Aboobacker @ Abu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN THURSDAY, THE 14TH DAY OF DECEMBER 2017/23RD AGRAHAYANA, 1939 CRL.A.No. 1039 of 2011 (D) -------------------------------------AGAINST THE JUDGMENT, CONVICTION AND SENTENCE IN S.C. No. 300/2009 of ADDL.SESSIONS COURT (ADHOC)-II, ERNAKULAM, DATED 25-04-2011 APPELLANT/ACCUSED: - -------------------------------------- ABOOBACKER @ ABU, AGED 32 YEARS, S/O. MYTHEEN, NARANAKOTTIL HOUSE, POOMATTOM KAVALA BHAGAM, NELLIKUZHI KARA, ERAMALLOOR VILLAGE. BY ADVS.SRI.GEO PAUL SRI.S.ASHOK KUMAR. SRI.NOEL JOSEPH SRI.C.R.PRAMOD SRI.K.V.REJANISH SRI.SANU MATHEW SRI.M.B.SANDEEP RESPONDENT/COMPLAINANT: - ----------------------------------------------- STATE OF KERALA, REPRESENTED BY C.I. OF POLICE, KOTHAMANGALAM, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SPL. PUBLIC PROSECUTOR SMT. AMBIKA DEVI , FOR ATROCITIES AGAINST WOMEN AND CHILDREN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-11-2017. THE COURT ON 14.12.2017 DELIVERED THE FOLLOWING: DMR/- ## **A.M.SHAFFIQUE & P. SOMARAJAN, JJ.** ------------------------------------------------ Crl.Appeal No.1039 of 2011 -----------------------------------------------Dated this the 14[th] day of December, 2017 ## J U D G M E N T ## **Somarajan, J.** The accused came up with this appeal challenging the judgment of conviction and order of sentence passed under Section 302 IPC in Sessions Case No.300/2009, dated 25.04.2011, of the Additional Sessions Judge (Adhoc-II), Ernakulam. 2. The case was originated in connection with the death of a lady by name Bindu @ Sulu at about 7.45 p.m on 07.05.2009. The prosecution case is that the accused and the victim were residing together for the last four years in her house at Nellikuzhi. On the ill-fated day, she herself poured kerosene over her body so as to threaten the accused that she would commit suicide. Taking that advantage, accused set her on fire by using a match stick. In that attempt, he had also sustained some burn injuries. Though she was immediately removed to the nearby Crl.Appeal No.1039 of 2011 2 hospital, from there to the Medical College Hospital, Kottayam, she succumbed to the injuries by 10.45 a.m on the next day, ie. on 8.5.2009. The learned Sessions Judge, relying on the dying declaration exhibited as P1, the entry in the wound certificate - Exhibit P2 and the oral evidence of PW1 to PW3 and PW9, found the accused guilty of the offence punishable under Section 302 IPC and convicted thereunder and sentenced to undergo imprisonment for life and to pay compensation of Rs.30,000/- to the kids of the deceased lady, in default, to undergo simple imprisonment for six months by the impugned judgment. 3. There is no eye witness to the alleged incident. One of the main incriminating circumstance relied on by the prosecution is Exhibit P1, dying declaration recorded by PW1 Doctor while the victim was undergoing treatment at Medical College Hospital, Kolencherry. PW1 is the Associate Professor of Surgery in Medical College Hospital, Kolencherry. On 07.05.2009 she recorded Exhibit P1 dying declaration of Bindu. She had undergone a lengthy cross-examination. Nothing was brought out to discredit her evidence except the admission made by her Crl.Appeal No.1039 of 2011 3 that before recording the dying declaration she came to know about the alleged cause from other Doctors who attended the patient. It is based on Exhibit P18 requisition, PW1, the Associate Professor of Surgery, recorded the dying declaration of the injured as she has sustained 100% burn injuries covering almost all parts of her body. 4. Exhibit P1 dying declaration recorded by the Doctor was challenged by the appellant mainly on the reason that: (1) the victim had sustained 100% burn injuries which would make the alleged dying declaration not acceptable in view of the extensive nature of burn injuries which comes to 100% and no reliance can be placed on it (2) the requisition made by PW16, Sub Inspector of Police to PW1, Doctor, instead of summoning concerned Magistrate for recording the dying declaration, in the given circumstances is vitiated and no satisfactory explanation was forwarded by the prosecution why Exhibit P18 requisition was given to PW1 during night time immediately after the admission of the victim to the hospital. (3) the fact that she succumbed to the injuries on the next day morning by 10.45 a.m. would also Crl.Appeal No.1039 of 2011 4 vitiate Exhibit P1 dying declaration which was recorded just few hours before her death and at no stretch of imagination it can be said that she was in a fit mental condition to give a dying declaration at the time when Exhibit P1 was recorded. (4) the thumb impression of the victim was also taken in Exhibit P1 dying declaration instead of getting her signature and it would _prima facie_ show that she was not in a position to affix her signature (5) that the dying declaration was recorded in the presence of police officials is vitiated (6) in the dying declaration she had given a false identification of the accused as her husband. (7) the dying declaration found to be signed by two other Doctors would _prima facie_ show that there is an attempt to show the same as genuine by obtaining the signature of two other Doctors. 5. As far as the dying declaration is concerned, what is material is the fitness of the victim to give a statement regarding the cause of her death. The extensive nature of injuries/burn injuries sustained by the victim is a relevant factor to be looked into. The fitness of the maker should be tested in relation to the injuries sustained by him/her and also his/her ability to speak Crl.Appeal No.1039 of 2011 5 about what actually happened. The time in which the statement was given is also a relevant factor and there cannot be a straight jacket formula to assess the genuineness of the dying declaration and the fitness of the maker. It has to be tested in relation to the attending circumstances and the assessment made by the medical practitioner regarding the capability and fitness of the victim. The fact that the victim had sustained 100% burn injuries cannot itself throw away the dying declaration recorded, though it is a relevant factor to be considered. Unless there is something inherently defective, the Court cannot substitute its opinion for that of the Doctor. The certification made by PW1 Doctor, attested by two other Doctors, would sufficiently show that the victim was in a sound state of mind and fully oriented and capable of giving answers to questions asked throughout the time of deposition. The Apex Court in **Mafabhai Nagarbhai Raval v. State of Gujarat** [(1992) 4 SCC 69] held that “a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration unless there existed some inherent and apparent defect.” Crl.Appeal No.1039 of 2011 6 ## 6. Then again in **Vijay Pal v. State (Government of NCT** **of Delhi)** [(2015) 4 SCC 749] the Apex Court repelled the submission with regard to the dying declaration made by the deceased who had sustained 100% burn injuries stating that:- _“22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breathe the truth, for there is even no suggestion to that effect.”_ 7. The legal position was again reiterated by a three Judge Bench of the Apex Court in **Pawan Kumar v. State of H.P.** [2017 (2) KLT 2089 (SC)]. 8. While recording Exhibit P1 dying declaration, PW1 had satisfied herself that the victim was fully conscious and oriented. Police was not present at the time of recording the dying 7 Crl.Appeal No.1039 of 2011 declaration. It was recorded by PW1 based on the requisition made by the Sub Inspector of Police, PW16, on realizing the extensive nature of the burn injuries sustained which comes to 100%. The fact that the assistance of the Magistrate was not obtained by the police to record the dying declaration hence not fatal and it will not, in any way, vitiate the dying declaration recorded by an Associate Professor of Surgery attached to the same hospital under the requisition of Police. The fact that the victim succumbed to the injuries on the next day morning by 10.45 a.m. would sufficiently show the condition of the victim and it would justify the action taken by the Sub Inspector of Police, PW16, in issuing Exhibit P18 requisition to the Doctor, PW1, for recording the dying declaration. No enmity or hatredness either brought out or even suggested by the appellant during the cross-examination of PW1, who is a Doctor by profession, an Associate Professor of Surgery attached to Kolencherry Medical College Hospital and certified the capability and competency of the victim to give a dying declaration. Further, Exhibit P1 dying declaration was recorded by PW1 and Crl.Appeal No.1039 of 2011 8 attested by two other Doctors by affixing their signatures, who had also witnessed the recording. Thump impression of the victim was also taken in Exhibit P1 dying declaration. A person who had suffered 100% burn injuries may not be in a position to affix her signature on the dying declaration and when her thumb impression was obtained in the presence of two other Doctors who attested the dying declaration, it can be safely accepted. It was recorded by 9.25 p.m. and recording was completed by 9.40 p.m. The patient was brought to the hospital and admitted there by 9.15 p.m. The alleged incident happened by 7.45 p.m. on the same day. Nobody else was there in the hospital to have some tutoring to the victim. But, on the other hand, the fact that the victim succumbed to the injuries on the next day at 10.45 a.m., just after 10 hours, would show that she was in her deathbed and it gives more sanctity to the dying declaration recorded by PW1, an Associate Professor of Surgery. The accused and the victim were living as husband and wife for the last four years. Exhibit P1 dying declaration given by the victim also discloses her relationship with the accused. Crl.Appeal No.1039 of 2011 9 So the identify of the accused made in the dying declaration as her husband cannot be termed as a falsehood as there existed a relationship of husband and wife between the accused and the victim though no valid marriage was solemnized. Exhibit P1 dying declaration testified and substantiated by the oral evidence of PW1, attested by two other doctors, is standing on a high pedestal possessing high probative value. Further, Exhibit P1 dying declaration is so specific, unambiguous and clear and not confined only to the act of the accused. She had disclosed her name as Bindu @ Sulu and also disclosed the house name and the place wherein the house is situated by stating that Mekkekara Kudi, Nellikuzhi, Kothamangalam. The name of her children with their age was also disclosed by her as Nikhil aged 9 years and Sona aged 6 years. The name of her husband/the accused herein was also disclosed by her as Abu with his address Naranakottil, Nellikuzhi. She had also disclosed that they were living together for the last 4 years, but no marriage was solemnized. The details of injuries sustained by her and how it has happened was also disclosed by Crl.Appeal No.1039 of 2011 10 her stating that she herself poured kerosene over her body so as to threaten her husband that she would commit suicide. But, her husband set her on fire. She had also disclosed the time in which the alleged incident took place and the place wherein the incident happened. Exhibit P1 dying declaration discloses the role played by the victim herself by pouring kerosene over her body. The motive behind the incident was also disclosed by her stating that her husband used to doubt about her chastity and there were frequent quarrel. All these ten answers were given on the specific questions put up to the victim/patient by the Doctor and it was recorded as questions and answers. It is also certified in the same document that the patient was fully oriented and capable of giving answers to the question asked through out the time of deposition. It is also certified that it was read over to the victim and her thumb impression was obtained in the presence of two other Doctors, Dr. Priyadarshini C. Pillai and Dr. Akhil Babu who had also affixed their signature in the document. The ten questions put up during the course of recording dying declaration and the answers given were specific, clear and unambiguous. All 11 Crl.Appeal No.1039 of 2011 these answers are true version of the place of incident, house name, name and age of children, name and address of the husband, the period in which they were residing together and the time, place and manner in which the incident happened. It inspires full confidence and can be safely accepted. 9. The truthfulness of the dying declaration made by the victim before PW1 is further evident from the fact that she had shared the blame for the alleged incident by admitting that she herself had poured kerosene over her body with the intention to threaten the accused. In other words, she had admitted her alleged role in pouring kerosene over her body by herself and the only blame against the accused is that he ignited the match stick and set her ablaze. If her intention was to put the blame of the alleged incident entirely on the accused, there may not be any occasion for her to admit her role in the alleged incident covering the initial part; namely pouring kerosene over her body by herself. This would be an indication that what is spoken by her to PW1 is truthful and trustworthy. Crl.Appeal No.1039 of 2011 12 10. The oral evidence given by PW9 gives sufficient corroboration to the oral evidence of PW1 regarding the manner in which the alleged incident happened. PW9, father-in-law of PW7 who is the Sister of the deceased, had given oral evidence stating that the victim on the same day while undergoing treatment at Kottayam Medical College Hospital disclosed the alleged incident stating that she herself had poured kerosene over her body so as to threaten her husband Abu. But, thereon Abu lighted a match stick and set her ablaze. She was in Intensive Care Unit at that time. PW9 made a visit to the victim accompanied by his wife and son and nothing was brought out to discredit his oral evidence. On the other hand, the oral evidence given by PW9 found to be trustworthy, not tainted by any ill-will, ill thought or hatredness. The dying declaration alleged to have been made by the victim before PW9 is exactly in tune with what she had spoken to PW1 and it is really partially exculpating and partially inculpating admitting that she herself had poured kerosene over her body, but it was ignited by her husband which gives full support to the version given by PW1 and the dying Crl.Appeal No.1039 of 2011 13 ## declaration recorded thereof, exhibited as P1. 11. According to the prosecution, Exhibit P1 dying declaration is the second one as she had disclosed the history and cause of her injury in Exhibit P2 wound certificate drawn on the same day at 9.15 p.m. at the same hospital. It is true that in that certificate the victim was stated to be brought by police. In Exhibit P2 wound certificate the history and cause of injuries are stated to be “alleged history of burns, allegedly by patient (conscious), inflicted by her husband Aboobacker, 07.05.2009 at 7.30 p.m at Nellikuzhy.” The name of patient is entered as Bindu Abu. The date and hour of examination is stated as 7.5.2009 at 9.15 p.m. Only that statement or information received from the victim entered in the wound certificate alone is relevant and no much probative value can be attached to the information supplied by any other person who brought the injured, especially when the injured was brought by the police. In the instant case, the injured was brought by the police at Kothamangalam as per entry No.6 in the wound certificate. But, the cause of injury and history seemed to be given by the victim herself and it is well Crl.Appeal No.1039 of 2011 14 evident from the incorporation of a word within bracket “conscious” during the course of recording of history and alleged cause of injury. The word “conscious” incorporated in the history within bracket refers the condition of the patient/victim. It forms part of history and cause of injury recorded in the wound certificate. PW2 is the witness who had drawn Exhibit P2 wound certificate. He had asserted during cross-examination that the alleged information was supplied by the patient. This would satisfy another dying declaration, though not touching on other crucial aspects as to how it was happened, but gives sufficient corroboration to the other two dying declarations as spoken by PW1 and PW9. 12. One of the arguments advanced by the appellant is that chances of catching fire accidentally to the victim has not been ruled out by the prosecution and the victim herein might have been under a wrong impression that it was ignited by her husband without noticing how the fire caught on her dress and that in that situation also the dying declaration alleged to have been given by her though found to be trustworthy, no conviction Crl.Appeal No.1039 of 2011 15 can be arrived at without ruling out the above said possibility of a wrong impression. But, we are not in a position to accept the above said argument for the reason that no source of fire or flame was there at the place of occurrence and it is well evident from the Scene Mahazar as well as Site Plan exhibited as P13 and P7. The presence of a kerosene lamp kept over a table within the kitchen alone is reported in the Scene Mahazar. But, the place of occurrence is on the way leading from the kitchen to the bedroom, i.e more or less 5 meters away from the table wherein the kerosene lamp was kept. No other source of fire or flame was brought out within the reach of an accidental fire over the body of the victim, doused in kerosene. 13. Yet anther incriminating circumstance was also brought out. The accused had opted to advance a false explanation how the victim caught fire while they were alone and within the secrecy of their house. During his examination under Section 313 Cr.P.C. and while giving evidence under Section 314 Cr.P.C. as a witness (DW1) he had admitted that none else was there in the house at the time when the alleged incident was happened. Crl.Appeal No.1039 of 2011 16 While he was in the house the victim made a request and demand to marry her as she was pregnant by six months at that time. The request was rejected on the ground that she is having illicit relationship with others and disputed the paternity of the child in her womb. He left the house making a declaration that he had stopped all his relationships with the victim. It is thereafter he heard a hue and cry and saw the victim on fire. Further, according to him, he came back to the house on seeing the fire and tried to defuse the fire. The said version is totally against what is deposed by PW11, one of the witnesses, who came to the place of occurrence and found the house locked inside. Further, according to him, when he gone out of the house the victim prevented him by holding on his body. But, he pushed her aside and went out of the house. But, no such version was given by the accused during his examination under Section 313 Cr.P.C. Yet another version given by the accused is that when he came back to the house some of the neighbors also accompanied him, but had given a go-back subsequently stating that he alone went to the house and nobody accompanied him. Crl.Appeal No.1039 of 2011 17 The language used by the accused in his statement submitted in answer to his examination under Section 313 Cr.P.C. though not relevant found to be highly disturbing and not expected from a person of accused. 14. The legal position settled in **Trimukh Maroti Kirkan v. State of Maharashtra** (2006 KHC 1469), **State of West Bengal v. Mir Mohammed Omar and Others** [(2000) 8 SCC 382], **Balram Prasad Agrawal v. State of Bihar and Others** [AIR 1997 SC 1830] and **Ram Gulam Chaudhary and Others v. State of Bihar** [(2001) 8 SCC 311] squarely applicable when the accused was found in the company of the victim within the secrecy of their dwelling house and nobody else was there in the said house at the time of alleged incident. The version given by the accused how the alleged incident was happened when found to be false would be an additional link pointing towards the guilt of the accused. The prosecution has established the chain of circumstances without any missing link pointing towards the guilt of the accused and no other hypothesis inconsistent with the guilt of accused is possible. As such, the finding of guilt of accused Crl.Appeal No.1039 of 2011 18 under Section 302 IPC and the conviction thereunder do not call for any interference by this court. 15. The sentence awarded, being a lesser one, does not call for any interference by this Court. Hence, appeal fails, deserves only dismissal and we do so. In the result, appeal is dismissed confirming the finding of guilt of accused for the offence under Section 302 IPC and the conviction and sentence thereunder. ## **A.M.SHAFFIQUE (JUDGE)** ## **P. SOMARAJAN (JUDGE)** DMR/-