IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 CRL.A.No. 2088 of 2005() ------------------------ SC.449/2003 of SESSIONS COURT, KOLLAM CP.209/2001 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... APPELLANT(S): -------------- SURESH, S/O. RAVI, SURESH BHAVAN, MANJAKKALA MURI, THALAVOOR VILLAGE, (PERMANENT ADDRESS) THEKKEVILA VEEDU, PIRAVANTHUR MURI & VILLAGE. BY ADV. SRI.T.R.ASWAS RESPONDENT(S): --------------- STATE OF KERALA REPRESENTED BY C.I. OF POLICE, PUNALUR. PUBLIC PROSECUTOR MR.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. ------------------------------------------------------------------ Cr.A.No. 2088 of 2005 ------------------------------------------------------------------ Dated 20th October 2009 Judgment Balakrishnan Nair, J. The appellant was the accused in Sessions Case No.449/03 on the file of the Court of Sessions Judge, Kollam. The case of the prosecution, in brief, is as follows : 2. The accused and the deceased Mallika were living as husband and wife. Two children were born out of their relationship. The appellant was in the habit of coming home, after consuming alcohol and thereafter, quarrelling with Mallika. On 12.07.2000, at about 7 pm., the appellant poured kerosene over Mallika and set fire to her by lighting a match. Hearing the loud cries of Mallika that she is being killed, PW1, the brother of Mallika, who was residing next door, rushed to the scene. He saw the appellant pouring kerosene and setting fire to her. It was watched by PW2, who is the son of the deceased and also her younger son, who was not examined as a witness. PW1 poured water on Mallika and quenched the fire. The accused, after committing the crime, disappeared from the scene. PW1 and others, who assembled there, took Mallika to Government Cr.A.No.2088/05 2 Hospital, Punalur in a vehicle. PW3, the doctor examined her and directed to take her to the Medical College Hospital. On the same day, she was admitted in the Medical College Hospital. On receiving intimation, PW7, a Head Constable of Kunnikode Police Station, went to the Medical College, recorded the dying declaration of the victim in the presence of the duty doctor and two independent witnesses. Ext.P3 is the dying declaration recorded by the Head Constable. Based on the said declaration, he registered Ext.P3(a) F.I.R. Mallika breathed her last on 16.7.2000 at 6.20 am. Initially, the crime was registered for the offence under S.307 and on the death of the victim, the same was substituted by the offence under S.302 IPC, as per Ext.P10 report. PW8 Circle Inspector of Police took over the investigation and he conducted the inquest and prepared Ext.P7 inquest report in the presence of witnesses. He also prepared Ext.P8 scene mahazar, sent the body for autopsy, questioned the witnesses and completed major part of the investigation. PW5 Professor of Forensic Medicine conducted autopsy and issued Ext.P4 postmortem certificate. The doctor gave opinion that the death was due to burning. PW9 verified the charge and laid the final report before the Judicial First Class Magistrate's Court-III, Punalur. The learned Cr.A.No.2088/05 3 Magistrate committed the case for trial by the Sessions Judge, as the offence disclosed was exclusively triable by a Court of Sessions. 3. The accused pleaded not guilty to the charge framed against him under S.302 IPC by the learned Sessions Judge. The prosecution, to prove its case, examined PW1 to PW9 and marked Exts.P1 to P11 and also produced MO1 to MO3. From the side of the defence, two witnesses DW1 and DW2 were examined. The learned Sessions Judge, after hearing both sides, upheld the case of the prosecution, finding the appellant guilty of the offence under S.302 IPC and sentenced him to undergo imprisonment for life. Challenging the above conviction and sentence, the appellant has preferred this Criminal Appeal. 4. Shri.T.R.Aswas, learned counsel for the appellant took us through the deposition of witnesses and the materials on record. According to him, because of the enmity of the family members of Mallika, a false case has been foisted against the appellant. The statement filed by him, while questioned under S.313 Cr.P.C. disclosed the correct facts. The said version is fortified by the deposition of the defence witnesses. Because of the animosity towards the appellant, PW1 has deposed against him. PW2, the child Cr.A.No.2088/05 4 witness was residing with the maternal grandmother and he has presented a tutored version before the court. So, the learned counsel prayed for acquittal of the appellant. 5. The learned Public Prosecutor, on the other hand, submitted that PW1 and PW2 were present at the scene of occurrence and there is no reason to disbelieve their version. The victim herself has stated in the presence of the duty doctor and independent witnesses to PW7 Head Constable, the real facts relating to the case. In view of the above evidence available on record, the conviction and sentence imposed on the appellant have to be sustained. The version of the defence witnesses is full of contradictions and inherently improbable, it is pointed out. 6. In this case, the evidence of PW1, the brother of the deceased and PW2, the elder son of the deceased and Ext.P3, the statement of the deceased herself, fully support the case of the prosecution. PW1 has deposed that on haring his sister crying that she is being killed, he rushed to the scene and saw the appellant taking a black can and pouring kerosene from it on Mallika and thereafter, setting fire to her, using a lighted match. Mallika rushed out from the kitchen. PW1, his wife and mother poured water on her Cr.A.No.2088/05 5 and quenched the fire. In the meantime, neighbours also gathered and she was immediately rushed to the Government Hospital, Punalur. The very same version is given by PW2, the elder son of the deceased, who was, while giving the statement, a student of 9th standard, aged about 14 years. The victim herself in Ext.P3, which is her dying declaration, stated that it was her husband, who poured kerosene and set fire to her. We notice that the versions of PW1 and PW2 remain unshaken, notwithstanding extensive cross examination by the defence. Further, we find no reason to accept the suggestion made by the defence that out of animosity towards the appellant, PW1 has falsely implicated him. We also find it difficult to accept the claim of the appellant that the grandmother of PW2 has tutored him and persuaded him to give evidence against his father. We notice that their version is corroborated by Ext.P3 dying declaration of the deceased. It was recorded in the presence of the duty doctor, who certified the capacity of Mallika to make such a statement. The statement was taken in the presence of other persons also. Though they were not examined, PW4, the doctor, who witnessed the recording of the statement, has deposed before the court, regarding how the statement was recorded and the steps taken by him to Cr.A.No.2088/05 6 ascertain the capacity of Mallika to make such a statement. Going by Ext.P3 and the deposition of PW4, we are inclined to believe that Mallika has made Ext.P3 dying declaration, implicating the appellant. By the evidence of PW5, the doctor, who conducted postmortem examination and issued Ext.P4 certificate, it is proved that Mallika died of burn injuries. The evidence on record, thus, would unerringly point to the role of the accused in the commission of the crime, which led to the death of Mallika. We agree with the learned Public Prosecutor that the defence evidence lacks credence. DW1 claims that he did not ask anyone as to how Mallika sustained burn injuries. The same is against normal human conduct. If he had come to the scene, he would have immediately enquired, how the incident took place. So, we have no hesitation to hold that the version of DW1 cannot be believed. The same is the case of DW2. He has deposed that he saw the appellant, coming to the house, along with his children, immediately after the incident. But, later, in his cross- examination, he deposed that the children were in the house, at the time of the incident. His case that Mallika had told his wife, who is no more, that the appellant is not responsible for the incident, cannot be believed. Both the defence witnesses have spoken to about the Cr.A.No.2088/05 7 presence of the appellant, while the injured was being taken to the hospital. When the appellant set fire to his wife in the presence of his children and brother-in-law (PW1), it is not probable that he will accompany the injured to the hospital. So, the defence version was rightly rejected by the court below. 6. In the result, we find no reason to interfere with the judgment under appeal. We agree with the reasons and conclusions of the Sessions Judge. In the result, the Criminal Appeal fails and it is accordingly dismissed. K.BALAKRISHNAN NAIR, JUDGE P.BHAVADASAN, JUDGE sta Cr.A.No.2088/05 8