IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 13TH OCTOBER 2009 / 21ST ASWINA 1931 CRL.A.No. 1806 of 2005() ------------------------ SC.606/2004 of ADDL. SESSIONS COURT (ADHOC), PATHANAMTHITTA CP.63/2004 of JUDL.MAGISTRATE OF FIRST CLASS COURT, RANNI .................... APPELLANT: -------------- SOMAN @ KUNJUMON, S/O.NARAYANAN, CONVICT NO.9224, CENTRAL PRISON, TRIVANDRUM-695 012. BY ADV. SRI.SAJEEV.T.P. RESPONDENT --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR, SRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. -------------------------------- Crl.A.No.1806 OF 2005 --------------------------------- Dated this the 13th day of October, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant was the accused in Sessions Case No.606/2004 on the file of the Additional District and Sessions Judge (Ad-hoc) Fast Track Court-I, Pathanamthitta. He stood charge sheeted by the Dy.S.P. of Police, Thiruvalla for having murdered his wife by pouring kerosene on her at about 9.30. p.m. on 9.3.1999 and setting fire to her. 2. The prosecution case in brief is as follows: The appellant is a loading worker . He used to drink and quarrell with his wife frequently. On the date of incident, he demanded Rs.250/- from his wife. She has availed a loan of Rs.1000/- for doing maintenance work to the hut in which they were residing. On coming to know of this, the appellant demanded Rs.250/-. When she declined to pay the same, he took MO1 Can containing kerosene kept in the kitchen, poured Crl.A.No.1806/2005 2 the kerosene on her, lighted a match and set fire to her. Their house was at a higher level when compared with the house of PW1, the brother of the deceased Valsamma. Smt.Valsamma rushed to the house of PW1 engulfed by fire and fell down. PW1 and his wife poured water on her and quenched the fire. Her clothes were removed. A jeep was called and she was taken to the General Hospital at Pathanamthitta by PW1 and others. The doctor at the General Hospital, after examining the patient, directed to take her to the Medical College Hospital, Kottayam. In a taxi, she has taken to the Medical College Hospital, where she was admitted on 10.9.2009. Immediately, after the incident, she told PW1, her brother, and PW2, who is her neighbour that it was the appellant, who poured kerosene on her and set fire to her. At the hospital, PW7, Head Constable, met her and recorded Ext.P5 F.I.Statement. The said officer got intimation regarding the incident through wireless from Gandhi Nagar Police Station. He found the injured in a conscious state and gave a statement implicating the appellant as the person responsible for the burns sustained by her. Since all her fingers were burned, thumb impression or impression of any other Crl.A.No.1806/2005 3 finger could not be taken. PW7 has made an endorsement to that effect in Ext.P5 F.I.Statement. With the assistance of the bystander, who was the sister of the injured, he prepared a body note also. Based on the said F.I.Statement, PW10, Circle Inspector of Police, registered a crime under Section 498A and 307 of the I.P.C. While undergoing treatment, the injured breathed her last at the midnight between 13.3.1999 and 14.3.1999. PW10 prepared the inquest report and sent the body for postmortem examination. Doctor Augustine conducted the autopsy and issued Ext.P7 postmortem certificate. PW10 filed a report before the Judicial First Class Magistrate's Court, Ranni, incorporating the offence under Section 302 of the I.P.C. and deleting Section 307 of the I.P.C. He visited the scene and prepared Ext.P1 Scene Mahzar. He seized MO1 Can and MO2 series consisting of partially burned leaves of mango tree, burned matches, remnants of burned clothes, portions of a burned skirt, portions of a burned nighty and burned grass from the place, where Valsamma fell down. He continued the investigation till PW11, Deputy Superintendent of Police, took over the investigation on 31.5.1999. In the meantime, PW8, Crl.A.No.1806/2005 4 Assistant Sub Inspector of Police, arrested the accused on 14.5.1999. PW11 questioned the witnesses and completed substantial portion of the investigation. PW12, successor Deputy Superintendent of Police, Thiruvalla, took over the investigation on 16.9.1999. He completed the investigation and laid the charge sheet before the Judicial First Class Magistrate, Ranni, who on finding that the offence alleged were exclusively triable by a court of sessions, committed the case to Sessions Court, Pathanamthitta, which in turn was made over to Fast Track Court-I, Pathanamthitta. 3. The appellant pleaded not guilty to the charges framed by the trial court. The prosecution to prove its case examined PWs 1 to 12, marked exhibits P1 to P11 and also produced MO1 and MO2 series material objects. From the side of the defence, Exts.D1 to D3, which were the contradictions in the deposition of PWs 1, 2 and 3 with reference to their statements recorded earlier under Section 161 of the Cr.P.C. were also marked. The trial court, after hearing both sides, found the appellant guilty of the offence under Section 302 of Crl.A.No.1806/2005 5 the I.P.C. and sentenced him to undergo imprisonment for life. A fine of Rs.1,00,000/- was also imposed and in default, he was to undergo rigorous imprisonment for four years. Feeling aggrieved by the above conviction and sentence, the appellant has preferred this Criminal Appeal. 4. Heard. We went through the deposition of the witnesses and other documents produced by the prosecution. It is common ground that the wife of the appellant, Smt.Valsamma, sustained burn injuries during the night of 9.3.1999 and she succumbed to those injuries while undergoing treatment at Medical College Hospital on 14.3.1999. These facts are proved by the deposition of PWs 1 to 3 and also Ext.P7 postmortem certificate, wherein the doctor has given the opinion as to cause of death as “died due to consolidation of lung following burns.” The point to be considered in this appeal is whether it was a case of homicide or suicide. The appellant, who accompanied the injured to Pathanamthitta General Hospital while admitting her, informed the doctor that the victim sustained burned injuries by accidental catching of fire on her cloth from a kerosene lamp. Crl.A.No.1806/2005 6 But, the deceased while giving Ext.P5 statement informed PW7, the Head Constable, who recorded the statement, that the appellant poured kerosene on her and set fire to her. The motive for the same was her refusal to pay Rs.250/- to him. PW1, who is the brother, who saw her coming down from her house as a fireball and falling down near her residence, also deposed before the Court that she told him that it was the appellant, who set fire to her after pouring kerosene. PW2, who is a lady residing in the neighbourhood and who came to the scene, immediately after the incident, has also deposed before the court that she was told by Valsamma that it was the appellant, who set fire to her after pouring kerosene. PW3, who is a witness to Ext.P7 scene mahzar, has also spoken about the version of the deceased concerning the incident. 5. The trial court relied on their versions, on finding that they are relevant under Section 6 of the Evidence Act and also relying on Ext.P5 found the appellant guilty. The trial court also noticed that during cross-examination, the case of the defence was that it was a case of accidental fire from a kerosene lamp. Crl.A.No.1806/2005 7 But, while he was questioned under Section 313 of the Cr.P.C. the appellant said that because of the failure of her brother, PW1, to pay the due consideration for the property sold by her she committed suicide. The trial court declined to believe the above version of the defence and found the appellant guilty. 6. The point that has to be examined is whether the said finding is sustainable or not. The fact that the clothes of the deceased caught fire at about 9.30 p.m. on 9.3.1999, while she was in her house and subsequently she died, while undergoing treatment is an undisputed fact. Whether the clothes of the victim caught fire accidentally from a kerosene lamp or she committed suicide as suggested while questioned under Section 313 of the Cr.P.C. has to be examined. The suggestion made while cross-examination is inherently improbable having regard to the nature of the injuries on the body of the deceased. If fire is caught to a portion of the cloth worn by the deceased from a small kerosene lamp, it will not engulf the victim as happened in this case. So, the said possibility has to be ruled out. The next point to be considered is whether it was a case Crl.A.No.1806/2005 8 of self immolation. But, the evidence of PWs 1 to 3 corroborated by Ext.P5 statement rule out the possibility of a case of attempted suicide. They unerringly point to the guilt of the accused. So, we find no reason to take a different view from the view taken by the trial court that it was the appellant, who caused the death of his wife. In the result, the Criminal Appeal fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (P.BHAVADASAN, JUDGE) ps Crl.A.No.1806/2005 9 K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. =========================== Crl.A.NO.1806/2005 =========================== JUDGMENT DATED 13TH OCTOBER, 2009 ==============================