IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 CRL.A.No. 280 of 2005() ----------------------- (S..C.NO.169/2004 OF IIIRD ADDL.SESSIONS COURT (ADHOC) FAST TRACK COURT NO.1, THRISSUR C.P.NO.12/2004 OF THE J.F.C.M.'S COURT NO.II, THRISSUR) .................... APPELLANT/ACCUSED: ----------- JOSE S/O. EDASSERY THOMAS, CONVICT NO.1191, CENTRAL PRISON, KANNUR. BY ADV. SRI..T.D.ROBIN SRI.R.ANUP RESPONDENT/COMPLAINANT: ------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.JAI GEORGE. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- CRL.APPEAL NO.280/2005-A ----------------------------------------- Dated 17th September, 2008. JUDGMENT Balakrishnan Nair, J. The appellant was the accused in S.C.No.169/2004 on the files of the Third Additional Sessions Judge (Adhoc), Fast Track Court No.I, Thrissur. The trial court found him guilty of the offences under Sections 302 and 307 of the I.P.C and sentenced him to undergo imprisonment for life and rigorous imprisonment for three years respectively for those offences. Aggrieved by the above conviction and sentence, the accused has preferred this criminal appeal. 2. The brief facts of the prosecution case are the following: The deceased Kochuthressia was the wife of the appellant/accused. Along with them, their daughter PW3 and son-in-law PW5 were also residing with their two children. The accused was harbouring doubts that Kochuthressia was having illicit relationship with their son-in-law. CRA 280/05 2 Further, the accused, who was sex hungry, was unhappy with his wife for not permitting him to have sex with her as desired by him. Impelled by those reasons, the accused, on the early hours of 23.12.2002 poured petrol on her body and set fire to her. She suffered 92% burn injury. She was taken to the Jubilee Mission Hospital, Thrissur at about 3.40 a.m on 23.12.2002. She succumbed to the burn injuries at 2.15 p.m on 24.12.2002. Based on the first information statement Ext.P4, lodged by PW3, the daughter of the accused, a crime was registered for the offence punishable under Section 307 of the I.P.C. Later, as per Ext.P14 report, the offences under Sections 308 and 498A were also added. On her death, the offence under Section 307 was deleted and the offence under Section 302 was added, as per Ext.P16 report. The accused was arrested on 24.12.2002 by PW17, the Circle Inspector of Police. The said officer prepared the scene mahazar. He conducted the inquest, prepared Ext.P7 inquest report, questioned the witnesses and completed major part of the investigation. His successor-in-office PW16 completed the investigation and filed the final report before the Judicial First Class Magistrate's Court – II, CRA 280/05 3 Thrissur. The learned Magistrate committed the case for trial by the Sessions Court, which in turn was made over for trial to the Third Additional Sessions Court (Adhoc), Fast Trick Court No.I, Thrissur. 3. The appellant was charged for murdering his wife Kochuthressia and attempting to murder his grand daughter, who was sleeping with his wife. From the side of the prosecution, P.Ws. 1 to 18 were examined and Exts.P1 to P23 were produced. Material objects MO1 to MO5 were also produced and marked. The accused was questioned under Section 313 of the Cr.P.C. He denied the circumstances against him, appearing in the evidence, which were put to him. He also filed a statement under Section 313, saying that the burn injury was caused by accident. His wife used to sleep, keeping a burning kerosene lamp by her side. On the fateful day, she sustained the burn injury from the said lamp. When he attempted to take her to the hospital, their son-in-law drove him away. Later, when he was on his way to the hospital, he was arrested by the police. 4. The learned Additional Sessions Judge after considering the rival submissions and adverting to the evidence on record, found the CRA 280/05 4 appellant guilty of the offences under Sections 302 and 307 of the I.P.C and imposed the sentence mentioned earlier. 5. The learned counsel for the appellant took us through the evidence on record, including the depositions of the witnesses. It is submitted on behalf of the appellant that there is no direct evidence to show that it was the accused who committed the offence. P.Ws.3, 5, 6 and 7 saw only the accused going out of the house immediately after the occurrence. The learned counsel further submitted that their depositions would show that they have not actually seen the incident. The only circumstance spoken to by them is their seeing the accused going out of the house. The same is not sufficient to find the accused guilty. The learned counsel also relied on Ext.P23 wound certificate proved through PW18 doctor. The same would show that the son-in- law PW5, who admitted the deceased in the hospital, told the doctor that she suffered accidental burn from a kerosene lamp. The said doctor further stated that if the injured was in a fit condition to answer the questions put to her, normally, her version would be recorded. In this case, the version given by the son-in-law of the deceased was recorded. CRA 280/05 5 So, it can be assumed that the deceased, at the relevant time, was unconscious. The said fact casts serious doubt on the veracity of the dying declaration stated to have been given by the deceased, it is submitted. It is pointed out that the Nurse who attested the dying declaration was not examined in this case. If the deceased was conscious at the time of admission, the history of the wound given in Ext.P23 can be taken as one given by the injured herself. If that be so, her version in the dying declaration, which is at variance with the version given to the doctor, has to be viewed with caution. In view of the above circumstances, the learned counsel for the appellant submitted that the appellant is entitled to get the benefit of doubt. 6. The learned Public Prosecutor on the other hand, submitted that no one could have witnessed the incident, as the accused committed the crime during the odd hours of the night and at that time every one else was sleeping. On hearing the cries of the injured, P.Ws.3 and 5 came running and both of them have seen the accused going away. Those witnesses also cried aloud and P.Ws.6 and 7, who were residing in the neighbourhood came to the scene. They also saw CRA 280/05 6 the accused going away from the house. So, according to the learned Public Prosecutor, the fact that when the wife is lying injured seriously in the house, her husband is going away without attempting to take her to the hospital, is an important circumstance against the accused. The accused in his statement under Section 313 Cr.P.C., has stated that his wife suffered the burn injuries from a kerosene lamp. But, Ext.P15 chemical analysis report would show that MO1 mat and MO3 plastic bottle contained petrol and kerosene was not detected in any of the material objects sent for chemical analysis. So, the version given by the accused in his statement under Section 313 that the deceased suffered the burn injuries from the kerosene lamp kept in the room where she was sleeping, is false. The said false version is yet another circumstance which would point an accusing finger against the accused, it is submitted. The learned Public Prosecutor also pointed out that the grand child of the deceased also suffered some minor burn injuries, as evident from Ext.P9 wound certificate, proved through PW11. The motive for the murder has also been spoken to by PW3 in her F.I. Statement Ext.P4. Mention is made about the cause of ill-will CRA 280/05 7 of the accused towards the deceased. The accused was harbouring doubts that the deceased was having illicit relationship with their son- in-law (PW5). P.Ws.3 and 5 have also spoken to that the accused was very much aggrieved by the conduct of the deceased in not co- operating with him for sexual intercourse. So, the prosecution has proved the motive also, points out the learned Public Prosecutor. Therefore, the learned Additional Sessions Judge has rightly found the accused guilty and so, the appeal is liable to be dismissed, it is contended. 7. Before dealing with the rival submissions, we will refer to the evidence of the witnesses. PW1 is the doctor, who recorded Ext.P3 dying declaration of the deceased Kochuthressia in the Jubilee Mission Hospital. The deceased has stated in her dying declaration as follows: On the date of incident there was quarrel between her and her husband. He does not go for any work. He quarrelled stating that she was having illicit relationship with their son-in-law. He threatened to kill her. She replied, he may do that. She went to sleep at 10 O'clock. She woke up when fire started burning her body. Her daughter told her CRA 280/05 8 that she saw her husband going out of the house. Her husband must have set fire to her. She does not doubt anyone else. This statement was recorded at 8.15 a.m on 23.12.2002 by PW1. The said witness in her cross-examination has stated that the state of mind of the injured was found to be clear and she was speaking fluently. She denied the suggestion of the defence that owing to the 92% burn injury and administration of morphine, the patient may not be conscious. 8. PW2 is the witness to Ext.P21 mahazar for seizing Ext.P1 case sheet concerning the treatment of the deceased in Jubilee Mission Hospital. 9. PW3 is the daughter of the deceased. She fully supports the prosecution case. She has stated, inter alia, as follows: The incident took place at 3 a.m on 23.12.2002. In the central room(hall) the deceased was sleeping with her grand daughter. In another room, the witness was sleeping with her husband and younger child. In the bedroom on the eastern side of the central room, her father was sleeping. She woke up hearing the cries of her mother. She came to the hall. There was full of smoke there. There was fire on her mother. CRA 280/05 9 She saw her father opening the door on the kitchen side and rushing out. She saw her daughter standing by the side of the wall in the hall. Near the pillow, there was a bottle. She along with others extinguished the fire. Her husband also woke up and came. They opened the door. People of the locality came. The children were taken out and entrusted to the neighbours. Mother came to the veranda and sat. By that time, the fire was extinguished. M/s.Velayudhan, Chandran and others came there and her mother was taken to the Mission hospital in an autorickshaw. There was a slight burn on the left thigh of her daughter. The above fact was noticed when she returned from the hospital after admitting her mother. Her daughter was not taken to the hospital immediately. She was taken only after the death of her mother. Her mother was engaged in manufacturing sweetmeats. The products were given to the shops. After the day's work by 10 O'clock, she will go to bed. Father used to invite her mother to have sex with him. Since the mother did not oblige, the same resulted in quarrel between them. The production of sweetmeats was done by her, her husband and mother. Father was not allowed to associate with the business. For that also CRA 280/05 10 there was quarrel. Father was doubting that mother was having illicit relationship with her husband. On the date of occurrence, that is on 23.12.2002, father quarrelled with mother. On the morning also, there was quarrel between them. On the previous day, father pulled the leg of her mother while she was sleeping and persuaded her to sleep with him. Since the mother did not oblige, there was quarrel. Father shouted that he will kill her. He used to threaten like that always. He used to say “I will burn you and you will die with my hands”. Mother used to reply “Let it be so”. Father said “for my requirement, where I should go”. Mother replied that it is left to his decision. The house was not electrified. When mother was being taken to the hospital, father was seen on the side of the road. He was running. Thereafter, he was not seen. She gave statement before the police. She signed in Ext.P4 F.I. Statement. When mother was taken to the hospital, she was almost completely burned. Her clothes were also burned. She was admitted in the I.C.U of the hospital. At that time, the mother was in a condition to talk to others. She stated that father has done this to kill her. The witness has stated about this to the Magistrate. She has signed Ext.P5 CRA 280/05 11 statement recorded by the Magistrate under Section 164 of the Cr.P.C. She identified MO1 burned portion of the mat, which was used by the mother for sleeping. She also identified MO2 frock worn by her daughter. MO3 burned plastic bottled was also identified. 10. The witness was extensively crossed by the defence. But, we find that nothing has been brought out in the cross-examination to discredit her evidence. 11. PW4 is the elder daughter of the accused/appellant. She stated that she was residing with her husband at Ollur. She has got two children. PW3, her younger sister, was residing with her parents (accused and the deceased). Her father was engaged in the business of sweetmeats some time back. He used to supply to the shops “Achappam” and “Kuzhalappam”. After the marriage of her 3rd sister, there was change in the conduct of her father. He started disliking their mother. Business ended in loss, so the work was stopped. After sometime, about one year back, PW3 and her husband were entrusted with the responsibility to look after their parents. PW3 and her husband re-started the work of manufacturing sweetmeats. Mother CRA 280/05 12 used to assist them. But father (accused) was not co-operating with them. He was not permitted to associate with the business also. Mother died on 24.12.2002. The message was conveyed to her through phone from the hospital in the early morning at about 3.30 a.m. At first, her husband went to the hospital. After half an hour, she also went. Earlier she has met her mother while she was in the I.C.U. The witness asked her mother what happened to her. She told her that there were frequent quarrels and there was quarrel on the night of that Saturday also. Father told her mother to come and sleep with him. But mother did not go. Next day morning, there was quarrel between them about the above incident. When mother was sleeping father set fire to her. Mother told her that father was found rushing out from the room. There were quarrel between them based on sexual problems. There were also quarrels regarding the production of sweetmeats. Father was doubting the husband of PW3. There were quarrels on that ground also. There was itching on the legs of mother. She did not have any other ailment. She was taken to a dermatologist. The witness has taken her mother to two doctors. They told her that the disease was due to tension. The CRA 280/05 13 doctor told her to bring her father also. Then she asked all the details and she was told that her father will not allow her mother to sleep during the night. During day time, she has to work. During the night, the father will flash the torch light on her face. He would not allow her to sleep. This witness was cross-examined by the defence. In the cross-examination she stated that her mother was completely burned and she appeared like a piece of flesh. She also added that mother used to talk to her occasionally. She denied the suggestion that she was stating falsehood to get rid of her father. But, nothing has been brought out in her cross-examination to discredit her version before the court. 12. PW5 is the husband of PW3 and the son-in-law of the deceased and the accused. He married PW3 about 8 years back. He started living in his wife's house about 2 years prior to the incident. Later, they shifted to Thachampilli where all of them were residing. They started residing in the present house about two months back. He is a coolie worker. Initially, the business in sweetmeats was run by the father and mother. Since the business ended in a loss, the father stopped the business. Thereafter, the witness shifted his residence to CRA 280/05 14 run the sweetmeat business along with his wife and her mother. He along with his wife would sleep in one bed room. The mother along with the elder daughter would sleep in the hall. Father used to sleep in a different bed room, which is on the eastern side of the hall in which the mother was sleeping. There are no doors between the said two rooms. There was a door on the side of the kitchen. On the date of incident, the witness and her wife were sleeping. They woke up hearing the cries at about 2.30 a.m. and 3.a.m. When they came, they saw that the mother was engulfed by fire. There was smoke all around. On seeing him, father ran away through the kitchen. The witness opened the door and removed the children from the building and ran to the hall. People came there and the fire was extinguished. The mother was taken to the hospital by him and his wife in an autorickshaw. He felt the smell of petrol. Initially, there was no problem between the father and mother. Occasionally, there were quarrels. From their quarrel, he understood that father was aggrieved by the refusal of mother to oblige his sexual demands. For not associating father with the sweetmeat business also, he was harbouring ill-will. Father used to say he was CRA 280/05 15 having doubts about the witness. On that day, there was quarrel in the early morning. Father told the deceased that she should satisfy his requirements and she should come and sleep with him. Mother retorted saying that she is aged and infirm and therefore she cannot oblige him. The daughter of the witness was injured in the incident. There was an injury on her leg. A portion of her cloth was also burned. He has identified that burned cloth which was marked as MO2. At the time of admitting the deceased in the hospital he told the doctor that burn was caused by a kerosene lamp. Apprehending that she may not be admitted in the hospital and sent home, it was so stated. 13. In the cross examination he denied the suggestion that he has beaten and driven away the accused. He has also stated that there was burn injuries all over the body of his mother-in-law and the clothes were also burned. She occasionally talked also. But the witness admitted that he has not talked in person to the deceased while she was admitted in the hospital. His statement before the Magistrate was marked as Ext.P6. Practically, nothing has been brought out in the cross examination to disbelieve the version given by him in the chief CRA 280/05 16 examination. 14. PW6 is the next door neighbour of the accused. He knew the deceased Kochuthressia. He saw the incident. He was sleeping. Hearing the cries at about 2.30 a.m. he opened the door and came out. He saw the accused running through the road, which is by the side of his house. He saw the fire engulfing the deceased. He also heard the curse of the deceased loudly stating about the incident. He arranged an autorickshaw for taking the injured to the hospital. Practically, there was no effective cross examination of the witness with reference to the material points deposed by him. 15. PW7 is another neighbour of the accused. He saw the deceased engulfed by fire. He also saw the accused going in the eastern direction at the relevant time. He asked the accused as to what happened. But, he did not utter a word. This witness was also not cross examined by the defence with reference to the material points submitted by him. PW8 is a witness of Ext.P7. PW9 is a witness to Ext.P8 scene mahazar. 16. PW10 is an employee of a petrol bunk. He was examined CRA 280/05 17 to show that the accused purchased petrol from the bunk in a bottle. But, he turned hostile to the prosecution as he failed to identify the accused while in the witness box. But, he has admitted that he has given one litre petrol in a plastic bottle on the afternoon of the fateful day. 17. PW11 is the doctor, who examined the Shima, the daughter of PW3 and PW5 and issued Ext.P9 wound certificate. 18. PW12 is the doctor, who conducted the autopsy and issued Ext.P10 post-mortem certificate. As per the said certificate the cause of death is burn injuries. The chemical analysis report was also marked as Ext.P11. As per the report no poison was detected in the viscera and blood. Traces of mineral oil were detected on the scalp heirs. 19. PW13 is the Village Officer, who prepared the scene plan which is marked as Ext.P12. PW14 is the Head Constable, who recorded Ext.P5 F.I. Statement. 20. PW15 was the Assistant Sub Inspector of Police at the relevant time, who registered crime No.408/2002 under Section 307 of the I.P.C. against the accused, as per Ext.P13 F.I.R. CRA 280/05 18 21. PW16 is the Circle Inspector of Police, who completed the investigation and laid the charge before the Judicial First Class Magistrate's Court-II, Thrissur. He filed Ext.P14 report, including the offences under Sections 498A and 308 I.P.C in the crime case. Ext.P15 chemical analysis certificate was also marked. The said report would show that on items 1 and 2 (partly burned plastic mat and partly melted plastic bottle) petrol was detected. Ext.P15 report also would show that there was not presence of kerosene in the material objects. 22. PW17 is the Circle Inspector of Police, who conducted major part of the investigation. 23. PW18 is the doctor, who prepared Ext.P23 wound certificate concerning the deceased. The said certificate was issued by Dr. T.Venkitesh. Since the presence of the said witness cannot be procured, PW18, who can identify the signature of Dr.Venkitesh in Ext.P23 was examined. The said wound certificate would show that 2nd to 3rd degree burns were there all over the body of the deceased. The total extent of burn injury would come to 92%, as per the said certificate. The said injury was sufficient to cause death in the ordinary CRA 280/05 19 course. 24. In the light of the above evidence on record, we will consider the rival submissions made at the Bar by the learned counsel for the appellant and learned Public Prosecutor. The petitioner has been found guilty of the offences under Section 307 of the I.P.C., for having attempted to murder the daughter of PW3. We notice that there is no evidence on record to show that the accused attempted to commit murder of CW3, the daughter of PW3. In fact, in the F.I. Statement given by PW3, she clearly deposed that the child was removed first, before the accused set fire to Kochuthressia, the deceased. There is no case for the prosecution before the trial court that the accused attempted to murder his grandchild. In the judgment under appeal also, there is no discussion regarding the charge under Section 307 I.P.C levelled against the accused for attempting to commit murder of his grand child. But, the learned Additional Sessions Judge found the accused