IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 19TH JUNE 2008 / 29TH JYAISHTA 1930 CRL.A.No. 1052 of 2004-A ------------------------ SC.212/1999 of ADDL. SESSIONS COURT (ADHOC-II), THIRUVANANTHAPURAM CP.7/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... APPELLANT: IST ACCUSED. MOHAMMED HANEEFA, S/O.MEERAN PILLAI, BLOCK NO.10, SASTHAVATTOM PATTOM COLONY, CHILAMBIUL DESOM, AZHOOR VILLAGE. BY ADV. SRI.KOTTOOR B.GOPALAKRISHNA PILLAI SRI.R.T.PRADEEP SRI.V.VIJULAL SRI.J.S.AJITHKUMAR RESPONDENT: COMPLAINANT. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2008, THE COURT ON 19/06/2008 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ. ============================== CRL.A. NO. 1052 OF 2004 ============================ Dated this the 19th day of June 2008 JUDGMENT Hari Rani,J. The appellant, who is the first accused in S.C.No.212/1999 on the file of the Additional Sessions Court(Adhoc-II), Thiruvananthapuram, has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.50,000/- and in default of fine to undergo rigorous imprisonment for one year. The said judgment is under challenge in this appeal. 2. The prosecution case is summarised as follows:-Subaida Beevi, the daughter of PW1 died while undergoing treatment in the Medical College Hospital, Thiruvananthapuram at about 6 p.m. on 4-6-1998. The appellant herein is the husband of Subaida Beevi and they were residing together in Shameer Manzil in Block No.8, Sasthavattom Pattom Colony along with their two children. The appellant/first accused was on inimical terms with his wife Subaida Beevi on account of her refusal to accede to his CRL.A.NO. 1052/2004 -2- demand for sale of the property in her name to pay off his debts and to purchase property in his name. Owing to that enmity and with the intention to cause her death and with the knowledge that his act would certainly cause her death, the first accused beat on her cheek with his hands and pushed her down at the hall of their house at about 10.30 a.m. on 2-6-1998 while their children were away in connection with their studies. The first accused thereafter closed the door of the house and tied her limbs and poured kerosene over her body, set fire with a match and closed her mouth when she cried aloud. When the knots of her legs and hands broke due to fire, she jumped out and ran to the nearby well and PW6 caused to extinguish the fire by pouring water on her body. Subsequently she was taken to the Medical College Hospital, Thiruvananthapuram where she succumbed to the burn injuries at about 6 p.m.on 4-6-1998 while undergoing treatment there. The second accused is the brother of the first accused. Both the accused in furtherance of their common intention to make others to believe that Subaida Beevi sustained burn injuries accidentally from the stove, put the parts of a CRL.A.NO. 1052/2004 -3- stove in the scene of occurrence and destroyed the evidence and thereby both the accused committed the offences under Sections 302 and 201 read with Section 34 of the Indian Penal Code. 3. The first accused informed about the death of Subaida Beevi to PW15, the Assistant Sub Inspector, Chirayinkeezh, on 5-6-1998 at about 10.30 a.m.and gave the F.I.S., Ext.P8, which was recorded by PW15. On the basis of Ext.P8, Crime No.110/1998 was registered as per the F.I.R., Ext.P8(a) for unnatural death of deceased Subaida Beevi. The preliminary investigation of the case was conducted by PW16, the Sub Inspector of Police, Chirayinkeezh police station. Further investigation was conducted by PW17, the Circle Inspector of Police of Chirayinkeezh police station who laid the charge against accused 1 and 2 with the allegation that accused 1 and 2 are guilty of committing the offences punishable under Sections 302 and 201 read with Section 34 I.P.C.before the Judicial First Class Magistrate, Attingal. The learned Magistrate committed the case to the Sessions Court,Thiruvananthapuram as per order in CRL.A.NO. 1052/2004 -4- C.P.No.7/1999. The learned Sessions Judge made over the case to the first Additional Sessions Court,Thiruvananthapuram for trial and subsequently that case was withdrawn from there and made over to the Court of Additional Sessions Judge(Adhoc-II), Thiruvananthpauram. 4. The appellant pleaded not guilty to the charges. To substantiate the charges against him, the prosecution examined PWs. 1 to 17 and marked Exts.P1 to P14. Mos.1 to 7 were also marked. Both the accused denied the allegation in toto. The appellant/first accused when examined under Section 313 Cr.P.C. stated that he is innocent. The first accused has filed a statement also before the lower court wherein he has stated that he was abroad for about 4 ½ years and was doing coolie work there and came to the native place about 37 days prior to the alleged incident and was maintaining his wife and children properly. Further he never harassed his wife mentally or physically and a false case was foisted against him after his arrest on 6-6-1998 at the instance of the brothers of his deceased wife in collusion with the police. It was also stated that in the CRL.A.NO. 1052/2004 -5- morning on 2-6-1998 while he was gathering firewood from the coconut tree in the courtyard of their house, he heard the cry of his wife “ .” ” Then he tried to rescue her by pouring water on her body. Thereafter she was taken to the Medical College Hospital, Thiuvananthapuram, where she succumbed to the burn injuries. Based on the said contentions, the first accused pleaded innocence. To support the said case, no evidence has been adduced on his side. 5. The learned Additional Sessions Judge considered the evidence on record and found the first accused guilty of the charge under Section 302 I.P.C.and he was sentenced to undergo imprisonment for life and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year. The 2nd accused was found not guilty of all the charges and was acquitted. 6. The prosecution has mainly relied on the evidence of PWs.1,5,6,7,11 and 14 to support their case. 7. The learned counsel for the appellant submitted that the evidence of PW1, the mother in law of the first accused cannot be CRL.A.NO. 1052/2004 -6- relied on as she was not in good terms with the first accused. The evidence of PW14, daughter of the first accused cannot be believed because she was of tender age and a tutored witness, who gave evidence as instructed by PW1, who has got enmity towards the first accused. According to the learned counsel for the appellant, Subaida Beevi sustained burn injuries due to accidental fall of burning stove with kerosene on her body as stated by the deceased to PW3, the Doctor at Medical College Hospital, Thiruvananthpauram who examined the deceased Subaida Beevi on 2-6-1998 at 12.40 p.m. and issued the wound certificate, which is marked as Ext.P2. The presence of the first accused at the place of alleged incident at the relevant time is not at all established beyond reasonable doubt. It is also argued by the learned counsel for the appellant that PW3, the Doctor, at the Medical College Hospital, Thiruvananthapuram, who examined the deceased Subaida Beevi on 2-6-1998 at 12.40 p.m. has noted the cause of injury in Ext.P2 wound certificate as the accidental fall of kerosene over the body, as stated by the patient, in her house by 11.30 a.m. on the said day. The deceased was examined by CRL.A.NO. 1052/2004 -7- the said Doctor,PW3, at 12.40 p.m.as evident from the notings in Ext.P2. PW3 has testified that on examination it was noted that the patient had 75% superficial and deep burns and the cause of injury was narrated to him by the patient herself. The non-mentioning of the name of the first accused by the patient, the deceased Subaida Beevi, at the earliest point of time to the Doctor who examined her from the Medical College Hospital, Thiruvananthapuram was highlighted by the learned counsel for the appellant. At that time the victim was conscious and the non-mentioning of the culprit in such a situation is fatal to the case of the prosecution. The learned counsel for the appellant also contended that the evidence on record may raise a suspicion regarding the involvement of the first accused in the alleged incident, but based on that suspicion, no criminal liability can be fastened on the first accused. Upon the said contention the learned counsel for the first accused prays for extending the benefit of doubt in favour of the first accused and to pass an oder of acquittal. 8. The learned Public Prosecutor submitted that the incident CRL.A.NO. 1052/2004 -8- took place in the hall of the house at 10.30 a.m.on 2-6-1998. At that time their children were not there and only the first accused and his wife Subaida Beevi were present in that house. Their daughter, PW14 came there only after the incident. According to the learned Public Prosecutor, the evidences of PW1, the mother of the deceased and PW14, the daughter of the first accused and the deceased, are fully reliable and acceptable. The medical evidence proves that the victim died out of the burn injuries. The post mortem certificate, Ext.P3 also reveals that the death of the deceased Subaida Beevi was due to infection following burns of 85%. Therefore, the guilt of the first accused stands established beyond reasonable doubt and his conviction is liable to be sustained, submits the learned Public Prosecutor. 9. Now the point for consideration is whether the prosecution has succeeded in proving the guilt of the first accused in committing murder of his wife, Subaida Beevi. It is true that there is no occurrence witnesses in this case. The Prosecution has mainly relied on the evidence of PWs.1,5,6,7,11 and 14 to prove the guilt of the accused 1 and 2. According to CRL.A.NO. 1052/2004 -9- the defence, PW1 was not in good terms with the first accused, her son-in-law and therefore false implication of the first accused cannot be ruled out. PW1 when examined before the lower court did not show any enmity towards the first accused. So also no enmity whatsoever has been attributed by the defence side towards PW1 while she was in the witness box. No such suggestion was put to PW1 during cross examination by the learned defence counsel. 10. It is pertinent to note that the first accused when examined under Section 313 Cr.P.C. and in the statement filed by him before the court below during examination under Section 313 Cr.P.C. did not allege about any kind of animosity experienced by him from his mother in law,PW1 or from his daughter, PW14. Instead he has stated that his brothers-in-law have implicated him in the present case which was concocted subsequently against the first accused after the death of his wife and while he was in judicial custody from 6-6-1998 onwards. The prosecution has alleged that the first accused was not in good terms with his wife,the victim, and he used to ill-treat her prior CRL.A.NO. 1052/2004 -10- to the incident. The fact that the first accused used to quarrel with the deceased is also testified by PWs.1 and 14. PW14, the daughter of the first accused and the deceased supported the prosecution case. There is no reason why his own daughter should give false evidence against the first accused. Thus the animosity alleged and suggested against PW1 by the appellant's counsel is not substantiated. The first accused has got a grudge towards the deceased is proved from the testimony of PW1. The reason was that the deceased refused the demand made by the first accused to sell the property in her name to pay off the debt of the first accused. This also is a circumstance supporting the case of the prosecution that the first accused has a motive to kill the deceased. Therefore, that contention of the learned counsel for the appellant that the evidence of PWs.1 and 14 cannot be relied on is devoid of any merit. 11. The deceased Subaida Beevi died due to burn injuries sustained on her body as revealed from the wound certificate and the post mortem certificate,Exts.P2 and P3. The cause of death of the deceased Subaida Beevi is not at all disputed in the instant CRL.A.NO. 1052/2004 -11- case. She sustained 75% of burn injuries as revealed from Ext.P2,wound certificate, and the testimony of PW3, the Doctor who examined Subaida Beevi immediately after the incident, at the Medical College Hospital, Thiruvananthapuram. In Ext.P3 post mortem certificate also the opinion as to cause of death was noted as “Death was due to infection following burns affecting approximately 85% of burns”. She sustained burn injuries on her body by pouring and burning of kerosene has also not been disputed. According to the defence, it was accidental and not homicidal. The learned counsel for the appellant argued that it accidentally happened from the kerosene stove which is marked as MO.1. The scene of occurrence as evident from Ext.P7 scene plan is in the hall of the house and not in the kitchen which is on the western side of that house. The Village Officer who prepared Ext.P7 scene plan was examined as PW12. Nothing has been elicited by the defence side to discard the testimony of PW12 regarding the place of incident shown in that plan. In such circumstances, the possibility of falling of kerosene from the stove on the body of the victim, which according to the defence CRL.A.NO. 1052/2004 -12- was from the kitchen of the house is remote and cannot be believed. This can only be a concocted story. So, the presence of the stove in the scene of occurrence either in the dismantled position or as produced before the court in such form as MO.1 is irrelevant. 12. The witnesses, who were examined as PWs.5,6 and 7, are the neighbours of Subaida Beevi and all of them had deposed that she came out from her house through the door of the kitchen crying that she is being killed. They further deposed that after some time of putting out the fire on the body of Subaida Beevi by pouring water from the well by PW6, the first accused came out of the house with an empty pot. It was also deposed by PWs.5 and 6 that when they enquired about the incident, the first accused gave inconsistent explanation to them that he was gathering firewood, that he was sleeping and that he was in the latrine etc. 13. Another circumstance relied on by the defence before the court below and this Court was that Subaida Beevi had not disclosed the circumstances in which she sustained the burn CRL.A.NO. 1052/2004 -13- injury, to anybody before 6 p.m.on 4-6-1998, the day on which she succumbed to the injuries, in spite of the fact that PW1, her mother was with her from the evening of 2-6-1998. It has come out in evidence that the appellant agreed to take the deceased to the hospital only on her agreeing not to tell the real reason for the burn injury on her body. She gave the first statement before the doctor regarding the cause of injury in the presence of the appellant and his relatives. Later, when she and her mother were alone, she disclosed the correct facts. The reason for not disclosing it earlier was because of the presence of the appellant or his relatives. During the last hours of her lifetime the deceased had voluntarily disclosed that she sustained burns at the instance of the first accused. When it was disclosed by the deceased to PW1, her mother, nobody else was there. Thus the involvement of the first accused in the crime was disclosed by the deceased herself at about 5 p.m. on 4-6-1998 and within a short time she died. This aspect was disclosed by PW1 when she was questioned by the investigating officers, PWs.16 and 17. On completion of the investigation, they filed the charge sheet CRL.A.NO. 1052/2004 -14- against the accused 1 and 2 under Sections 302 and 201 read with Section 34 I.P.C. During the investigation, two reports which are marked as Exts. P10 and P12 were also filed. The first accused also sustained burn injuries to his right hand which was proved through Ext.P1 and the oral testimony of PW2, Civil Surgeon, P.H.Centre, Vakkom, who examined the accused on 18- 6-1998 and noticed the burned scars on the right hand of the accused. The age of the wound was also noted as two weeks. According to the learned counsel for the appellant, he suffered burns when the appellant attempted to rescue the life of his wife Subaida Beevi. If it was so, the first accused would be there along with the victim, when she was found by PW6 near the well. So, the absence of the first accused at that time and his subsequent appearance with an empty pot in his hand points to his guilt. The prosecution case that the victim managed to escape from the clutches of the first accused who set fire to her body after pouring kerosene and in that attempt the first accused also sustained burn injury to his right hand, is proved beyond reasonable doubt. The evidence of PWs.5 to 7 that the victim CRL.A.NO. 1052/2004 -15- was taken to the hospital only after the arrival of others is also another circumstance against the first accused, which cannot be expected from a loving husband. PWs.1,5 to 7 and 14 were cross-examined at length by the defence counsel. But their evidence stands unshaken. PWs.1 and 14 gave evidence before the lower court in tune with the statements they gave to the police. PWs.6 and 7 consistently stated that they heard the cry of the deceased “ “ ( I am being killed) and they went to the scene immediately. PW14 was aged 17 years when she was examined and she gave evidence without giving any room to shake her credibility. She has specifically stated that her father used to quarrel with her mother and also beat her repeatedly. She also stated that subsequent to the incident, the first accused threatened her that he will kill her also as was done to her mother. Thus the evidence of PWs.1 and 14 is sufficient to prove that it was the first accused who set fire to the body of his wife Subaida Beevi causing severe burn injuries, which resulted in her death. The medical evidence also corroborates the evidence of PWs.1 and 14, as stated earlier. CRL.A.NO. 1052/2004 -16- 14. The learned counsel for the appellant has relied on two decisions in support of his case, i.e. Sanjay v. State of Maharashtra, 2007 Crl.L.J.1801 and Kamala v. State of Punjab, 1993 Crl.L.J.68. In both of these cases there were more than one dying declaration of the deceased and it was held that the accused in those cases were entitled to the benefit of doubt, in view of the contradictions in the dying declarations. The facts of those cases are different from the facts in the instant case. It is true, the injured has given two versions regarding the reason for the injury. The first was that the injury was caused due to the accidental fall of the burning stove and kerosene on her body. This is what is stated by her to the doctor. Later, when she was alone with her mother, she disclosed that she suffered the injury at the hands of the appellant. As mentioned earlier, there is evidence on record to show that she was taken to the hospital only on her agreeing not to disclose the reasons for the injury. Since the appellant or his relatives were always present, the deceased did not get a chance to disclose the real reason for the injury suffered by her. At the earliest opportunity, she told CRL.A.NO. 1052/2004 -17- her mother regarding the reason for the injury, as the actions of the first accused. Though there is conflict between the two versions of the injured, the reason for the conflict has been cogently explained by the prosecution. Rather, it is apparent from the evidence on record. So, the above decisions concerning the legal effect of more than one dying declaration have no application to the facts of this case. 15. In the present case the prosecution relied only on one dying declaration of the deceased made to her mother,PW1, which was subsequently disclosed by her to the police. In the light of the statements given by PW1 to the investigating officer,PW16, report was filed before the learned Magistrate against 1st accused after altering the case originally registered as unnatural death, for the offence punishable under Section 302 IPC. This is revealed from the report, marked as Ext.P10. The above said discussion leads to the conclusion that it was the first accused who set fire to the body of the deceased Subaida Beevi, after pouring kerosene on her and that she succumbed to the burn injuries while undergoing treatment in the hospital. CRL.A.NO. 1052/2004 -18- 16. The prosecution has thus succeeded in proving that the first accused committed the murder of Subaida Beevi due to the enmity towards her. She was in the hospital from 2-6-1998, where she died on 4-6-1998. Thus the prosecution has also succeeded in proving that the 1st accused committed the murder by intentionally causing the death of Subaida Beevi by pouring kerosene on her body and setting fire on her. Thus the ingredients under Section 302 I.P.C. stand proved. Therefore, we hold that the prosecution has succeeded in proving the guilt of the appellant beyond reasonable doubt. He was found guilty under Section 302 I.P.C.and sentenced rightly by the lower court for the said offence. In the result the appeal fails and it is dismissed. K. BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. ks.