IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 3RD FEBRUARY, 2009 / 14TH MAGHA, 1930 CRL.A.No. 2445 of 2007 (SC.560/2006 of SESSIONS COURT, THODUPUZHA CP.16/2006 of JUDICIAL CIRST CLASS MAGISTRATE COURT-II, PEERUMDEDU) .................... APPELLANT/ APPELLANT: ------------------------------------- ABU THAHEER, C.NO.1678, CENTRAL PRISON, TRIVANDRUM. BY ADV. SMT. RESHMI K.V. [STATE BRIEF] RESPONDENT: -------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.A.No. 2445 of 2007 --------------------------------------------- Dated this the 3rd day of February, 2009 J U D G M E N T This is an appeal preferred by the sole accused in Sessions Case No.560 of 2006 in the court of the Sessions Judge, Thodupuzha challenging his conviction under Section 304 part II of the Indian Penal Code and the sentence thereon. As the appellant is undergoing imprisonment pursuant to the impugned judgment, this appeal is preferred from the jail. 2. The prosecution case is that the accused committed the murder of his wife by putting fire on her body after pouring kerosene oil at about 7 p.m. on 6.2.2005. Based upon the above allegation, Crime No.29 of 2005 was registered in the Kumili Police Station for the offence under Section 302 I.P.C. 3. On completing the investigation in the above crime, a final report was filed before the Judicial First Class Magistrate Court-II, Peerumedu whereupon C.P.No.16 of 2006 was instituted and the learned Magistrate by his order dated 29.9.2006 committed the case to the Sessions Court, Crl.A.No. 2445 of 2007 :-2-: Thodupuzha. On appearance of the accused and after hearing both the defence and the prosecution, a formal charge under Section 302 I.P.C. was framed which was read over and explained to the accused in Malayalam to which he pleaded not guilty. Thereafter, the prosecution adduced its evidence consisting of the oral testimony of PWs.1 to 17 and the documentary evidence such as Exts.P1 to P19. The material objects MOs.1 to 8 were also identified and marked. The incriminating circumstances, which were brought out during the evidence of prosecution, when put to the accused, he denied the same. The specific stand taken by the accused is to the effect that the deceased herself had poured kerosene on her body and set fire and as a result of the same, she died. On the basis of the materials on record and the pleadings taken, four issues were framed by the court below for its consideration and finally found that there was no intention on his part to commit the murder of his wife, but he had done the act with the knowledge that the burn injuries will result in death and therefore, it was further found that the accused is guilty of the offence under Section 304 part II of I.P.C. Thus, the accused was sentenced to undergo rigorous imprisonment for seven years for the offence under Section 304 Crl.A.No. 2445 of 2007 :-3-: part II of I.P.C. It is the above finding and sentence challenged in this appeal on jail. 4. As the appellant is undergoing imprisonment pursuant to the impugned judgment and he preferred this appeal from jail, Smt.K.V.Reshmi is appointed as State Brief to prosecute the above appeal. Thus, I have heard Smt.K.V.Reshmi, learned counsel for the appellant and also the learned Public Prosecutor. 5. According to the prosecution case, the deceased was a married girl aged 19 years at the time of incident. PW15 is the mother of the deceased. Appellant is the husband of the deceased and the marriage had taken place during the month of July,2004. According to the prosecution, the accused used to ill- treat her after taking liquour suspecting her fidelity. Thus on 6.2.2005, the accused after having consumed liquour, picked quarrel with the deceased and at about 7 p.m., at his house, he poured kerosene oil on the body of the deceased and lit with a matchstick and set fire to her. Then, she came out of the house and raised hue and cry and the neighbours gathered there and extinguished the fire and she was taken to the Central Hospital, Kumily in an autorickshaw arranged by her mother-in-law and the Crl.A.No. 2445 of 2007 :-4-: accused. PW12, the Head Constable of the Kumili Police Station reached in the hospital on getting intimation from the hospital and recorded Ext.P14 First Information Statement of the deceased. PW12 also prepared Ext.P14(a) body note of the injured in the presence of the nurse who was attending her. On his return to the Police Station, he registered Ext.P15 F.I.R. in Crime No.29 of 2005. Since the condition of the injured was precarious, Dr.Sreedhran, PW14 attached to the Central Hospital, Kumili examined the injured and referred the patient to the Medical College Hospital, Kottayam by issuing Ext.P17 treatment certificate. Thus, the deceased was admitted and treated in the Medical College Hospital. Based upon the registration of crime, the Circle Inspector of Police, Kumily had undertaken the investigation on 7.2.2005. PW13 went to the scene of occurrence and prepared Ext.P12 scene mahazar in the presence of witnesses. PW10 is the attestor to Ext.P12 scene mahazar. When preparing the scene mahazar, PW13 seized MO1 burnt saree, MO2 kerosene lamp, MO3 burnt underskirt, MO4 burnt blouse, MO5 kerosene bottle, MO6 match box, MO7 match sticks three in numbers and MO8 a part of the burnt saree describing the same in Ext.P12. Thereafter, the Circle Inspector Crl.A.No. 2445 of 2007 :-5-: questioned the witnesses and recorded the statements of several witnesses. Thereafter, he arrested the accused on 9.2.2005. PW13 preferred Ext.P16 requisition to the Chief Judicial Magistrate, Kottayam for recording the dying declaration of the injured and accordingly, PW7, the learned Judicial First Class Magistrate, Kottayam recorded the dying declaration as per Ext.P7 on 9.2.2005. Thereafter, the injured was discharged on 4.3.2005 at her own request. Thus while she was undergoing local treatment in her parental house, she died on 17.6.2005. PW16, the successor of PW13 took up the investigation on 17.6.2005 and went to the house of deceased. Thus, Ext.P18 is the inquest report prepared by PW16. PW8 conducted autopsy on the body of the deceased and he issued EXt.P8 post mortem certificate. PW16 filed EXt.P19 report before the court against the accused to add Section 302 I.P.C. Thereafter, PW17, the successor of PW16 took up the investigation and on completing the same, he laid the charge against the accused for the offence punishable under Section 302 I.P.C. 6. Though the prosecution cited and examined PWs.1 to 6 who are the neighbours residing very adjacent to the place of occurrence to prove the incident, they turned hostile to the Crl.A.No. 2445 of 2007 :-6-: prosecution. When they were examined, they gave entirely a new story regarding the death of the deceased. According to them, the deceased herself poured kerosene on her body and set fire as a result of which she sustained the injury and consequently died. But, the prosecution adduced its evidence through PW7,PW8,PW12,PW14 and also PW15. When PW12 was examined in the court, he had categorically stated that on getting intimation from the Central Hospital, Kumili, he met the injured and recorded her statement which is marked through PW12 as Ext.P14. Ext.P14(a) is the body note with respect to the deceased recorded in Ext.P14 by PW12. In Ext.P14, the deceased categorically stated before PW12 that the accused set fire to the deceased and she had also narrated the incident and her experience after her marriage with the accused. She had also stated the details regarding the incident that had taken place on the fatal day. As stated earlier, PW7, the learned Judicial First Class Magistrate, Kottayam recorded the dying declaration of the deceased on 9.2.2005 as per Ext.P7. The mother of the deceased who was examined as PW15 has also stated about the marriage between the accused and the deceased and also the cruelty faced and the harassment meted out against the Crl.A.No. 2445 of 2007 :-7-: deceased at the instance of the accused, as disclosed to her, by the deceased herself. It is also on record that initially the deceased was examined by PW14, the Doctor attached to the Kumily Central Hospital and Ext.P17 treatment certificate was proved through him. Thus, when the deceased was under the local treatment, she died on 17.6.2005. PW16 reached the house of the deceased, conducted the inquest of the deceased and prepared Ext.P18 inquest report. PW16 filed Ext.P19 report to add Section 302 of I.P.C. Thereafter, PW8, the Doctor attached to the Medical College Hospital, Kottayam conducted the post mortem and issued EXt.P8 post mortem certificate. The final opinion regarding the cause of death contained in Ext.P10 is proved through PW8. Ext.P8 post mortem certificate, Ext.P9 chemical examination report and Ext.P10 final opinion on postmortem were proved through PW8. Thus, the trial court especially on the basis of the above evidence, came into a conclusion that the accused has committed the offence punishable under Section 304 part II of the I.P.C. 7. Learned counsel appearing for the appellant vehemently argued that there is no independent evidence to substantiate the prosecution case. The learned counsel pointed Crl.A.No. 2445 of 2007 :-8-: out that even according to the prosecution case, the injured was taken to the hospital by the accused and after the discharge of the deceased from the Medical College Hospital, both the accused as well as the deceased resided together. Thus, according to the learned counsel, the above facts are sufficient to hold that the case put forward by the defence is correct and more probable. The learned counsel invited my attention to para 25 of the impugned judgment wherein after considering the materials on record, the trial court had found that the accused was not having the intention to commit murder of the deceased. Thus according to the learned counsel, the prosecution case itself is doubtful, as the facts and circumstances involved endorsed the defence version that the deceased herself had tried to commit suicide and as part of the same incident, she sustained injury which resulted in her death. The learned counsel submits that the appellant/accused is entitled to get a clear acquittal after setting aside the impugned judgment. 8. On the other hand, the learned Public Prosecutor pointed out that in the present case, Ext.P14 F.I.Statement and P7 dying declaration of the deceased herself are free from doubt or infirmities or contradictions and are not tainted and thus, Crl.A.No. 2445 of 2007 :-9-: EXts.P14 and P7 reveal the role played by the accused in the commission of the offence as spoken by the deceased herself. Therefore, even in the absence of any independent evidence, there is no legal bar for convicting the accused. Thus, according to the learned Public Prosecutor, no interference of this Court is warranted. 9. I have carefully considered the contentions advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. 10. Exts.P7 and P14 are self speaking documents in the form of dying declaration of the deceased. Ext.P14 was recorded by PW12 immediately after the incident. When PW12 recorded Ext.P14 F.I.Statement of the injured, she was fully conscious and there was no kind of uneasiness or inability to make such deposition. Though PW12 was cross-examined, nothing was brought on record to discredit his version regarding the recording of Ext.P14. Absolutely there is no defect in Ext.P14 F.I.Statement. Ext.P7 dying declaration dated 9.2.2005 was recorded by PW7, the learned Judicial magistrate of First Class, Kottayam. Going by Ext.P7, I find no reason to discredit or reject the same. I also find no reason to reject the deposition of PW15 Crl.A.No. 2445 of 2007 :-10-: regarding the marital relationship between the accused as well as the deceased and the cruelty to which the deceased was subjected to by the accused and other harassment meted out as she was told by the deceased herself. Thus, going by the above materials, it can be seen that burn injuries sustained by the deceased which resulted in her death were at the instance of the accused and the accused set fire to her body after pouring kerosene oil. In the light of the above finding, I have to approve the finding arrived on by the court below regarding the guilt of the accused and his conviction for the offence under Section 304 part II of the I.P.C. 11. The learned counsel appearing for the appellant submits that the accused is comparatively a young man and therefore, a lenient view may be taken. While imposing the sentence, only seven years of rigorous imprisonment is awarded against the appellant by the trial court, even though the maximum penalty of sentence fixed is ten years. In this juncture, it is relevant to note that though originally the appellant was charged for the offence punishable under Section 302 I.P.C., after appreciating the evidence on record and evaluating the circumstances involved in the case, the trial court found that there Crl.A.No. 2445 of 2007 :-11-: was no intention for the accused to commit murder of his wife, the deceased. Thus, having regard to the facts and circumstances involved in the matter, I am of the view that the sentence can be reduced and fixed as five years rigorous imprisonment instead of seven years. Thus, the appellant/accused is directed to undergo rigorous imprisonment for a period of five years. Set off under Section 428 of Cr.P.C. is allowed. Thus, this Criminal Appeal is disposed of confirming the conviction, but subject to the above modification with respect to the sentence. V.K.Mohanan, Judge MBS/ Crl.A.No. 2445 of 2007 :-12-: V.K.MOHANAN, JJ. -------------------------------------------- Crl.A.NO. 2445 of 2007 -------------------------------------------- J U D G M E N T DATED: 3-2-2009 Crl.A.No. 2445 of 2007 :-13-: