IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 17TH FEBRUARY 2010 / 28TH MAGHA 1931 CRL.A.No. 65 of 2006(A) ----------------------- SC.1465/2001 of ADDL. SESSIONS COURT (FAST TRACK COURT-I), THIRUVANANTHAPURAM CP.172/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA .................... APPELLANT: -------------- RAVI, S/O. SANTHAN, C.NO.9821, CENTRAL PRISON, TRIVANDRUM-695012. BY ADV. ADV.SUJITH MATHEW JOSE(STATE BRIEF) RESPONDENT: --------------- THE STATE OF KERALA, REPRESENTED BY A PUBLIC PROSECUTOR. PUBLIC PROSECUTOR MR. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== CRL.A. NO. 65 OF 2006 ============================ DATED THIS THE 17TH DAY OF FEBRUARY 2010 JUDGMENT Basant,J. In this appeal the appellant assails the verdict of guilt, conviction and sentence imposed on him under Sections 450 and 302 of the Indian Penal Code. He faces the sentence of rigorous imprisonment for five years and to pay a fine of Rs.5,000/- under Section 450 I.P.C. and a sentence of imprisonment for life and to pay a fine of Rs.5,000/- under Section 302 I.P.C. In default of payment of fine, rigorous imprisonment for one year each is also imposed. 2. The prosecution alleged that on 18-3-2001 at about 2.15 p.m., the appellant-accused trespassed into the house of the deceased Indira, sister of the appellant, for the purpose of committing offences and caused burn injuries to his sister Indira by pouring kerosene on her from MO.4 can and setting her ablaze. She succumbed to those injuries on 24-3-2001. CRL.A.NO.65/2006 -2- 3. Investigation commenced with Ext.P8 F.I. statement of deceased Indira recorded by PW9 on the basis of which Ext.P8(a) F.I.R.was registered on 20-3-2001. The investigation was completed and the final report was filed by PW12, the investigating officer. 4. The accused denied the offences alleged against him and thereupon the prosecution examined PWs.1 to 12 and proved Ext.P1 to P11. Mos.1 to 4 were also marked. 5. In the course of cross examination of prosecution witnesses, the accused suggested that his sister had an illicit relationship with PW1 and others. He had taken objection to such relationship and there was rancour between them on that score. He took up a defence of total denial when he was examined under Section 313 Cr.P.C. Later, at the defence stage by examining DWs.1 and 2, he suggested the possibility of the deceased having committed suicide. Ext.D1 the contradictory portion of C.D.statement of PW4 was marked on the defence side. 6. The court below on an anxious consideration of all the relevant inputs came to the conclusion that the deceased died of CRL.A.NO.65/2006 -3- burn injuries which were inflicted on her by the appellant at the relevant date, time and venue. Accordingly, the learned Sessions Judge proceeded to pass the impugned judgment. 7. An appellate judgment must be read in continuation of the judgment of the trial court. The court below has narrated the evidence of PWs.1 to 12, Exts.P1 to P11, evidence of DWs.1 and 2 and Ext.D1. All these pieces of evidence have been read before us threadbare by the learned counsel for the appellant. We have considered them. We are, in these circumstances, satisfied that it is not necessary for this court to re-narrate the oral and documentary evidence placed before court in any greater detail. Reference shall be made while adverting to the relevant circumstances to the evidence relied on by the rival contestants. 8. Arguments have been advanced before us by Advocate Shri Sujith Mathew Jose for the appellant and Sri. Noble Mathew, the learned Public Prosecutor. Ms.Noorji Noushad was initially appointed as a counsel on State Brief. As she is not attending the court after confinement, Sri Sujith Mathew Jose argued the case on her behalf before the court as permitted by CRL.A.NO.65/2006 -4- us. We are satisfied that proper assistance has been rendered to this Court by the learned counsel Sri. Sujith Mathew Jose. 9. This is a case where there is no specific eye witness to the occurrence. The case of the prosecution is that there was animosity between the accused and the deceased. The deceased was having her husband and two children. The husband had gone away and was residing separately. She was residing alone. The elder child was with the husband whereas the younger child aged 4 years was living with the deceased. It appears that there was some serious disputes between the deceased and her husband. 10. The appellant-accused is the brother of the deceased. The deceased was staying in the family house whereas the married brother, the appellant, was residing in an adjacent house. There are indications to suggest that the deceased was building a house near the family house. She, at the relevant time, the indications suggest, was residing in the family house. 11. According to the prosecution, there was some disagreement and disputes between the wife of the appellant and the deceased. There was some untoward incident between them. CRL.A.NO.65/2006 -5- The accused, his wife and her relatives alleged that the deceased had assaulted the wife of the accused. On that score, tempers were running high. It is the case of the prosecution that on the date of the incident, i.e. 18-3-2001, a Sunday the mother in law of the appellant had come to his house with the intention of intervening in that dispute. Some quarrel ensued in that morning. While the deceased was taking lunch from the room, the incident took place. Her brother, the appellant allegedly came to the scene. In the course of the quarrel, he allegedly poured kerosene in MO.4 can which was available in that house and set her on fire. She allegedly ran out of the house by crying. She was removed to the hospital. She later succumbed to the injuries. 12. The prosecution relied on various circumstances to drive home the charge against the appellant. We shall narrate the circumstances relied on by the prosecution below: 1. The deceased died of burn injuries suffered by her on 18-3-2001. She had succumbed to the injuries on 24-3-2001. Ext.P3 postmortem certificate and the oral evidence of PW2, who issued Ext.P3, as also the oral CRL.A.NO.65/2006 -6- evidence of PW11, the Doctor, who issued Ext.P9 wound certificate on 18-3-2001 indicate the injury, death and the cause thereof. 2) PWs.1, 3 and 4 neighbours were available at/near the scene of occurrence. They had seen the deceased running out of the house with burn injuries. The deceased stated to PWs.1,3 and 4 shortly thereafter that the appellant had set fire to her after pouring kerosene. 3) To the Doctor PW11 in Ext.P9 at 3 p.m. on 18-3-2001 the deceased had stated that she was set afire by her brother, the appellant herein. 4) To PW9, Head Constable at 1.30 p.m. on 20-3-2001 the deceased had given Ext.P8 F.I.statement in which she reasserted that she had suffered burn injuries at the hands of her brother, the appellant who poured kerosene on her and set her on fire. 5) To PW8, the Judicial Magistrate of the First Class in Ext.P7 dying declaration recorded by him in the presence of PW10, the Doctor, the deceased had given CRL.A.NO.65/2006 -7- a dying declaration at 3.20 p.m. on 21-3-2001 that she had suffered the burn injuries when the appellant poured kerosene on her and set her on fire on account of prior animosity. 6) The accused was present at the scene of the crime. 7) He does not offer any explanation in his 313 statement as to how the deceased had suffered burn injuries. 8) He did not accompany his sister to the hospital from the scene of the crime. 9) The accused was absconding after the incident and was available for arrest only on 2-4-2001 on which day PW12 arrested him at 9 a.m. 10) The nature of injury suffered according to the prosecution supports the theory that the deceased was set on fire by another. 13. The learned counsel for the appellant argues that these circumstances have not been established satisfactorily and that these circumstances even if accepted in toto cannot justify a CRL.A.NO.65/2006 -8- conclusion that the deceased had suffered the injuries at the hands of the appellant. 14. The learned Prosecutor, on the other hand, contends that the circumstances have been established satisfactorily and that they do establish the indictment against the appellant satisfactorily and beyond doubt. It is trite, and it is not necessary for us to refer to any precedents, that the burden is heavily on the prosecution, in a case of circumstantial evidence to prove all the circumstances relied on by the prosecution satisfactorily by cogent evidence. Such circumstances must form strong links in a strong and complete chain of circumstances which should point unerringly to the guilt of the accused. Such chain of circumstances must also exclude and rule out any reasonable hypothesis of innocence of the accused. 15. We shall now proceed to consider the circumstances and the effect of the circumstances proved. 16. Coming to circumstance No.1, it appears to be the undisputed case of all concerned that the deceased had suffered burn injuries on 18-3-2001 and had succumbed to those injuries on 24-3-2001. It is also not disputed that she had suffered the CRL.A.NO.65/2006 -9- injuries at or near the scene of occurrence as alleged by the prosecution. That circumstance is thus proved beyond reasonable doubt. It is unnecessary to advert to the various circumstances and the pieces of evidence which establish this circumstance. The bone of contention is only whether she suffered burn injuries in an attempt to commit suicide or whether she was intentionally set afire by the accused. 17. PWs.1,3 and 4 are admittedly neighbours. We find no serious dispute on the question that PWs.1,3, and 4 were present at or near the scene of occurrence at the relevant time. The suggestion in cross examination to PW1 was also that he was present at the scene of crime. PWs.3 and 4, named by the deceased are persons who were present at the scene as per Ext.P8 F.I.statement. In these circumstances, we find no reasons to doubt or suspect the presence of PWs.1,3 and 4 at or near the scene of the crime. The oral evidence of PWs.1,3 and 4 reveal that the deceased told them when enquired that she had suffered the injuries at the hands of the accused. We do not find any reason to disbelieve the oral evidence of PWs.1,3 and 4 that such statement was made by the deceased to them immediately after CRL.A.NO.65/2006 -10- the occurrence. The learned counsel for the appellant argues that PWs.1, 3 and 4 are pressed into service at a later stage – after registration of the crime to subscribe to a version that the deceased had made dying declarations to them. He contends that the evidence was cleverly manipulated by the police after they had registered the crime Ext.P8(a) on 20-3-2001. Counsel argues that the oral evidence of PWs.1, 3 and 4 cannot, in these circumstances, be believed. We do not find any merit in this contention. We find no merit in the contention that the evidence of PWs.1, 3 and 4 cannot be relied upon. PW1 has illicit relationship with the deceased; PWs.3 and 4 are friend and relative respectively of PW1; hence, their testimony must be doubted and approached with the reservation, contends the learned counsel. We do not find any merit in this contention. We find inherently, intrinsically and on broad probabilities, no reason to approach the evidence of PWs.1,3 and 4 with any amount of doubt or suspicion. We take note that this circumstance – that the deceased had made dying declaration to PWs.1,3 and 4 can be safely accepted. CRL.A.NO.65/2006 -11- 18. The third circumstance is a very crucial circumstance. From the scene of the crime after suffering burn injuries at 2.15 p.m. the deceased was rushed to PW11, the Doctor at the local hospital at 3 p.m. He examined her and prepared Ext.P9 wound certificate. The alleged cause is narrated in Ext.P9. It is stated very clearly in the narration of alleged cause – dying declaration, that the deceased had suffered burn injuries at the hands of the appellant, her brother. Counsel argues that this cannot be believed. According to the learned counsel, Ext.P9 wound certificate shows that initially the Doctor had begun to write that it was a case of suicidal burning. Later, that was struck off and it was written that the accused had set fire to the deceased. We have carefully gone through Ext.P9 wound certificate. It offers convincing and unassailable indication that the correction was made and the alleged cause was recorded by the Doctor even before completing the earlier line. According to PW11, Doctor, the deceased was brought to the hospital by Saradha, i.e.DW2, the mother in law of the appellant. An attempt was made to state before the Doctor that the deceased had set herself on fire. The Doctor had begun to write this but he felt it necessary to CRL.A.NO.65/2006 -12- ascertain the version from the injured/deceased. He, therefore, recorded the statement in her own words. It is true that he had started to write that it was a case of self immolation('സയ മണ' ). The manner in which the earlier line was written and it was scored off, clearly indicate that before that line was recorded completely, promptly and contemporaneously, correction was made and the present alleged cause available in Ext.P9 was recorded by PW11. Not a semblance of doubt is left in our mind about the acceptability of the oral evidence of PW11 that he ascertained the version from the mouth of the deceased and recorded the same after scoring off the incorrect earlier version given to him by some bystanders. We are satisfied that the oral evidence of PW11 and Ext.P9 can safely be accepted. 19. We now come to circumstance No.4. Ext.P8 F.I.statement was recorded by PW9, Head Constable from the deceased. The incident had taken place on 18-3-2001. The deceased was rushed to PW11,Doctor. She was referred to the Medical College Hospital. Her statement could be recorded only at the Medical College Hospital. It was hence that the statement was recorded on 20-3-2001 by PW9. Ext.P8 is the F.I.statement. CRL.A.NO.65/2006 -13- In Ext.P8 F.I.statement the deceased had given a detailed narration of the circumstances under which she suffered burn injuries. We do not, prima facie, find any reason to disbelieve the oral evidence of PW.9 about the F.I.statement lodged by the deceased before him. But the learned counsel argues that the present narration of the alleged cause in Ext.P8 is not consistent with the subsequent dying declaration given to the learned Magistrate/PW8 in Ext.P7. We have carefully gone through Exts.P8 and P7. We have subjected them to very strict comparison. In Ext.P8, what happened on 18-3-2001 alone is narrated in detail whereas in Ext.P7 to the learned Magistrate, the deceased had explained the circumstances which led to the incident that took place on 18-3-2001. There is no such inconsistency or incongruity between Exts.P8 and P7 which should persuade us to entertain even a semblance of doubt or reservation about the acceptability of Ext.P8 F.I.statement. The fourth circumstance is thus established satisfactorily by the evidence of PW.9 and Ext.P8. 20. The 5th circumstance relied on by the prosecution is Ext.P7 dying declaration given by the deceased to PW8, Judicial CRL.A.NO.65/2006 -14- First Class Magistrate on 21-3-2001 at 3.20 p.m. We have the evidence of PW12, who took over the investigation on 21-3-2001. The deceased had suffered 50% burn injuries. PW12 hence perceived the need to record the dying declaration in an authentic manner. He, therefore, made the necessary requisition and accordingly, PW8 Judicial First Class Magistrate went to the hospital and recorded Ext.P7 dying declaration/ statement of the deceased. PW10, the Doctor was available with PW8 when he recorded Ext.P7 dying declaration. We find that PW10 had authenticated and certified both prior to the commencement of recording of the statement and subsequently after completion of the same, under Exts.P7(a) and (b) that the deceased was having a sound state of mind to give that statement. We have already adverted to the alleged inconsistency/incongruity between Exts.P7 and P8 while discussing circumstance No.4 above. We are satisfied that the 5th circumstance is also proved convincingly by the oral evidence of PW8 and Ext.P7, which is eminently supported by the oral evidence of PW10 and Exts.P7(a) and (b) endorsements made by him. CRL.A.NO.65/2006 -15- 21. The 6th circumstance relied on by the prosecution is that the accused was present at the scene of occurrence. The accused also does not dispute that fact. All the witnesses had spoken about the presence of the accused. Accused also accepted the same. In these circumstances, it is not necessary to advert to those pieces of evidence on this aspect in greater detail. Of course, we note that on the question whether the accused entered the house when the incident commenced there is no specific oral evidence of any witnesses. On this aspect, we have got to rely on the dying declaration of the deceased that the accused had entered her house. This circumstance to the above extent is proved, we hold. 22. The prosecution relied on the circumstance that the accused had offered no explanation as to how the deceased had suffered injuries. The indications suggest that the deceased must have suffered injuries in the presence of the accused. He was present admittedly at least near the venue of the crime. Even though various suggestions have been thrown at the witnesses, we note that the accused has not offered any explanation in his 313 examination as to how the deceased had CRL.A.NO.65/2006 -16- suffered the burn injuries. Even the oral evidence of DWs.1 and 2 does not clearly show any effective alternative manner in which the deceased could have suffered the injuries. There is only a general theory advanced that she may have attempted to commit suicide. 23. The next circumstance relied on by the prosecution is that the accused did not accompany his sister suggesting thereby that he had a guilty mind. It is the common case that the accused did not accompany his sister to the hospital. It is his case that the deceased was taken to the hospital by DWs.1 and 2 as also PW3. The 8th circumstance is thus proved satisfactorily – that the accused did not accompany his sister to the hospital. 24. The prosecution relies on the 9th circumstance that the accused was absconding after the incident. From 18-3-2001. to 2-4-2001 he was not available. At least, we have the clinching evidence of PW.12 to show that he could not trace the accused from 21-3-2001 when he commenced the investigation till 2-4-2001 when he was eventually arrested. This circumstance is also thus established. CRL.A.NO.65/2006 -17- 25. Lastly as the 10th circumstance the prosecution places reliance on the oral evidence of PW2, the Doctor who conducted postmortem examination that the nature of the burn injuries suffered do broadly suggest that it was not a self inflicted burn injury. The learned counsel for the appellant stoutly contest this circumstance and points out that the evidence of PW2 clearly shows that he cannot rule out the possibility of the injury being caused to herself by the deceased. We must hold that both possibilities do exist as per the evidence of PW2 and it is not possible to rule out one possibility and agree and accept the other completely. The proof of the 10th circumstance to this extent is not conclusive. 26. Having so considered the circumstances, the only question that remains is whether these circumstances are sufficient to uphold the verdict of guilt and conviction. We shall initially consider the other circumstances, i.e. other than the dying declarations. If the dying declarations were to be accepted, there can be no semblance of doubt that the accused is guilty. The learned counsel for the appellant argues that the deceased/appellant’s sister had a motive against the appellant CRL.A.NO.65/2006 -18- and in these circumstances implicit acceptance of the dying declaration without due care and caution should not be made. According to the appellant, the deceased had an illicit relationship with PW.1 and others and the appellant had taken objection to such conduct. This is what allegedly prompted the deceased to make such a false statement against him in the dying declarations allegedly made by her. 27. We shall deal with the dying declarations in detail later. We do note that the accused was present near the scene of occurrence. The theory that the deceased had suffered burn injuries in an attempt made by her to commit suicide is not offered by her or by any other at the scene of the crime. That circumstance is certainly reckoned by us as important in the totality of circumstances available in this case. Ext.P9 indicates that an attempt was made by someone who accompanied the deceased to PW11 to make it appear that it was a case of suicidal burn injuries. But it is crucial to note that no evidence has been tendered on that aspect. The cross examination of PWs.1,3 and 4 or any other person does not reveal any indication to suggest that the deceased had attempted to commit suicide. At or near CRL.A.NO.65/2006 -19- the scene of occurrence, such a version does not appear to have been advanced by any one and the same is reckoned by us as important. We do also note that the accused in 313 examination has not chosen to offer any such explanation. He did not also accompany the sister to the Doctor. That circumstance by itself cannot be reckoned as crucially important because either way there was bad blood between the accused and the deceased, her sister. We have also indications to show that the appellant had attempted to douse the fire and also to arrange to take the deceased to the hospital. In such circumstances, we are satisfied that his conduct of not accompanying his sister cannot be reckoned as crucially or vitally relevant or important. The fact that he attempted to douse the fire after she suffered the burn injuries cannot at all convincingly contra indicate the overt act alleged against him. After all, blood is thicker than water. After setting fire to her, if he found the desperate situation in which his sister was after suffering the injuries and attempted to douse the fire in the presence of others, that cannot certainly be reckoned as convincing contra indication of his culpability. We do further take note of the circumstance that the accused was CRL.A.NO.65/2006 -20- absconding till 2-4-2001. That again is, in the circumstances of the case, an indicator pointing to the culpability of the appellant- accused. 28. The appellant-accused has relied on the oral evidence of DWs.1 and 2. Both of them did not explain how the deceased must have suffered injuries. They have no case that the deceased after suffering the injuries had at any time revealed that she had inflicted the burn injuries on herself. In these circumstances, the evidence of DWs.1 and 2 is certainly not sufficient to tilt the scales in favour of the appellant or to obliterate the weight of evidence of the circumstances relied on against the appellant by the prosecution. 29. The crucial and the final question to be considered is whether the dying declarations can be accepted. We are satisfied that the dying declarations have been made by the injured/deceased. They are legally admissible also under Section 32 of the Evidence Act. Whether they can be accepted or not is the short question, that remains. The learned counsel for the appellant submits that the alleged dying declarations to PWs.1, 3 and 4, the dying declaration to PW11 in Ext.P9 and the dying CRL.A.NO.65/2006 -21- declaration to PW9 in Ext.P8 cannot be reckoned as statements made in anticipation of death. The counsel readily accepts that law in