IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 21ST OCTOBER 2009 / 29TH ASWINA 1931 CRL.A.No. 1707 of 2005() ------------------------ SC.178/2004 of ADDL. SESSIONS COURT NO.I, (AD HOC ), MANJERI. CP.25/2003 of JUDL. MAGISTRATE OF FIRST CLASS COURT, PARAPPANANGADI .................... APPELLANT(S): PETITIONER ---------------------------------------- K.M.SUJITH, S/O.NEELAKANDAN NAMBEESAN, CONVICT NO:2215, CENTRAL JAIL, KANNUR. BY ADV. SRI.S.SACHITHANANDA PAI SRI.K.RAMAKUMAR, SENIOR ADVOCATE SMT.SARITHA DAVID CHUNKATH SMT.SMITHA GEORGE SRI.T.RAMPRASAD UNNI RESPONDENT(S): ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON 21/10/2009 DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No. 1707 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2009. JUDGMENT Bhavadasan, J, Accused was found guilty of the offence of uxoricide. He was therefore convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs.10,000/- with a default clause to undergo imprisonment for three years if the fine is not paid. 2. The marriage between the deceased and the accused took place on 8.2.2002. The accused and the deceased were relatives and they had fallen in love. P.W.6, the mother of the accused was closely related to the deceased. But she did not attend the marriage. Even though the couple took up independent residence soon after marriage, later they shifted to the house of the accused. At the relevant time they were residing along with the parents of the accused. The accused is Crl.A.1707/2005. 2 the third son of P.Ws. 6 and 7. P.W.6, his mother would say that the accused often comes home drunk. On 21.5.2002 the accused returned home late in the night. The room on the eastern side of the house was occupied by the accused and the deceased. P.W.7, the father of the accused opened the door for him on the eventful day when he came late. The accused went to his room. According to the prosecution, a short while thereafter P.W.6, the mother of the accused heard groans and grunts of the deceased from her room. She went near the room. It is the prosecution allegation that P.W.6 had seen the accused dropping M.O.2 can of kerosene and also a lighted match stick. P.W.6 cried aloud and then found that the accused was not in the room. Her cries woke up the other inmates of the house and they rushed to the place. They found Ambily, the deceased engulfed in fire. P.W.6 tried to douse the fire. The victim was removed to the hospital. Initially P.W.3 attended to the victim in Care Well Hospital, Ramanattukara, and on seeing the condition of the patient, referred the victim to the Crl.A.1707/2005. 3 Medical College Hospital for better management. She was given first aid by P.W.3. The victim was taken to Koya's Hospital and P.W.17, the doctor attached to the said hospital attended to the patient. Ext.P22 certificate is issued by him. She was admitted in the ICU of the hospital. The next day, the Doctor advised that she be taken to the Medical College Hospital. On 21.5.2002 by about noon the victim was admitted in the Medical College Hospital. P.W.5, the doctor attached to the Medical College Hospital, attended to her and he had issued Ext.P5 certificate, which is the treatment certificate relating to Ambily. On getting information about the incident, P.W.13, the Police Constable attached to Thenjipalam Police Station went to the Medical College Hospital. He found that Ambily was not in a fit condition to give any statement. So he recorded Ext.P6, First Information Statement, furnished by P.W.6. P.W.13 returned to the police station. Based on Ext.P6 first information statement, P.W.16, Sub Inspector of Police registered First Information Report, Ext.P17, for the Crl.A.1707/2005. 4 offences punishable under Sections 498A and 307 Indian Penal Code. He prepared Ext.P16 scene mahazar. He recorded the arrest of the accused. Based on Ext.P15(a) confession statement said to have been given by the accused M.Os. 1 and 2 were recovered as per Ext.P15. Meanwhile, P.W.1 had recorded Ext.P1 declaration given by the deceased from the Hospital. P.W.2, the Doctor attached to the Hospital had certified that the victim was fit enough to give statement and Ext.P2 is the certificate issued by him. On 8.6.2002, Ambily, the victim, succumbed to her burn injuries. Investigation was taken over by P.W.18. He had P.W.16 conduct inquest over the body of the deceased and prepare Ext.P20 report. Ext.P21 report was filed before Court incorporating charge under Section 302 Indian Penal Code. In the meanwhile, autopsy was conducted by P.W.4 and Ext.P4 report was furnished by him. P.W.18 obtained site plan, recorded statements of other witnesses and completed the investigation. He laid charge before court. Crl.A.1707/2005. 5 3. JFCM, Parappanangadi took cognizance of the offences. On appearance of the accused before the said court, all legal formalities were complied with. The learned Magistrate found that the offences are exclusively triable by a court of Sessions and accordingly committed the case to Sessions Court, Manjeri under Section 209 of Code of Criminal Procedure. The said court made over the case to Additional Sessions Court, Fast Track No.I (Ad Hoc), Manjeri for trial and disposal. 4. That court issued summons to the accused and he entered appearance. After hearing both sides, charges were framed for the offences punishable under Sections 498A and 302 Indian Penal Code. To the charges, the accused pleaded not guilty and claimed to be tried. Prosecution therefore had P.Ws. 1 to 18 examined Exts.P1 to P29 marked. M.Os. 1 and 2 were identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 of the Criminal Crl.A.1707/2005. 6 Procedure Code. He denied all the offences alleged against him and maintained that he is innocent. He would say that on the date of the incident when he returned home, it was Ambily, who had opened the door for him. He claims that thereafter he went to the temple pond to take bath. While taking his bath, he heard cries from his house and he rushed to his house. He found that Ambily was on fire. He fetched a vehicle and took Ambily to Hospital. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence. On an appreciation of the materials before it, the court below found that the prosecution has established the case against the accused and accordingly found the accused guilty. Conviction and sentence already mentioned followed. The said conviction and sentence are assailed in this appeal. 5. The question that arises for consideration is whether any interference is called for with the judgment of the court below. Crl.A.1707/2005. 7 6. The prosecution case appears to be that after the marriage the accused began to ill-treat his wife for several reasons. On the date of the incident, the prosecution case is that, the victim was stabbed with a knife, thereafter strangulated and set her ablaze. 7. The court below found the following materials sufficient to come to the conclusion that the offences have been made out: (i) Evidence of P.W.6 taken along with Exts.P7, P7(a) and P7(b). (ii) Exts.P9 and P7(c). (iii) Evidence of P.W.9. (iv) There is evidence to show that the accused used to come home drunk and torture Ambily. He had also sold some of the gold ornaments of the victim. (v) The accused and the deceased were sharing the same room and they were seen last together. Therefore the burden is on the accused to show what actually had occurred in the room going by Section Crl.A.1707/2005. 8 106 of the Indian Evidence Act. (vi) The explanation given by the accused when questioned under Section 313 Cr.P.C. is false. (vii) The victim was stabbed and strangulated by the accused before setting her on fire to ensure that she could not respond. 8. The learned counsel appearing for the appellant, Smt.Saritha David Chunkath, attacked the findings of the court below on the following grounds: The learned counsel contended that the finding is based on conjunctures and surmises, rather than evidence on record. It is strange to note, according to learned counsel, that the court below has taken aid of portions of Section 161 statement of the witnesses to hold in favour of the prosecution. That is clearly illegal. Learned counsel also pointed out that even assuming that P.W.6 had given a statement under Section 164 of Cr.P.C. to P.W.9, the learned Magistrate, it needs to be noticed that she has resiled from the same. Even if one takes the statement under Section 164 as Crl.A.1707/2005. 9 evidence, it can never be treated as substantive evidence. It can at best only be an item of corroborative evidence. Learned counsel drew attention of this court to Ext.P1, the dying declaration furnished by the victim, which contained nothing regarding any role played by her husband or anybody else in the mishap that had happened to her. Learned counsel for the appellant pointed out that if as a matter of fact what the prosecution says is true, the victim would not have been so kind and benevolent. She had no complaints against anybody. Learned counsel pointed out that it is interesting to note that the police officer, who had gone to take the first information statement says that the victim was incapable of giving a statement and therefore the statement of P.W.6 was taken. The First Information Statement was taken on 23.5.2002. The dying declaration was recorded on 24.5.2002 and the doctor found her fit enough to give the statement. There is nothing to indicate that the condition of the victim was so bad that on 23.5.2002 she was unable to speak. According to the learned counsel, none of Crl.A.1707/2005. 10 the grounds relied on by the court below to hold the accused guilty, are sustainable either in law or on the facts. There is absolutely no evidence to show that there was an attempt to strangulate the victim or that she was stabbed so as to make her immobile as found by the court below. The prosecution did not suggest to any of the medical witnesses examined by the prosecution that there were corresponding injuries on the body of the victim evidencing that she was either stabbed or there was an attempt to strangulate her. Those findings are figments of imagination of the court below and get no support from the evidence on record. Finally, learned counsel contended that the act of lower court in casting the burden on the accused on the basis of Section 106 of the Indian Evidence Act is unjustifiable. According to the learned counsel, even assuming that they were last seen together, that does not mean that the burden automatically shifts to the accused. The question of shifting the burden to the accused arises only when the prosecution has established its case Crl.A.1707/2005. 11 beyond reasonable doubt. Section 106 of the Indian Evidence Act does not relieve the prosecution of its burden to prove the case beyond reasonable doubt. 9. The learned Public Prosecutor on the other hand pointed out that the court below has approached the issue in the proper perspective and had come to the conclusion that offences have been established. The learned Public Prosecutor pointed out that the court below had meticulously analysed the evidence in the case and based on the testimony of P.Ws.6 and 15 etc., and other items of evidence had come to the right conclusion. The court below, according to the learned Public Prosecutor, had taken note of the conduct of the accused prior to and subsequent to the incident and that is very relevant in the present case. Attention was drawn to the fact that there is nothing to indicate that the accused was by the side of his wife while she was in the hospital. These facts taken along with the statement given by P.W.6 under Section 164 of the Code of Criminal Procedure recorded by P.W.9 Crl.A.1707/2005. 12 are incriminating items of evidence to fasten the liability on the accused. According to learned Public Prosecutor no grounds are made out to interfere with the conviction and sentence passed by the court below. 10. It may first be noticed that there is absolutely no evidence at all in this case to show that there was any attempt to strangulate the victim and so also that she was stabbed by using M.O.1 knife. The medical evidence is to the effect that she died of burns, which was on the lower portion of her body. There is no entry in any of the certificates issued by any of the Doctors, who had attended to her including the postmortem certificate issued by P.W.4 suggesting that there was any attempt to strangulate the victim or that any stab injury had been inflicted on her body. Not even a suggestion was made to any of the doctors examined that any of the injuries found on the body of the victim could be related to the attempted strangulation or injury inflicted with a knife. Therefore, the observation of the court below that the accused had Crl.A.1707/2005. 13 attempted to strangulate the deceased and also had inflicted a stab injury on her is without any basis. 11. The most important items of evidence, which impressed the court below are the testimony of P.W.6, Ext.P7 series and Ext.P9. 12. P.W.6 is none other than the mother in law of the victim and the mother of the accused. She says that the marriage between the victim and the accused was solemnized four months prior to the date of incident and that the bride is closely related to her. She had not attended the marriage. After staying separately initially for a few months, the newly wedded couple took up residence with P.W.6 and others. She says that Ambily, the victim suffered burns on 21.5.2002 in the night and the incident occurred in the room occupied by the victim and the accused. At the relevant time, according to this witness, her husband, her eldest son and his wife were at home. All of them had supper and had gone to sleep. The accused arrived late in the night. She does not Crl.A.1707/2005. 14 know when the accused had come home in the night. But she learned that his father had opened the door for him. It was hearing the groans and grunts of Ambily that she had gone near their room. When she opened the door, she found that the accused was not there. She found that Ambily was on fire. She at once attempted to douse the fire by throwing water over her. By that time, the neighbours came to the place and the victim was removed to the hospital. She says that the accused had also gone along with the victim to the hospital. She resiled from Ext.P6 statement given by her and so also Ext.P9 statement said to have been given by her. Ext.P6 is the first information statement and Ext.P9 is the statement given by her to the Magistrate under Section 164 Cr.P.C. 13. It is true that at the time of giving Ext.P6 she had implicated the accused. One may notice that FIS was lodged after two days of the incident. It is strange to note that the hospitals, where she had been taken for treatment, did not feel it necessary to inform the police. P.W.6 admitted her signature in Exts. P6 and Crl.A.1707/2005. 15 P9. As far as Ext.P9 is concerned, she has a case that it was given under threat and coercion. 14. P.W.7, as already noticed, is the father of the accused. He would say that Ambily died of burns. He says that there was no disharmony between the couple. It has come out in his evidence that the accused used to take drinks. But his evidence does not contain anything to implicate the accused as such. 15. In this regard, one may notice the evidence of P.W.15. P.W.15 is the brother of the deceased. He says that he came to know about the incident by 11 A.M. the next day. As far as he knows, there was no difference of opinion or displeasure in the marital life of the accused and the victim. He however does say that P.W.6 had told him that the act was committed by the accused. He would also depose that after the victim was admitted in the hospital, the accused had not come there at all. 16. These are the items of oral evidence in the case. One may recall that the prosecution case is that Ambily was being Crl.A.1707/2005. 16 continuously harassed and tortured demanding more dowry and money. The accused made life miserable for her. It is strange to note that even P.W.15, the brother of the victim has no such case. It is not discernible from the records the details of the other kith and kin of the deceased. Whatever that be, the allegation of the prosecution that she was being ill-treated remains unsubstantiated. There is nothing to indicate that the accused had squandered away the money received at the time of marriage (if at all there was any) or that he had sold the gold ornaments of his wife. One fails to understand as to how the lower court came to the conclusion that the accused had sold the gold ornaments of the deceased. 17. It is here that Ext.P1 assumes much significance. The incident took place on 21.5.2002. The dying declaration of the victim was taken on 24.5.2002, while she was in the hospital. It was recorded by P.W.1. P.W.2 is the doctor, who certified that the victim was in a fit condition to give the statement. After Crl.A.1707/2005. 17 following the necessary formalities, the statement of the victim was taken by P.W.1. The victim stated that she was not fully conscious at the time of the incident. She says that she caught fire while she was sleeping. She does not say about anything done by her husband nor has implicated anybody in her statement. If as a matter of fact, her husband was so unkind, cruel and merciless to her, it is inconceivable that she would have given a statement of the nature of Ext.P1. One must remember here that she died after about 14 days of suffering of burn injuries. 18. The court below placed considerable reliance on Exts.P7, P7(a) and P7(b), which are the statements put to P.W.6 when she was being examined in court. Exts.P7, P7(a) and P7(b) are part of statements under Section 161 Cr.P.C. to the investigating officer. The court below feels that since the investigating officer has stated that those statements had been given by P.W.6, that forms substantive evidence. Crl.A.1707/2005. 18 19. The above view has no legal support. It is well settled that a statement under Section 161 Cr.P.C. given to an investigating officer can be used in the manner prescribed by Section 162 Cr.P.C. alone. The portions of that statement can never be treated as evidence. 20. P.W.6 admitted the signature on Ext.P9. That is a statement recorded by the learned Magistrate under Section 164 Cr.P.C. At the time of evidence she deviated a lot from that statement. One may note that even though P.W.6 had admitted her signature in Ext.P6, which is the First Information Statement given by her, she had retracted from it at the time of evidence. In the decision reported in Chandrasekharan v. Station of Kerala (1993(1) K.L.T. 571), it has been held as follows: “We may point out, at this stage itself, that learned Sessions Judge has relied on certain materials which are totally inadmissible in evidence. Eg: He relied on the statements made by two witnesses before Judicial Magistrate of the Second Class who recorded Crl.A.1707/2005. 19 them under S.164 of the Code of Criminal Procedure. It is well settled that the statement of a witness recorded by a Magistrate under S.164 of the Code is not substantive evidence and the most that can be used of it is only for corroboration of the testimony of that witness as provided in S.157 of the Evidence Act or for contradicting the witness in the manner provided in S.143 of the Evidence Act.” 21. The act of the learned Sessions Judge in placing reliance on the statements made by the witnesses under Section 161 of the Cr.P.C. cannot be justified in the light of the decision reported in Parameswaran v. State of Kerala (2004(2) K.L.T. SN 103), wherein it was held as follows: “Previous statement of witnesses alleged to have been given by him before the police, and denied by him, is not part of his testimony. Hence, the learned Sessions Judge committed a fundamental error in accepting the prosecution case solely based on the evidence of the investigating officer as his version is corroborated by the previous statement given to the Crl.A.1707/2005. 20 police officer by the witnesses. Under no circumstances, statements recorded under S.161 can be used to corroborate the evidence of investigating officer. All previous statements of witness to the police are not admissible in evidence for any purpose and there is absolute ban regarding acceptance of such evidence except as allowed by S.162 Cr.P.C., viz., contradiction of a prosecution (1) by the accused; (2) by the prosecution themselves with permission of the Court; (3) statements coming under S.32 of the Evidence Act; and (4) for the purpose of S.27 of the Evidence Act. Police statement given by one witness cannot be used to contradict or corroborate the evidence of any other witnesses. S.162 Cr.P.C., is a special law and notwithstanding Ss.145 and 157 of the Evidence Act, the above section completely prohibits the admission of evidence of alleged statements recorded by the police officer in the course of investigation except for the strictly limited purpose as provided in the provisions of S.162 itself. Previous statement to the police can be used to contradict the witnesses in the manner provided in the section only if Crl.A.1707/2005. 21 the 'statement is duly proved'. There is no presumption of genuineness of the statements reduced to writing by the police. Investigating Officer can only depose the investigation he has conducted. But finding of guilt solely based on the evidence of the investigating officer regarding previous statements of witnesses cannot be justified.” 22. In the decision reported in Rajendra Singh v. State of U.P. ((2007) 7 SCC 378) it was held as follows: “The High Court has basically relied upon the statements of six witnesses which had been recorded by the investigating officer under Section 161 Cr.P.C. to record a positive finding that the respondent could not have been present at the scene of commission of the crime as he was present in a meeting of Nagar Nigam at Allahabad. A statement under Section 161 Cr.P.C. is not a substantive piece of evidence. In view of the proviso to sub-section (1) of Section 162 Cr.P.C., the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court Crl.A.1707/2005. 22 committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Kapil Dev Singh could not have been present at the scene of commission of the crime.” 23. There is absolutely no evidence of any cruel acts by the accused towards his wife nor is there any evidence of