Ahammed Kutty S/O Imbichi Mammad Haji v. State of Kerala & Subaida & Moidu Basheer

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE &** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 5TH DAY OF FEBRUARY 2018 / 16TH MAGHA, 1939** **CRA(V).No. 1039 of 2012** **AGAINST THE ORDER/JUDGMENT IN SC 703/2007 of ADDL.DISTRICT AND SESSIONS COURT, FAST TRACK (ADHOC),KOZHIKODE DATED 23-11-2011** ## **APPELLANT(S)/VICTIM** **AHAMMED KUTTY S/O.IMBICHI MAMMAD HAJI,KEEZHAN KALATHIL(HOUSE), KUNNAMANGALAM,KOZHIKODE.** **BY ADV.SRI.MOHANAN V.T.K.** ## **RESPONDENT(S)/COMPLAINANT & ACCUSED:** **1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** ## **2. SUBAIDA,** **W/O.MOIDU BASHEER,PILATHOTTATIL(H)NALUKANDIYIL VEEDU,PILASSERY,KUNNAMANGALAM-673001.** ## **3. MOIDU BASHEER,** **S/O.MUHAMMED,PILATHOTATHIL(H) NALUKANDIYIL VEEDU, PILASSERY,KUNNAMANGALAM-673001.** **R2,R3 BY ADV. SRI.LAL K.JOSEPH R2,R3 BY ADV. SRI.P.MURALEEDHARAN (THURAVOOR) R2,R3 BY ADV. SRI.V.S.SHIRAZ BAVA R2,R3 BY ADV. SRI.A.A.ZIYAD RAHMAN** **R1 BY ADV. SMT.AMBIKA DEVI S, SPL.PUBLIC PROSECUTOR FOR ATTROCITIES AGAINST WOMEN & CHILDREN** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 10-012018,THE COURT ON 05-02-2018 DELIVERED THE FOLLOWING:** ## **A.M. SHAFFIQUE & P.SOMARAJAN, JJ.** ========================== Crl.Appeal (V) No. 1039 of 2012 ==================== Dated this, the 5[th] day of February, 2018 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the legal heir of the victim challenging judgment dated 23/11/2011 in Sessions Case No.703/2007 of the Additional District and Sessions Court, Fast Track (Adhoc-I), Kozhikode. By the aforesaid judgment, respondents 2 and 3 herein, who were the accused in the case, were acquitted. The accused were chargsheeted u/s 302, 498(A) r/w 34 I.P.C. To prove the charges, prosecution examined PW 1 to PW25 and marked Exts.P1 to P35(a). The material objects produced and proved were MO1 to MO6. The defence examined DW1 to DW3 and marked Exts.D1 to D3. 2. The prosecution case was that, accused 1 and 2 with the common intention to do away Shareefa and her minor child sprinkled petrol in their bed mattress. The power supply was disconnected and Shareefa was prompted to light the candle and Crl.Appeal (V) No.1039/2012 -:2:- when she refused, the first accused entered the bed room and set fire to the bed mattress, came outside and locked the said room. When the mattress caught fire, Shareefa woke up the child and cried aloud. Neighbours rushed to the house, opened the door by force and in the meantime, victim and the child suffered severe burn injuries. They were taken to the Medical College hospital. The child died on the next day itself and Shareefa died on the 79[th] day of the incident. The victim is the first wife of the 2[nd] accused and the first accused is the second wife of the 2[nd] accused. After the second marriage of the 2[nd] accused and the birth of the child, all of them were residing in a new house. Prosecution also alleged that while living together, the first accused had enmity with Shareefa and the newborn child. It was with the intention of causing their death that she committed the aforesaid act on 8/10/2005. 3. No eye witness has been arrayed by the prosecution and the entire case rests upon circumstantial evidence. The fact that Shareefa along with the minor child and the first accused were in the same house on the fateful day is not in dispute. The fact that the 2[nd] accused who is a lorry driver had gone away for Crl.Appeal (V) No.1039/2012 -:3:- work on the said day is also not in dispute. The fact that Shareefa and the minor child died due to the burn injuries caused at their residence is proved by the evidence of PW15, the Doctor who issued the wound certificate Ext.P17 in respect of the minor child Mohammed Adil and the opinion of PW16 the Doctor who conducted postmortem of the minor child. Ext.P18 is the postmortem certificate. Ext.P19, the wound certificate of Shareefa was issued by PW17, the Doctor in the Surgery department of Medical College, Kozhikode. Ext.P13 is the case sheet in respect of Shareefa which gives the details of the treatment given to her. PW20 is the Professor of Surgery, Government Medical College, Calicut who treated Shareefa. PW8 is the Assistant Professor of Forensic Medicine who conducted postmortem of Shareefa. As far as Mohammed Adil is concerned, Doctor opined that he died due to deep burns involving 50% of total body surface. In respect of Shareefa, the opinion was that she died due to metabolic imbalance following 36% burns. He also opined that the acute adrinal insufficiency due to secondary adrinal hemorrhage had precipitated death. 4. PW4 is a neighbour of the accused as well as the victim Crl.Appeal (V) No.1039/2012 -:4:- who rushed to the house hearing a hue and cry by Shareefa. He along with certain other neighbours had taken Shareefa and the minor child to hospital after seeing that they suffered burn injuries. These facts clearly indicates that the cause of death was on account of the burn injuries suffered by the victims and the complications arising therefrom. 5. The question was whether it was a case of homicide or not and if it is a case of homicide, whether the accused are involved in the crime. The materials collected from the house of the accused where the victims suffered burn injuries were MO1, a burnt maxi, MO2, an underskirt, half of which was already burnt, a few pieces of cotton MO3 and MO3(a), a clock slightly burnt MO4, a candle MO5 and a plastic bottle MO6. Exts.P9 and P9(a) are the analysis reports. The report of analysis indicates that traces of petrol was detected in item Nos.1 to 11 and item No.13 was identified to be petrol which is highly inflammable. This fact proves that petrol was the inflammable article by which the fire was caused. 6. The prosecution mainly relied upon the statements given by Shareefa who died on the 79[th] day in order to prove their Crl.Appeal (V) No.1039/2012 -:5:- case. She had given a statement to the police as Ext.P2 on the basis of which the FIR was registered. She had also given a statement to the Magistrate on the very same day u/s 164 Cr.P.C. The Court below after having considered the aforesaid issues found that there is inconsistency in the statements given by the victim and therefore it is not safe to rely upon the same in order to implicate the accused. The second accused admittedly was not present in the place of occurrence at the relevant time and the complicity of the first accused to the crime was not proved. 7. Learned counsel for the appellant submitted that there are various circumstances which had been proved in the case to implicate the first accused to the crime and since second accused had a common intention with the first accused to do away with the victims, Court below erred in finding that such circumstances were not proved and thereby acquitting the accused. The accused were not entitled for any benefit of doubt as the evidence and circumstances leading to the same clearly proves the complicity of the first accused to the crime. Learned counsel points out that in the first statement, Ext.P2, which was recorded by PW21, the Sub Inspector of Police on 9/10/2005 at 9.45 am itself amounts to Crl.Appeal (V) No.1039/2012 -:6:- a dying declaration and implicates the first accused to the crime. Ext.P21 is the FIR. In Ext.P21, Shareefa has stated that her husband's second wife Subaida kept petrol in her room. Without knowing about the same, she lighted a safety match and immediately it went ablaze. She was married to Basheer (A2) for the last eleven years. A2 is a lorry driver. They did not have any children for the last 10 years. Therefore, her husband with her consent married Subaida (A1) 1½ years back. Seven months before, she gave birth to a child. She along with her child, Subaida and her husband were living together. There are no issues between them. Her husband had gone in a lorry on Thursday. On 8/10/2005, at about 9.00 p.m., after food, she and her child went to sleep in her room. The door was not locked. By 12.00 midnight, Subaida (A1) came to the room for having food. But there was no light. She asked her to light a lamp and she went out. For lighting a candle, she took a matchstick and lighted it. Suddenly fire engulfed the area. She took the child and attempted to open her door. It was locked from outside. She could not open the door. There was a petrol like liquid in a bottle in the room. She opened the window and cried aloud. People in the locality came running. Crl.Appeal (V) No.1039/2012 -:7:- They opened the door and she and her child were taken to the hospital. According to her, she and her child suffered the burn injuries since Subaida (A1) had kept the petrol in her room without her knowledge. She also stated that she could not sign the statement as both her hands were burnt. First of all, in this statement, there is no mention about any ill-will between the victim, her husband nor with the first accused Subaida. The only overt act which she complained against the accused was that she kept a bottle of petrol like commodity (on analysis it was found to be petrol) in a bottle without her knowledge. Secondly, she called her by about 12 midnight and asked her to light the lamp as there was no power. In the statement given to the Magistrate, which is produced as Ext.P1, a slightly different version had been spoken. The statement was recorded by the Magistrate on 9/10/2005 at 6.05 p.m pursuant to the requisition from the Sub Inspector of Police, Kunnamangalam Police Station. The Doctor opined that she was having 36% burns but she was fully conscious and oriented and was in a fit state to give statement. After the preliminary questions, when the Magistrate asked how she suffered the injuries, she stated that Subaida had taken away the Crl.Appeal (V) No.1039/2012 -:8:- fuse by about 9 p.m. She brought the candle and matchbox. When the victim asked first accused why she is doing this, she had some doubt. When she went for sleep, she kept a bottle of petrol on her bed side near her head. By around 12 midnight, first accused lighted the candle causing burn to the victims. When Subaida saw the fire, she closed the door from outside. She also stated that there was somebody behind her. Subaida was four months pregnant. Her husband was a lorry driver and he had gone for work. She cried aloud and nearby residents came and broke open the door. 8. A few other facts require to be taken note of especially the wound certificate issued by the Doctor when both of them were taken to the hospital. Exts.P17 and P19 are the wound certificates. Ext.P17 is the wound certificate of the minor child issued by the Doctor on 9/10/2005. In the column relating to details of injuries, it is stated that by 12 midnight on 8[th] , it was seen that the child suffered burn injuries. The Doctor also opined that the information was given by one Rasheed. Ext.P19 is the wound certificate of Shareefa wherein also it was recorded that “ÍVJÞÕÞÏ Ì×àùßæa øIÞ¢ ÍÞøc ØáèÌÆ æÉçd¿ÞZ ©ùBߵ߿AáK Crl.Appeal (V) No.1039/2012 -:9:- ×ùàËÏáæ¿ ÎáùßÏßW ²ÝßAáµÏᢠ×ùàË ÄàæMGß ©øºîçMÞZ ©IÞÏ æÉÞUW”. There is nothing to indicate that the information was given by the victim herself. 9. Before considering the aforesaid facts, it would be useful to refer to defence evidence as well. Defence examined 3 witnesses DW1 to DW3. 10. DW1 is Dr.Kunhikoyamu who was Head of Department Psychiatry, Medical College hospital, Kozhikode. He was examined to prove Ext.D1 series which are prescriptions in the name of Shareefa from 25/5/2001 to 26/8/2004 for different periods. He also proved the file and other prescriptions as Ext.D2 series. He however stated that some medicines were prescribed for depression, hypertension and migraine. However, he further deposes that he does not remember whether Shareefa was treated as an inpatient. This evidence apparently was adduced to prove that Shareefa was having some mental disorder and she was taking treatment for the same. 11. DW2 is a painter by profession. He had done the painting job in the house of the accused about four years back. He deposed that the death might have occurred in the house four Crl.Appeal (V) No.1039/2012 -:10:- days after the painting work. He worked there for six days. He had purchased materials for the work. He had also purchased paint, thinner, polish, sandpaper etc. The balance materials were kept in the house itself. He had kept a thinner in a bottle as there was balance of 100 ml. It is an inflammable article. He also stated that the Police had summoned him and questioned with reference to thinner bottle. He had identified the same. The Circle Inspector of police had taken it on mahazar. He identified the thinner bottle as it was in a burnt condition. He however stated that he identified the bottle since Sub Inspector told him that it was recovered from the house of the victim. 12. But the scientific evidence produced in the case shows that inflammable material in the room of the deceased was petrol and balance quantity of petrol like material was also available as per the evidence of PW4. The first accused herself was examined as DW3. She stated that she was 4 months pregnant during the relevant time and she was not in a position to take any food as she was vomiting. Shareefa was asked to remain at her brother's house. Her husband told her that she would be taken back after he comes back. Her husband went for job thereafter. After three Crl.Appeal (V) No.1039/2012 -:11:- four days, Shareefa came back with the child. When she came back, first accused was fasting whereas Shareefa was not fasting. She did not speak any word. First accused asked her to collect the meat which was kept in the fridge in the nearby house and to cook the same. Shareefa did not say anything. She was not in a mood to talk. A1 went to purchase tablets and fruits. When they had to break fasting, she made rice and some other eatables. Shareefa threw the plate away in which some eatables were kept stating that her father had purchased the plate. Shareefa along with the child was sitting in the veranda. A1 after her prayers went for sleep and Shareefa was sitting near the veranda. She was asked to come inside. But she remained there. A1 slept. By about midnight, she heard a sound. When she woke up, room of Shareefa was kept closed. Between the doors, she could see fire. She attempted to push open the door. She could not open the door. She asked Shareefa to open the door and cried aloud. Shareefa herself had opened the door and came out. Someone was hitting on the outside door. Normally the key of the outside door is kept in a specific place. When enquired, Shareefa did not say anything. A1 asked the people to break open the door. Crl.Appeal (V) No.1039/2012 -:12:- Immediately Shareefa told her that key was underneath the phone. Immediately she took the key and opened the main door. The neighbours, aunty, Shaji etc., came inside. Though Shareefa came out, fire was still there. There was no fire on her body. A1 opened the door, went outside and sat on a sack containing metal. After some time, a vehicle came and Shareefa and the child were taken to the hospital. One Shaji asked his wife to take A1 to his house and accordingly she went to Shaji's house. In the 313 statement of the first accused, she had denied the incriminating statements against her. 13. PW4 is the first person who had come to the scene of occurrence. He deposed that by around 12 midnight on the said day, his wife called him stating that she heard some sound. He came out of his house. He was being called. He understood that it was Shareefa. He saw that there was fire in Shareefa's room. He immediately called Sadiq and Salam who are also neighbours. They reached Shareefa's house. There was no light in Shareefa's house whereas there was light in their house. He came and knocked at the door. Outside door was locked from inside. Nobody opened it. Shaji Rajan also came and he also knocked at Crl.Appeal (V) No.1039/2012 -:13:- the door. Still it was not opened. Thereafter, Sadiq knocked at the door and it was opened. From the veranda, the door opens to the dining hall. A1 was standing on the right side of the said room and Shareefa along with the child were standing on the left side. He saw them in the light of the fire. There was no other light inside the room. When they tried to enter the room, Shareefa asked them not to go there, as there was petrol in the room. Shareefa was asked to sit in a chair in the veranda. Shaji Rajan was asked to call a vehicle. Shareefa's bed and the cot was on fire. There was no fire on the floor. He went to take water to diffuse the fire. In the meantime, Haridasan brought a bottle containing some liquid which looked like petrol. The top portion of the bottle was damaged due to the heat. Vehicle came and Shareefa and the child were taken to the hospital. Thereafter, they put off the fire. There was nobody else other than Shareefa and the first accused. Shaji asked first accused as to what happened and she said she does not know. The bottle which contained petrol was taken by Shajiraj and he kept it there after closing the bottle with a cork. 14. Though dying declaration is a substantive piece of evidence which could be relied upon as a strong circumstance to Crl.Appeal (V) No.1039/2012 -:14:- prove the guilt of the accused, when there is variation in the statements given by the deceased at different points of time, there is every chance of embellishment especially after interference by the relatives and friends. The principle underlining conviction based on dying declaration is well settled. In _**Mukesh v. State (NCT of Delhi**_ ) [(2017) 6 SCC 1], the Apex Court had occassion to consider the evidential value of dying declaration. It is held that a dying declaration is an important piece of evidence and if it is found to be veracious and voluntary, it could be the sole basis for conviction. However, the Court while admitting a dying declaration must be vigilant towards the need for “ _compos mentis certificate_ ” from a Doctor as well as the absence of any kind of tutoring. The Court also placed reliance upon various earlier judgments including _**Atbir v. Government (NCT of Delhi)**_ [(2010) 9 SCC 1] wherein the said court had laid down certain guidelines with respect to the admissibility of dying declaration which reads as under:- _“22. (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court._ _(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the_ Crl.Appeal (V) No.1039/2012 ## -:15:- _statement and that it was not the result of tutoring, prompting or imagination._ _(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration._ _(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence._ _(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence._ _(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction._ _(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected._ _(viii) Even if it is a brief statement, it is not to be discarded._ _(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail._ _(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.”_ In the case on hand, we find slightly different versions in Exts.P1 Crl.Appeal (V) No.1039/2012 -:16:- and P2. In Ext.P2, the victim states that she herself had attempted to light the candle when the fire broke off whereas in Ext.P1, she says that the first accused had lighted the fire. Another circumstance which requires clarification is, in Ext.P2 statement, victim stated that A1 had come to her room at 12 midnight, asked her to light the lamp and after closing the door, went outside. After the fire, when she attempted to open the door, it was locked from outside. In the statement to the Magistrate, she stated that first accused kept a bottle of petrol near her cot on the side of the head and at 12 midnight, she came, lighted the candle and when she saw the fire, she went out closing the door. 15. But from the evidence of PW4, it is clear that they were knocking at the door and nobody opened. Ultimately, door was opened. When the door was opened, first accused and the victim were in the hall and not in the room. Therefore, in between, the door to the room was opened. Whether the room was closed by the victim or by the first accused is not known. According to the accused, the door to the room was locked by victim herself. 16. Yet another factor is the acquisition of bottle of petrol. Crl.Appeal (V) No.1039/2012 -:17:- As suggested by the defence and as spoken to by DW2, it was not turpentine. Scientific evidence shows that the inflammable material was petrol. According to victim, A1 had bought petrol and kept it in her room. She does not say whether it was opened or sprinkled in any place. The bottle was found by Shaji in a crumbled fashion which contained certain liquid which was later found to be petrol. Who purchased the petrol and who had brought it to the room of the victim, other than the statement of the victim, there is no other material. Merely for the reason that a bottle of petrol is kept in a room will not make it inflammable. Of course, if the bottle is open and the fire is lit near the open end of the bottle, it may cause fire. But in this case, the victim says that she attempted to light the candle with the matchstick and suddenly fire broke out. To the very fact of lighting the candle with the matchstick by herself or by the first accused, there are two different versions. Therefore, when on a material aspect which has to be proved, to infer the complicity of the accused to the crime, the dying declaration is a materially discrepant, it is not safe to rely upon the same and convict the accused. 17. The Court below had also considered the entire aspects Crl.Appeal (V) No.1039/2012 -:18:- of the matter. While exercising appellate jurisdiction, when an accused is acquitted, unless it is found that there is perversity in the appreciation of evidence or the Court below has committed serious illegality, it may not be proper for the appellate court to set aside the judgment merely because a different view is possible. In a case which rests upon circumstantial evidence alone, all the circumstances have to be proved to the hilt. There should not be any hypothesis which leads to an inference of innocence of the accused. 18. Of course, as rightly pointed out by the learned counsel for the appellant, the accused and victim only were present at the house. But who brought the petrol, was it kept inside the bed room by the first accused or by the second accused, was it kept open or was it kept without any lid, when did the victim see it for the first time, these are all matters for which there is no specific answer. When serious doubts remain to be clarified in the prosecution case, as rightly observed by the Court below, the accused has to be given the benefit of doubt. As far as the second accused is concerned, he has been roped in to prove the offence u/s 498(A) also. But the Court below has already Crl.Appeal (V) No.1039/2012 -:19:- found that there is no such evidence to prove such facts. A different view, according to us, is not possible. In the result, we do not find any error in the judgment warranting interference. Appeal is, therefore, dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **P.SOMARAJAN, JUDGE** Rp //True Copy// PS to Judge