. She along with her son Subair reached the hospital. They found Aishabi in the Ambulance. She was taken to Thrissur Jubilee Mission Hospital. On 21.12.2001 Aishabi died. P.W.1 claims that all throughout from 16.12.2001 till her death Aishabi was attended to by her. Till death her daughter was conscious and was able to talk. She would say that her daughter told her that the accused had poured kerosene from the kerosene lamp over her and set her on fire. 8. P.W.2 claims to be a neighbour of the accused According to the prosecution, he had gone to the house of P.W.1 and told her about the ill-treatment of her daughter by the accused. In court also he had deposed that he had gone to house of P.W.1 Crl.Appeal.326/2006. 9 and told her about the acts of the accused. However, he betrayed the prosecution and was declared hostile. 9. P.W.4 is the daughter of P.W.1 and the sister of the deceased. P.W.4 also states that whenever Aishabi came to their house, she used to tell her about the cruelty of the accused. P.W.4 stated that one month before the death of Aishabi, she came and stayed in the house for ten days. 10. P.W.5 is a neighbour of P.W. 1 and she is a close friend of Aishabi. She too deposed that whenever Aishabi used to come to her house, she used to meet P.W.5 and tell her about her unfortunate life. 11. The above items of evidence taken along with Exts.P12 first information statement, which assumed the character of a dying declaration consequent on the death of Aishabi greatly impressed the court below. The court below did not find any reason to doubt the above items of evidence and found that the Crl.Appeal.326/2006. 10 lady had suffered 78% burn injury on her body. 12. Learned counsel appearing for the appellant criticized the court below for having entered a finding that the accused was guilty of the offence alleged against him According to the learned counsel, the court below has not applied its mind and mechanically found the accused guilty. The evidence of P.Ws.1, 4 and 5 do not stand scrutiny and are inconsistent and false. Viewed in the light of the evidence in the case, learned counsel contended that the socalled first information statement, which was given the status of a dying declaration was a concocted one. Learned counsel drew the attention of this court to the first information statement and pointed out that Aishabi had no case that after her marriage she had gone to her house and complained to her parents and sisters about the ill-treatment of her husband. Even going by the prosecution case, according to the learned counsel, assuming that Aishabi was capable of giving such a statement, it belies the Crl.Appeal.326/2006. 11 evidence of P.Ws.1, 4 and 5. Learned counsel also pointed out that the dying declaration is very elaborate and meticulous that it is impossible that it would have been given by a person who was in such a critical condition. Attention was also drawn to the fact that the victim was admitted in the hospital on 16.12.2001 and till 20.12.2001 there was no reason as to why police was not informed about the admission of Aishabi in the hospital. No cogent reason is given by the prosecution for this considerable delay and that makes the prosecution case very vulnerable. Attention was also drawn to Exts.P14 and P15, which are the wound certificates and case records relating to Aishabi, which show that burn injury suffered by her was by an accident. These vital items of evidence have been omitted by the court below and that has resulted in miscarriage of justice. Learned counsel pointed out that by no stretch of imagination the conviction and sentence can be sustained. Crl.Appeal.326/2006. 12 13. Per contra, learned Public Prosecutor pointed out that the court has applied its mind to the evidence on record and had come to a just conclusion. From the degree of burns suffered by the victim as well as the portions of the body where burns were sustained, it was evident that she was set on fire. There is sufficient evidence in this case to show that the accused was dis- satisfied with the gold ornaments and money received by him at the time of marriage and he wanted more of them. According to the learned Public Prosecutor, there is no reason to disbelieve P.Ws.1, 4 and 5 when they say that Aishabi used to come home quite frequently unable to bear the cruel acts by her husband and she narrated the woes to them. Learned Public Prosecutor also stressed that no wife would in the normal circumstances implicate her husband falsely. It was also pointed out that PW.1 and others were under the bonafide belief that intimation to the police would be given from the hospital. Even assuming that there is slight Crl.Appeal.326/2006. 13 delay in complaining to the police, according to the learned Public Prosecutor it is not of much significance in the case on hand, since there are other items of evidence which would establish the case against the accused. Learned Public Prosecutor concluded by pointing out that no grounds are made out to interfere with the finding of the court below. 14. It is true that the evidence of P.Ws.1, 4 and 5, namely, the mother, sister and the friend respectively of late Aishabi do say about the harassment meted out to her by the accused demanding more dowry. To recall their evidence, all of them say that the accused used to come home drunk quite often and unable to bear the cruel acts of the husband, she used to complain about it to them. The question is whether the said version can be accepted. Prima facie there is nothing to suspect their evidence. However, it may be noticed that even though these witnesses claimed that Aishabi used to come home quite often and stay there Crl.Appeal.326/2006. 14 for a few days, Aishabi does not seem to have such a case at all. 15. The prosecution case is that Aishabi suffered about 78% degree of burns and she was set on fire by her husband. However, the medical records, namely, Exts.P14 and P15 maintained by the Jubilee Mission Hospital, indicate that she accidentally caught fire. It could be said that at the time of initial examination, it may not be necessary to mention all the details regarding the incident. Of course, it is also well established that one is not to determine the culpability of the offences based on what the doctor had stated therein or the person who brought the patient to the hospital. But in the case on hand, the entry in the medical records cannot be easily ignored. Ext.P12 is the statement said to have been given by Aishabi herself, which consequent on her death was treated as a dying declaration. It is true that in the said statement, she does say about the ill-treatment meted out to her by her husband. But she also says that on sustaining burns, she Crl.Appeal.326/2006. 15 along with a few others have gone to a nearby doctor and received initial first aid. She was thereafter referred to Karuna Hospital for better management. Her statement that when she reached the hospital, she was able to inform her family members and they soon arrived at the place. What is significant is that she was capable of talking at the relevant time. It is also important to notice that there is no mention in Ext.P12 that her husband was accompanying her at the relevant time. But significantly enough the evidence of D.W.1, who is none other than the person who initially attended Aishabi categorically states that she was brought by her husband. P.W.1 says that when she and her son arrived at Karuna Hospital, they found Aishabi in the Ambulance and she was removed to the Jubilee Mission Hospital. PW.1 also says that the victim's husband had accompanied them. This indicates that initially as well as at the later stage the victim was accompanied by her husband. This seems to be a conduct inconsistent with the claim of the Crl.Appeal.326/2006. 16 prosecution that the accused had set his wife on fire. 16. As already noticed, the medical records do show that the victim had accidentally caught fire. It may be useful here to refer to Ext.P11, which is the postmortem certificate and the evidence of P.W.11, the Surgeon who had conducted the postmortem examination. Ext.P11 gives in detail the ante mortem injuries found on the body of the victim. The conclusion drawn is that the death was due to complications due to burns. Therefore it is evident that the death was not due to a natural cause. The question that needs to be determined is whether the victim had accidentally caught fire or was set ablaze by her husband. 17. Neither the evidence of P.W.11 nor Ext.P11 gives any indication as to whether the claim of the prosecution that she was set on fire is true. Nor does it say whether the victim had caught fire accidentally. But what it does say is that going by the injuries noticed by the Forensic Surgeon he was of the opinion that Crl.Appeal.326/2006. 17 the patient was conscious throughout and capable of talking with others till death. One may now go back to the evidence of P.W.1. P.W.1 says that she was attending to her daughter through out while the victim was in the hospital. She also deposed that her daughter had narrated the entire details to her. That means that even from the first day itself, she was aware of the entire details. If she was aware, she would have informed this to the family members of the victim. One may recall here that along with P.W.1, the brother of the victim was also present. 18. It was contended by the learned Public Prosecutor that the nature of burns is such that it is not possible to come to the conclusion that it was an accidental affair It is quite evident that she has been set on fire. 19. Except for the claim made by the learned Public Prosecutor, there is absolutely no evidence in that regard at all. May be one would feel that going by the nature of the burns and Crl.Appeal.326/2006. 18 the position of the burns, it may be difficult to come to the conclusion that it is an accidental affair. But significantly enough the doctors attending to the patient at the Jubilee Mission Hospital has no such doubt at all. Nor did the Forensic Surgeon, who conducted the postmortem examination. The learned Public Prosecutor, who had conducted the case before the court below did not feel it necessary to ascertain this aspect at all. There was no attempt to show from either of the doctors, who are examined or the Forensic Surgeon, to establish the fact that the nature of the burns and the position of the body on which the burns were suffered, would clearly indicate that it could not have been accidental at all. In the absence of such an evidence, it may not be proper to come to the conclusion that the burns suffered by the victim could not have been accidental. 20. Ext.P12, as already noticed, is a statement given by the victim. P.W.12, the Sub Inspector of Police, who recorded Crl.Appeal.326/2006. 19 Ext.P12 statement of the deceased shows that the police station concerned got information only on the date on which Ext.P12 was taken, namely, 20.12.2001. One may recall here that the incident occurred on 16.12.2001 and the victim was admitted in the Jubilee Mission Hospital on the very same day itself. The hospital authorities had not informed the matter to the police station. Ext.P5 FIR was registered only on 20.12.2001. The said reason can be taken only with a pinch of salt. If as a matter of fact, the burns were such that it is virtually impossible to accept the version that it was accidental, the Doctors, who had attended to the victim at the Jubilee Mission Hospital would have easily noticed it. They could not be carried away by a statement given by the person who had brought the patient. At least the wound certificates and the medical records should indicate whether the cause given for the injuries are as stated by the person, who brought the victim to hospital. In the case on hand, one could say that initially it would Crl.Appeal.326/2006. 20 not have been possible to ascertain whether the burns were inflicted or accidental. But that cannot apply to the case on hand because even going by the prosecution evidence, the victim was capable of talking till her death. So also the evidence of P.W.1, which should indicate that the victim had narrated the entire incident to her at the earliest point of time. It is inconceivable that if as a matter of fact the victim had told her mother what had actually transpired, that would not have been conveyed to the hospital authorities. The reason for the considerable delay in lodging the FIS is therefore not explained. 21. It is also important to notice that the first information statement was recorded on 20.12.2001 by about 4 p.m. and the victim breathed her last at 4 a.m. on 21.12.2001. Going by the evidence of PW.11, the victim was capable of talking till her death. P.W.1 does say that she was attending to the victim, and therefore she could not inform the police. Even assuming that it Crl.Appeal.326/2006. 21 was so, there were other members of the family, especially the brother of the victim, who could have easily informed the police. It is here, one has to notice the reluctance on the part of the victim to concede that her husband had accompanied her initially to the local doctor and later to Karuna Hospital and then to Jubilee Mission Hospital. The evidence would show that after the victim was taken to the Jubilee Mission Hospital, the husband had not visited her. That may be cruel also. But that conduct by itself is not sufficient to mulct him with the liability. 22. The statements of P.Ws.1, 4 and 5 that the victim used to occasionally return to her house unable to bear the torture of the accused is open to serious doubt. Nowhere in her statement, Ext.P12, she had stated that she had gone to her house unable to bear the torture of her husband. On the other hand what she says is that she suffered all the ill-treatments thinking that if she complained, that would bring humiliation to the family of her Crl.Appeal.326/2006. 22 husband. Nowhere in her statement she says that she had ever informed the members of her family about the ill-treatment of her husband. Therefore it is not possible to accept the evidence of P.Ws. 1, 4 and 5 when they say that the victim used to come home quite often due to the ill-treatment of her husband. 23. Consequent on the death of the victim, Ext.P12 qualifies as a dying declaration. It is usually believed that the victim will not die with a lie in his/her mouth. Therefore dying declaration, subject to scrutiny, is usually accepted as substantive evidence. It is well established that conviction can be based solely on the dying declaration. But to do so, it will have to stand legal scrutiny. If the dying declaration is open to doubt, then the court has to look for corroboration. In the case on hand, Ext.P12 gave the detailed version and it is silent on the crucial aspects.