Babu @ Rajendran @ Baburaj v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH TUESDAY, THE 15TH DAY OF NOVEMBER 2016/24TH KARTHIKA, 1938 CRL.A.No. 298 of 2012 () ------------------------AGAINST THE JUDGMENT IN SC 324/2009 of ADDL. SESSIONS JUDGE (ADHOC)I, KALPETTA DATED 04-07-2011 APPELLANT(S)/ACCUSED: ------------------------------ BABU @ RAJENDRAN @ BABURAJ AGED 44 YEARS, S/O. THANKAPPAN, KARATH HOUSE, VELLACHIRA, AALOOR VILLAGE, MUKUNDAPURAM TALUK, TRICHUR DIST.(C-9281, VIYYUR CENTRAL JAIL) BY ADVS.SRI.SHABU SREEDHARAN SRI.C.G.SALIM SRI.UDAYAKUMAR SREEDHARAN SRI.B.BALA PRASANNAN SMT.RESHMA ABDUL RASHEED RESPONDENT(S)/COMPLAINANT: -------------------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-682031. BY SPECIAL PUBLIC PROSECUTOR SMT.AMBIKA DEVI THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T. RAVIKUMAR & K.P.JYOTHINDRANATH, JJ. ========================== Crl.Appeal No.298 of 2012 ==========================** Dated this the 15[th] day of November, 2016 ## **JUDGMENT** ## _Ravikumar, J._ The sole accused in S.C.No.324 of 2009 on the files of the Court of Additional Sessions Judge (Ad hoc)-I, Kalpetta filed this appeal against the judgment convicting him for the offences under sections 201 and 300 of the Indian Penal Code. He was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of `2,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months for the offence under section 201, IPC. He was sentenced to undergo rigorous imprisonment for life and to pay a fine of `10,000/- and in default, to undergo simple imprisonment for a further period of one year for the offence punishable under section 302, IPC. The substantive sentences of **Crl.A.298/2012** 2 imprisonment were ordered to be run concurrently. 2.The crime was originally registered immediately on the death of Sheeba, the wife of the appellant, as unnatural death under section 174 of the Code of Criminal Procedure (Cr.P.C). Evidently, the investigation was conducted and a report was submitted before the Executive Magistrate. Later, after about five years since the incident, the appellant was arrested by PW20, the Deputy Superintendent of Police, Ernakulam Crime Branch Special Investigation Group-II in connection with another case. During interrogation, it was found that he jumped the bail, in another case. Upon suspecting that the appellant had a hand in the death of his wife, PW20 obtained permission from the Director General of Police for a further investigation in connection with the death of Sheeba and conducted it for a while. The investigation in that regard was continued by PW21 and on culmination of the investigation, he laid the final report before the Judicial First Class Magistrate Court-I, Sulthan Bathery. The learned Magistrate committed the case as per committal proceedings in C.P.123 of 2009 to Court of Sessions, Kalpetta and it was numbered **Crl.A.298/2012** 3 as S.C.No.324 of 2009 and the same was made over to the Court of Additional Sessions Judge (Ad hoc)-I, Kalpetta for trial and disposal. The learned Additional Sessions Judge framed charge for the offences punishable under sections 201 and 302, IPC and it was read over to the appellant. He pleaded not guilty and claimed to be tried. 3.The prosecution got examined PWs 1 to 23 and got marked Exts.P1 to P15 besides identifying MO1. After the closure of the prosecution evidence, the appellant was questioned under section 313, Cr.P.C. He denied all the incriminating circumstances put to him. Additionally, he stated that he got no occasion to reside along with PW5 in a cell in Sub Jail, Ernakulam or to make a confession that he had committed the murder of his wife Sheeba. Finding that the appellant was not entitled to be acquitted under section 232, Cr.P.C, he was called upon to enter on his defence. Apart from the contradictions got marked as Exts.D1 to D7 during the cross examination of the prosecution witnesses, the appellant had not tendered any evidence. The Trial court considered the oral and documentary evidence and ultimately, found that the prosecution had **Crl.A.298/2012** 4 succeeded in proving beyond reasonable doubt regarding the commission of offence under sections 201 and 302, IPC and consequently, convicted him for the said offences as aforesaid. 4.We will now refer to the evidence in this case. PW1 is the first informant. He was then a member of Sulthan Bathery Grama Panchayat from Ward No.1 and was a neighbour of the appellant and the deceased. He lodged Ext.P1 FIS based on which PW18 registered Ext.P1(a) dated 18.01.2003. According to him, on receiving information that one Sheeba who was residing in the house of Kuriachan on rent poured kerosene and set her ablaze, he went to their house. According to him, the said incident had occurred at about 4 a.m on 11.1.2003 and an old lady was also found there. When he reached there, he found sheeba lying on the floor with burn injuries and the appellant also there. He further deposed that he along with some persons took Sheeba to Government Hospital, Sulthan Bathery. During cross examination, he deposed that he did not see blood on Sheeba's head; but, found water on the floor of the house. He also deposed that a child was also seen standing nearby Sheeba and that **Crl.A.298/2012** 5 Sheeba told him that she herself poured kerosene and set her ablaze. He would admit that he gave a statement on a second time after five years since the incident and at that time, he stated that he got suspicion regarding the circumstances. He had also deposed that it was Sheeba who gave the telephone numbers of her family members from her memory and consequently, he intimated the matter to her kins. 5.PW2 Kuriachan is the owner of the house where the deceased and the appellant were residing and he is a pastor. According to him, he had been to Ernakulam on 10.1.2003 to attend certain theological meetings and on his return, he got down at Meenangadi and upon coming to know that Sheeba was hospitalised due to burn injuries, he went to the hospital. He deposed that initially, she did not tell anything regarding the cause of injuries and the accused was also kept silent on being asked about the reason for the incident. PW2 further deposed thus:- Later the appellant went for arranging an ambulance and in the meantime he enquired with Sheeba as to how she got injured. Sheeba told him that the appellant beat her and consequently, **Crl.A.298/2012** 6 she fell down and thereupon he poured kerosene all over her body and set fire on her. He surrendered MO1 stove to the police during the investigation and though Sheeba disclosed the cause of the injuries from the hospital, he did not divulge it to anyone for about five years. 6.PW3 is the mother of PW2. She is a neighbour of the deceased and the appellant. She would depose that at about 4 a.m., she heard a cry from the house where the appellant and the deceased were living. According to her, she overheard the appellant beseeching thus:- “¾ÞX æºÏñÄÞÃí ®Kí ÉùÏøáÄí.” She would further depose that after some days, she heard that Sheeba died from the hospital. According to her, it was she who reached the house first immediately after the incident and then Sheeba and their children alone were there. 7.PW4 is the father of the deceased. He was residing in Thrissur. He would depose that he reached the hospital along with PW7 on hearing the death of Sheeba. His oral account is to the effect that he saw the corpse of Sheeba from the mortuary and when he held **Crl.A.298/2012** 7 her head to give the last kiss, he found an injury on the left side of her head. He would further depose that the appellant had not attended the funeral, as by that time, he was taken into custody in connection with some other case and that the grand children were entrusted to Kannur Deenasaba Madom. He would further depose thus:- He came to know that the accused was undergoing imprisonment in connection with another murder case in Viyyur Jail and the death of his daughter was not a suicide. After arrest of the appellant, Crime Branch had taken a statement from him and prior to that, none had questioned him. During the cross examination, he would depose that while his wife abandoned him, she took Sheeba also with her. According to him, he was not aware whether the accused and deceased were living together at the time of the incident and also about the nature of their relationship. 8. The version of PW5 is to the effect that himself and the appellant were inmates in Sub Jail, Ernakulam during the same period and were then, in the same cell. He would depose that he is a granite worker and he studied up to 10[th] class. He had to discontinue his **Crl.A.298/2012** 8 studies owing to his involvement in a theft case. According to him, after discontinuing his studies, he had engaged in textile business and gambling and he got acquaintance with the appellant during such period. He would further depose that he got acquaintance with deceased Sheeba as she used to come to meet the appellant while they were in Sub Jail, Ernakulam. He deposed that though himself and the appellant were enlarged on bail, they were arrested later for jumping the jail. According to him, while they were in Sub Jail, Ernakulam they were attending kitchen works and during the period of incarceration the appellant told him that Sheeba had committed suicide. He would further depose that on being asked for its reason his doubt regarding the paternity of the second child was disclosed as the reason and had also disclosed that he used to pick up quarrels with Sheeba. According to PW5, the appellant had also revealed that on one day, he beat Sheeba and hit her head against the wall and upon finding that she was lying motionless he got afraid and then poured kerosene over her body and set her ablaze. PW5 further deposed thus:- **Crl.A.298/2012** 9 Sheeba ÎAç{ÏᢠçÏÏᢠæÉÞKáçÉÞæÜ çÈÞAÞ¢ ®Kí dÉÄß ÉùEí Sheebaå çÏÞ¿í ØbÏ¢ ¦vÙÄc æºÏñÄÞÃí ®Kí dÉÄßåpolice çÈÞ¿í ÉùÏߺîá ®KᢠdÉÄß policeååW ¥µæMGÞWå Sheeba çÏÏᢠµáGßµç{Ïᢠ¦øᢠçÈÞAÞX ©IÞµßÜï ®KᢠdÉÄßå Sheeba åçÏÞ¿í ÉùEÄÞÏß ®çKÞ¿í ÉùEá. He would also depose that in connection with death of Sheeba, he had given a statement before the Magistrate Court, Kalpetta. He stated that still he is owning the said statement. During cross examination, he would depose that he got acquaintance with the appellant during the period 1997-98 and they became closely associated to each other during the period 1999. He would depose that he had never shared a cell with the appellant in Viyyur Jail and that in the kitchen room, there were four persons including himself and the appellant. It is to be noted that the two other persons said to have shared the same room with them were not seen questioned. He would further depose:- ×àÌÏáæ¿ Îøâ Ø¢Ìtßºî µÞøcBZ ¾ÞÈᢠdÉÄßÏᢠ²øá roomW ¦Ï ÆßÕØ¢ ²øá ÆßÕØ¢ øÞdÄß ÎáÄW ¾BZ çÈø¢ æÕ{áAáKÕæø dÉÄß ®çKÞ¿í ÉùEÄÞÃí. **Crl.A.298/2012** 10 He also deposed that he was an accused in three cases and was convicted in one case. He claimed to have stated all matters within his knowledge regarding the death of Sheeba to the investigating officer and according to him, he received summons, on tapal, requiring to appear and give statement before the Magistrate. In fact, he would depose thus:- MagistrateÈí ÎáXÉÞæµ æÎÞÝß æµÞ¿áAâ ®Kí ÉùEáU summons ÕàGßçÜÏíAí . ÄÉÞÜßW ÕøáµÏÞÃí ©IÞÏÄí He would also depose that he had shared all the matters disclosed by the appellant with another prisoner. The appellant had disclosed that he had taken a can containing kerosene and then poured it over deceased Sheeba and this fact was stated to the Police, according to PW5. His further version is that this fact was stated before the Magistrate as well. 9.PW6 is the Tahsildar who conducted inquest on the body of Sheeba and prepared Ext.P2 inquest report. He deposed that at the time of conducting inquest, none had raised any suspicion on the **Crl.A.298/2012** 11 death of Sheeba. 10.PW7 is the nephew of PW4. His version is consistent with that of PW4. He would depose that he received information from the appellant regarding the death of Sheeba and thereupon, he along with his uncle (PW4) went to Kozhikode Medical College. He would also depose that the appellant was reluctant to speak to them and he did not participate in the funeral. He would also depose that though he got suspicion on the death of Sheeba, he did not divulge it to anyone. 11.PW8 is the warden of Sub Jail, Ernakulam. He was examined to prove that PW5 and the appellant were together in the Sub Jail, at the relevant point of time. PW9 was also examined to establish that both the accused and the appellant were inmates of the jail in terms of the entries in Ext.P15 series, during the same period. 12.PW10 is the attesting witness to Ext.P3 scene mahazar. A jerry can was also seized describing the same in the scene mahazar. 13.PW11 is the attesting witness to Ext.P4 seizure mahazar whereunder MO1 can was recovered. He would depose that when he put his signature in Ext.P4, MO1 was actually inside the police jeep. **Crl.A.298/2012** 12 PW12 is the attesting witness to Ext.P7 seizure mahazar regarding the recovery of case sheet from the Medical College. PW13 is the doctor then attached to Taluk Head Quarters Hospital, Sulthan Bathery who had examined deceased Sheeba when she was brought to the hospital. He issued Ext.P6 wound certificate. According to PW13, when Sheeba was brought to the hospital at 7.30 a.m, she was then in an unconscious stage and it was progressing. In what sense he had employed the term 'progressing' is not clear from his oral testimony. He would also depose that Sheeba was there in the said hospital for about three hours. PW14 is the attesting witness to Ext.P7 whereby Ext.P5 case sheet was recovered. PW15 was then the Village Assistant, Kidanganad who prepared Ext.P8 cite plan. PW16 is the doctor who conducted autopsy on the body of the deceased on 19.1.2003 and issued Ext.P9 postmortem report. The following antemortem injuries were noted on the body of Sheeba:- 1.Contusion of scalp 10x7x1.5 cms on the left side of head, just above the ear, Adherent and brownish in colour. Skull in tact. Sub dural blood clot- 1 cm thick, brownish red in colour, seen in the left middle cranial fossa adherent to the dura. Red blood **Crl.A.298/2012** 13 corpuscles found lysed with loss of contour, on micro scopic examination of blood clot. No neomembrane seen. Brain 1250 grams, congested and slightly oedematous. 2.Infected burns involving the whole body sparing: a) the scalp, b) over an area 13x7 cm on the back of trunk just above natal cleft, c) both gluteal folds, d) over an area 18x12 cm on the back of left thigh just below gluteal fold, e) a horizontal strip of skin, 3cm broad, on the abdomen 4cm above umbilicus, f) inner aspect of upper half of both thighs g) front of both thighs and groins h) soles of both feet i) inner aspect of left arm, j) over an area 4x3cm on the right side of chest and adjoining part of armpit. Burns were superficial to deep. Deep burns covered with the slough at multiple sites, having yellow, green and black colour. Superficial burns showed brownish black discolouration of overlying skin, with peeling of cuticle at places. Ointment seen smeared over the burnt areas. 3.Surgical venous cut down wound 5.5 cm long, horizontal, on the inner aspect of left leg, 5cm above ankle. Gloths oedematous. Other midline structures of neck in tact. Air passages contained mucoid fluid. Lungs right 200 gms, left 180 gms) congested and oedematous, with petechial haemorrhage on its surface. Pleural cavities contained 20 cc of straw coloured fluid in each. Heart 180 gms walls, valves ad chambers normal. Coronaries patent. Stomach 150 gms contained brownish viscid fluid having no unusual smell, mucosa normal. Spleen 120 gms, congested, soft and friable. Liver 1350 gms, congested. Kidneys 150 gms each, were pale, swollen and oedematous, soft and flabby with **Crl.A.298/2012** 14 petechial haemorrhages on the surfaces. Adrenal glands-congested with haemorrhage into their cortices on both sides. Retro peritoneal tissues oedematous. Peritoneal cavity contained 50 cc of straw coloured fluid. Uterus 100 gms, measured 7.5x5x2cm in size, cavity empty, endometrium haemorrhagic, ovaries normal, distal portions of tubes missing with scarring of edges. Urinary bladder empty. Other internal organs congested otherwise normal. Spinal column and cord -in tact. 14.PW18 is the Sub Inspector of Police attached to Sulthan Bathery during the relevant period. He recorded Ext.P1(a) based on Ext.P1 FIS. He sent a request for inquest to A.D.M, Mananthavady. According to him, during the entire investigation, he firmly believed that it is a case of unnatural death. PW19 was the then Deputy Superintendent of Police, Mananthavady. He conducted investigation at the initial stage and prepared Ext.P3 scene mahazar. Going by Ext.P3, he recovered a jerry can. However, it was not seen produced before the trial court. PW20 was the then Deputy Superintendent of Police attached to Ernakulam Crime Branch Special Investigation Group-II. According to PW20, while conducting investigation in certain robbery cases and verifying the complicity of certain accused **Crl.A.298/2012** 15 persons, he made an enquiry about the appellant who was also an accused in a robbery case. During such enquiry, he realised that the appellant herein was an accused in a long pending case before the Court of Additional Sessions Judge-II, Ernakulam. On such probe, he came to know that he jumped the jail and consequently, arrested him on 20.2.2008, in connection with the said long pending case. According to him, during the interrogation, he got some suspicion regarding the involvement of the appellant in Sheeba's death. Later, he questioned PW4 and he too raised suspicion in the matter. Subsequently, PW20 requested permission from the Director General of Police to conduct further investigation, in the matter. PW20 filed the report incorporating section 302 and thereafter PW21 continued further investigation. According to him, he obtained a piece of information that the appellant/accused had made an extra judicial confession to PW5 while they were remaining as under trial prisoners in connection with another case, in Sub Jail, Ernakulam. Pursuant to the receipt of the said information, he questioned PW5 for getting further information and recovered the under trial prisoners register **Crl.A.298/2012** 16 viz., Ext.P15 under Ext.P11 mahazar. The statement of PW5 was got recorded under section 164 of the Cr.P.C. He had also questioned PW2 and effected recovery of MO1 stove. PW21 then, arrested the appellant in connection with this case. PW22 recorded the statement of PW5 under section 164, Cr.P.C. PW23 is the village officer of Kidanganad village who prepared Ext.P8 location sketch. 15.As noticed hereinbefore, the trial court considered the oral evidence consisting of PWs 1 to 23 and documentary evidence consisting of Exts.P1 to P15(d) and also the evidence of the defence viz., Exts.D1 to D7 and ultimately entered conviction against the appellant and then sentenced him, as mentioned hereinbefore. A close scrutiny of the impugned judgment would reveal that the prosecution depended on the circumstantial evidence, extra judicial confession and dying declaration to bring home the culpability of the appellant. Evidently, the trial court acted upon such pieces of evidence to enter conviction against the appellant. 16.As regards the circumstantial evidence, it is the settled position of law that the chain of circumstances should be complete to **Crl.A.298/2012** 17 fasten guilt on the accused. As regards extra judicial confession, normally, it is a weak piece of evidence. But, certainly, a conviction can be passed provided it inspires confidence. As a rule of prudence, the court will seek for corroboration before acting on extra judicial confession. The principle on which dying declaration is admitted in evidence is based on the legal maxim _nemo moriturus proesumitur mentiri_ ' means a man will not meet his Maker with a lie in his mouth. In such circumstances, when once the court is satisfied that the dying declaration was true, undoubtedly, it can be taken as the basis for conviction without any further corroboration. Bearing in mind the aforesaid position of law, we will scan the evidence to find out whether the conviction entered against the appellant could be sustained. 17.Evidently, one of the circumstances relied on by the prosecution against the appellant is that he was seen in company with the deceased and the child when PW3 reached the house where they resided firstly, on hearing a hue and cry from the house. True that PW3 is an octogenarian and she is the mother of PW2. She deposed **Crl.A.298/2012** 18 that she reached there immediately on hearing the hue and cry from the house. PW1, the first informant who reached there subsequently has also deposed regarding the presence of PW3. The prosecution mainly relied on the deposition of PW3 to the effect that while she reached there, she heard the accused beseeching repeatedly to the deceased:- ¾ÞX æºÏñÄÞÃí ®Kí ÉùÏøáÄí. 18.According to the prosecution, both PW3 and PW1 reached the house where the deceased and the appellant were residing and when they reached there, they saw the deceased, the appellant and also their child in the early hours of the day. It is pertinent to note that though PW3 had deposed that she overheard the appellant repeatedly beseeching as aforesaid, it was not brought out by the prosecution as to what exactly was the matter required not to be divulged by the deceased. The dying declaration relied on by the prosecution is the one made to PW2. PW2 is a pastor and in fact, he was the landlord of the appellant and the deceased. According to him, he had been to Ernakulam on 10.1.2003 for some theological meetings and alighted **Crl.A.298/2012** 19 at Meenangadi on receiving the information that sheeba was hospitalised due to burn injuries. The version of PW2 would reveal that on reaching the hospital, he repeatedly enquired Sheeba as to how she sustained the injuries. According to PW2, she was not willing to respond and all along, she was keeping silence. He went on to depose that after some time when the appellant went for arranging ambulance and he asked the question again and then Sheeba told him that the appellant struck down and poured kerosene over her body and set fire. Thus, it is obvious that the dying declaration made to PW2 is an oral dying declaration. In the contextual situation, to consider whether the said dying declaration could be acted safely we have to consider the oral evidence of PW13, the doctor who initially attended the deceased from Taluk Headquarters Hospital, Sulhanbathery. According to him, she was brought to the hospital at about 7.30 hours on 11.1.2003 and she remained in the hospital for about three hours. His version is that the cause of the injury was not revealed to him as the patient was then in a semi conscious stage and therefore, he could not ask her about the cause of the injury. In the light of evidence of PW13, it can only be **Crl.A.298/2012** 20 taken that PW2 must have reached there after he attended Sheeba immediately when she was brought to hospital and in such circumstances, the evidence of PW13 to the effect that she was brought to the hospital in a semi conscious stage has to be borne in mind while considering the verity of the version of PW2 and also the question whether the dying declaration could be safely acted upon. When the doctor himself revealed that when she was brought to the hospital, she was in a semi conscious stage and when there is nothing on record which would reveal that she had regained her consciousness while she remained there in the hospital, the case of the prosecution regarding the dying declaration to PW2 cannot be take as the basis for conviction. It is also relevant to note that PW2 deposed that after about three hours since her hospitalisation, sheeba was removed to Medical College Hospital, Kozhikode and it was categorically stated by him that her semi conscious stage was progressing at the time of such removal. In what sense he used the said word 'progressing' was not got clarified by the prosecution. Though in the normal case one could only think that the case of the prosecution is that Sheeba was **Crl.A.298/2012** 21 slowly regaining consciousness, the learned Public Prosecutor would contend otherwise. According to him, what was progressing was only the semi consciousness. According to the learned Public Prosecutor, while Sheeba was removed to Medical College Hospital, her consciousness was deteriorating. In this context, the evidence of PW17 would assume much relevance. PW17, Dr.Arun, who had examined Sheeba when she was brought to Medical College Hospital, Kozhikode categorically deposed that the deceased had divulged that she herself set fire on her. Therefore, the contention of the learned Public Prosecutor that she was falling unconscious cannot be accepted. Going by evidence of PW17, the semi consciousness of the deceased Sheeba had improved and she was able to reveal the cause of the injury to him. If the contention raised by the learned Public Prosecutor is accepted, the evidence of PW17 would become worthless. But is to be noted that the evidence of PW17 is to the effect that the deceased herself revealed the cause of injury to him and he had specifically recorded the same in Ext.P5 case sheet. Thus, it is obvious that the reason for her injury divulged by deceased Sheeba **Crl.A.298/2012** 22 was recorded by PW17 and he had recorded the same in Ext.P5. Evidently, the cause of the injury was recorded in Ext.P5 and going by the same, it was stated by the deceased herself. Taking into account the said circumstances, we will have to consider the question whether the dying declaration allegedly made to PW2 could be safely acted upon. Thus, it is evident from the case of the prosecution that virtually there are two dying declarations; one made to PW2 and the other made to PW17. As noticed hereinbefore, dying declaration made to PW2 is an oral dying declaration and one made to PW17 was recorded by him in Ext.P5. That apart, even going by the case of the prosecution, deceased Sheeba was brought to Taluk Headquarters Hospital, Sulthan Bathery in semi conscious stage and even as per PW13, he could not get the cause of injury from her. If it is taken that the word 'progressing' was employed by PW13 in its normal sense, it can only be taken that the deceased was slowly becoming conscious. The evidence of PW13 would strengthen the view that the deceased was slowly regaining her consciousness. We are of the considered view that the evidence of PW2 regarding the dying declaration cannot **Crl.A.298/2012** 23 be therefore, the sole basis for a conviction especially the cause injury allegedly made by the deceased to PW2 would go in conflict with the cause of injury revealed to PW17 and recorded in Ext.P5. If the contention of the learned Public Prosecutor is accepted, it is to be taken that, after Sheeba was taken to hospital in semi conscious stage and her condition was never improved. If that be so, the evidence of PW2 regarding dying declaration cannot be acted upon. Thus, on considering the question of reliability of the dying declaration made to PW2 at any angle, in view of the circumstances expatiated above, it would only reveal that the dying declaration allegedly made to PW2 cannot be safely acted upon. 19.We will now consider the reliability of the extra judicial confession which was relied on by the prosecution as a piece of evidence against the appellant. The evidence of PWs 20 and 21 would reveal that they got some information regarding the extra judicial confession made to PW5 and thereupon PW21 further questioned PW5. It is to be noted that PW5 was an accused in another case, absolutely unconnected with the case on hand. The prosecution **Crl.A.298/2012** 24 has relied on Exts.P14 and P15 to show that both the appellant and PW5 remained as under trial prisoners around the same period in Sub Jail, Ernakulam. Though it is the case of the prosecution that at that point of time they were in the same room, the prosecution could not establish the same. According to PW5 himself, the appellant and two others were kept in the kitchen room. It is not brought out in evidence as to whether they were there solely for the purpose of cooking. There can be no doubt with respect to the position that the kitchen room of a sub jail would not and could not be used as a cell to lock the prisoners or under trial prisoners. Be that as it may, the question is regarding the reliability of the alleged extra judicial confession made by the appellant-accused to PW5 from the jail. While being examined under section 313 Cr.P.C., the definite case of the appellant was that he had never been with PW5 in the same cell in Sub Jail, Ernakulam. That apart, there cannot be any doubt with respect to the position that extra judicial confession by itself is a weak piece of evidence and therefore, it cannot be the sole basis for conviction and even for acting upon the same, it requires corroboration. Therefore, the question is **Crl.A.298/2012** 25 what is the corroborating piece of evidence available to make the extra judicial confession made to PW5 reliable. The case of the prosecution is that on being questioned, PW5 informed PWs 20 and 21 that the appellant made extra judicial confession to him. Despite our earnest efforts, we could not find any reliable piece of evidence which throw light on the aspect as to when the appellant had made such an extra judicial confession to PW5 and moreover, no such evidence is forthcoming as to when that fact was divulged by PW5 either to PW20 or 21. Thus, obviously, the case of the prosecution is that PW5 and the appellant were under trial prisoners at the same point of time in Sub Jail, Ernakulam. It is the case of the prosecution that during such time (when?) appellant made an extra judicial confession, as noticed hereinbefore, to PW5. Thus, it is evident that what is sought to be used as a corroborating piece of evidence to probabilise the said case of the prosecution regarding extra judicial confession made by the appellant to PW5 is the fact that at the same point of time, PW5 and the appellant were there in Sub Jail, Ernakulam as under trial prisoners. It is for that purpose that Exts.P14 **Crl.A.298/2012** 26 and P15 were brought in as evidence. As noticed hereinbefore, at that point of time, even going by the case of the prosecution, both the appellant and PW5 were in _pari delicto_ with one another inasmuch as both of them were facing trial as co-accused. Going by the evidence of PWs 20 and 21 and PW5 and Exts.P14 and P15, it is evident that they remained as under trial prisoners in Sub Jail, Ernakulam during the year 2008, i.e., about five years since the incident in question. Under what circumstances and for what purpose the appellant-accused made such confession to PW5 is not at all discernible even from the evidence of PW5. In other words, the evidence would reveal that there is absolutely no proximity of time between the occurrence of the incident and the confession. There cannot be any doubt with respect to the fact that the admissibility of extra judicial confession to a person is believable or not, would also depend upon the person to whom it was made. In the decision in **Balwinder Singh v. State of Panjab [1996 SCC Crl.59],** the Hon'ble Apex Court observed that extra judicial confession requires a great deal of care and caution before acceptance. In the decision in **Pakkirisamy v. State of Tamil** **Crl.A.298/2012** 27 **Nadu [1997 (8) SCC 158],** the Hon'ble Apex Court observed that reliability of extra judicial confession depends upon veracity of the evidence to whom it was made. As noticed hereinbefore, the appellant and PW5 were in _pari delicto_ inasmuch as they were coaccused and was kept in Sub Jail, Ernakulam as under trial prisoners. Despite examination of PW5, nothing was brought out from him by the prosecution as to under circumstances whereunder the appellant made a confession, if at all it was made to him. It is in this context that the evidence of PW5 as discussed above would assume relevance. According to PW5, during the period they were kept in Sub Jail, Ernakulam as under trial prisoners, they were in the kitchen room and besides PW5 and the appellant, two others were also there in the said room. We have already concluded that it is unbelievable that the kitchen room of a Sub Jail would be used as a cell, that too, to keep four prisoners. In any prison, the prisoners or an under trial prisoner cannot be put in the kitchen room. No provision was brought to our notice rather, available in the evidence on record, to establish it otherwise. The prosecution has not made even an attempt to reveal the **Crl.A.298/2012** 28 identity of the persons who were there along with the appellant and PW5. At any rate, they were not cited as charge witnesses and needless to say that none of them were examined. Absence of evidence regarding at least the date on which PW5 had disclosed the factum of extra judicial confession of the appellant to PW20 and 21 also assume relevance in this context. The evidence of PW5 himself would reveal that under what circumstances they remained together in Sub Jail, Ernakulam. In this context, the decision of the Hon'ble Apex Court in **Pakkirisamy'** s assumes relevance. The Hon'ble Apex Court held that there should be no suspicious circumstances surrounding the extra judicial confession. Going by the evidence of PW5 with Ext.P15, himself and the appellant and PW5 remained as under trial prisoners in S.C.No.464/2002 in Sub Jail, Ernakulam during the year 2003. Thus, if the evidence of PW8 is believed, it has to be taken that the appellant had made a confession to PW5 in the year 2003. But, there is nothing on record, in fact, there is no case for the prosecution that the factum of making of such a confession by the appellant was divulged by PW5 to anyone either immediately thereafter or within a **Crl.A.298/2012** 29 reasonable time thereafter. In fact, no evidence to make out such a case was advanced by the prosecution. In this context, it is also to be noted that the prosecution had not cared to bring on record the time or year on which PW5 disclosed the said fact either to PW20 or PW21. The evidence of PWs 20 and 21 would reveal that in S.C.No.324/2002, that too, on the question of jumping jail, he was arrested subsequently and owing to his abscondence, the said case was split up and later on his arrest and production, it was re-numbered as S.C.No. 119 of 2008. In such circumstances and in view of the nature of the evidence, as discussed above, we have no hesitation to hold that the evidence of PW5 regarding the confession made to him, cannot be taken as a piece of evidence capable of placing reliance to find the guilt in the appellant. 20. While considering the reliability of dying declaration, it is only apposite to refer to the decision of the Apex Court in **State of Punjab v. Raj Kumar & Ors. [AIR 2008 SCW 5698]** , particularly paragraph 5 thereunder. It reads thus:- Though a dying declaration is entitled to great **Crl.A.298/2012** 30 weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. 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. It is also appropriate to refer to the decision of the Apex Court in **Sarnadhan Dhudaka Koli v. State of Maharashtra [AIR 2009 SC** **1059]** . The Apex Court held therein that consistency is a relevant factor as regards the admissibility of dying declaration. If contradictory and inconsistent stand is taken by the deceased, it is unsafe to rely on such dying declaration in the absence of **Crl.A.298/2012** 31 corroboration from other evidence, going by the decision. We have already found that the dying declaration allegedly made to PW5 is an oral dying declaration which is inculpatory as regards the appellant as according to Sheeba, it was the appellant who poured kerosene and set fire on her whereas the dying declaration made to PW17, the doctor who examined her from Medical College, which was noted in Ext.P5 is exculpatory one inasmuch as she disclosed to PW17 that she herself had poured kerosene and set fire. 21.We have already found that going by the case of the prosecution, when PW3 and PW1 reached the house where the appellant and the deceased resided together, they found there the appellant, deceased and their children. In other words, the case of the prosecution would suggest that at the time of occurrence, besides the appellant and the deceased, their children were also there. At the same time, the prosecution has not brought out anything regarding the age of the children. The age of the children at the relevant point of time assumes relevance to find out whether they could have thrown light regarding the cause of the injury and also the circumstances that **Crl.A.298/2012** 32 led to the incident in question. In other words, in such circumstances, it can only be said that though such a situation to collect evidence was available, no endeavour was seen made to find out the real genesis from the children. In the absence of any evidence relating their age, we are not in a position to say whether the non-questioning of the children was fatal or not. At any rate, the fact is that even after adducing evidence regarding the presence of children, no explanation whatsoever was offered by the prosecution as to why no steps were taken to examine them. True that the case of the prosecution is to the effect that when PW3 reached there, she overheard the appellant beseeching repeatedly to the deceased not to divulge and at the same time, no evidence is forthcoming as to what exactly was the matter which the appellant had asked the deceased not to divulge. In this context, another aspect revealed from the evidence of PW13 with Ext.P6 and PW16 with Ext.P9 also would assume relevance. PW13 noted in Ext.P6 that besides the burn injuries, he had noted a contusion of scalp 10x7x1.5 cms on the left side of head, just above the ear. The said injury was in fact noted by PW13 in Ext.P6 as well. **Crl.A.298/2012** 33 It is also relevant to note that PW4, the father of the deceased also deposed to the effect that he had noticed the said injury when he parted the last kiss on the body of her daughter. Therefore, it is evident that besides the burn injuries, the evidence of the prosecution through PW13, PW16 and PW4 would indicate that the deceased had sustained head injury as mentioned hereinbefore. There is no cogent evidence to show that it was caused on the body of the deceased before she sustained burn injuries. If it is taken that it is one which is inflicted by the appellant, the question is whether it was with reference to that act that he beseeched the deceased not to divulge. There is substance in thinking in that line as going by the declaration made by the deceased to PW17, she herself admitted the fact that it was she who poured kerosene over her body and set fire on her. Going by the evidence of PW17, the declaration was made to him by the deceased when she regained consciousness after being brought from Taluk Headquarters Hospital, Sulthan Bathery. If the version of PW17 is believed and if it is taken that the deceased herself poured kerosene over her body and set fire on her, then the matter which was **Crl.A.298/2012** 34 overheard by PW3 beseeching to the deceased can only be with reference to the infliction of the head injury. We are on the point that in the circumstances obtained in this case, the evidence of PW3 that she overheard the appellant beseeching to the deceased cannot be taken as a piece of evidence against the appellant to convict him for the offence under section 300, IPC. 22.As noticed hereinbefore, PW16 conducted autopsy on the body of deceased Sheeba and issued Ext.P9 post mortem report. In Ext.P9, he had noted the aforementioned injuries as ante mortem injuries. In Ext.P9, he opined that it is the combined impact of the said injury and the burn injuries that resulted in the death of Sheeba. Evidently, the prosecution has not brought on record anything from PW16 as to whether each of the said injuries independently is sufficient to cause death of Sheeba. True that merely because an expert had failed to give an opinion regarding the sufficiency of injury to cause death, that by itself is no reason for the court to discard the head injuries and to form an opinion as to whether it was sufficient to cause death. The injury sustained to the deceased was not a simple **Crl.A.298/2012** 35 injury. Ext.P6 would reveal that it is a contusion of scalp having a size of 10x7x1.5 cms. It is also relevant to note that the said injury is on the left side of the head, just above the ear. PW16 as per Ext.P9 opined that it is the combined impact of the said injury and the burn injuries that caused the death of Sheeba. In the light of the nature of the injuries which was recorded in Ext.P9 by PW16 and in Ext.P6 by PW13, we are also not in a position to say with certainty as to whether injury was independently sufficient or not to cause death of Sheeba. At the same time, another aspect which is evident from the oral testimony of PW16 assumes relevance. While being cross examined, he was asked whether the head injury noted as above could be caused by a fall on the floor or hit against a board due to the panic and pain when the fire got ablazed. Evidently, PW16 repudiated said suggestion and deposed to the effect that the said injury would not be caused either by fall of the person on fire or by hit on the wall during the struggle when fire got ablazed. True that while being cross examined, a suggestion was put to PW13 as to whether haematoma and head injury could be caused while escaping from fire if the person **Crl.A.298/2012** 36 hits against wall. Certainly, PW13 deposed to the effect that haematoma and head injuries could be possible during struggle to escape from fire or hit against wall. Thus, it is evident that the said suggestion was put to PW13 not exactly with reference to the aforesaid head injury which was noted in Ext.P9 post mortem certificate. It is also to be noted that there is nothing on record which would reveal as to whether the attention of PW13 was drawn to Ext.P9 post mortem report with reference to that particular injury or injuries. But at the same time, it is evident that the defence put such a question as a suggestion to PW16 specifically with reference to the said injury. 23. PW13 is a doctor attached to Taluk Head Quarters Hospital, Sulthan Bathery and PW16 is an Assistant Professor attached to the Forensic Department of the Medical College Hospital, Kozhikode. The prosecution evidence would thus go to show that the deceased Sheeba sustained such a head injury as noted in Ext.P9 and that is an antemortem injury. The learned Public Prosecutor relied on a decision of the Hon'ble Apex Court in **Trimukh Maroti Kirkan** **Crl.A.298/2012** 37 ## v. **State of Maharashtra** ( **(2006) 10 SCC 681** ) to canvass the position that when an offence being committed behind the closed doors of a dwelling house the inmate of that house facing the accusation of having committed the said offence is bound to offer an explanation as to how such an injury was caused. In that case, the appellant-convict was held allegedly committed the murder of his wife. In paragraph 17 of the said decision the Hon'ble Apex Court held that when an accused is alleged to have committed murder of his wife and the prosecution succeeds in giving evidence to show that they were seen together or the evidence to place in the dwelling house where the husband also normally resided if the accused failed to offer an explanation how his wife received injuries or offer an explanation which is found to be false it is a strong circumstance which would indicate culpability in the crime. The said decision has been relied on by the learned Public Prosecutor to contend that in this case, the incident occurred in the dwelling house where the deceased and the accused who are man and wife resided along with their children. The learned Public Prosecutor further contends that the evidence of PW1 **Crl.A.298/2012** 38 and PW3 would reveal that immediately after hearing the hue and cry from the said house at about 4.30 hours in the morning they rushed to the house and at that time the accused was seen there standing holding the younger child on his lap and the deceased was seen lying on the floor and the elder son was also seen. Thus, it is evident that the incident in question happened in a house where the appellant is normally resided along with his family consisting of the deceased and the children. A perusal of the statement under Section 313, Cr.P.C. of the appellant would reveal that he had not offered any explanation as to how the deceased wife sustained the said head injury. In such circumstances, we are of the view that the contention of the learned Public Prosecutor is having considerable force as regards the injury found on the head. We have already found that the evidence of PW2 regarding the dying declaration made to him by the deceased cannot be safely acted upon. We have already considered in detail the evidence of PW13 and PW17 and also the contentions raised by the learned Public Prosecutor in that regard. Though the learned Public Prosecutor contended that what was progressing while she was being **Crl.A.298/2012** 39 shifted to Medical College was the semi-consciousness the evidence on record would show that the case of the prosecution and the nature of the evidence adduced is to the effect that there occurred improvement and the deceased was slowly regaining consciousness. The evidence of PW17 would certainly lend support to that contention as going by his evidence, when the deceased Sheeba was brought to Medical College she was found in her senses. PW17 deposed to the effect that she herself divulged to him on the cause of injury and the deceased revealed to him that she herself poured kerosene over body and set herself on fire. It is to be noted that the only evidence regarding the mental stage of the deceased at the time when she was brought to THC from where PW2 had seen her, is the evidence of PW13, the doctor who examined her from there and it is the effect that she was then in a semiconscious stage and that stage continued even while she was being shifted to Medical College. Further, the evidence of the prosecution let in through PW17, the doctor who examined him from the Medical College is to the effect that the deceased herself made a declaration to PW17 as to how she **Crl.A.298/2012** 40 sustained the burn injuries. It is also a fact that the prosecution had not got declared PW17 as a hostile witness and it is also pertinent to note that at no point of time a leading question was put to him with permission in terms of the provisions under Section 154 of the Evidence Act. The further evidence of the prosecution is that PW17 had recorded what the deceased had revealed to him regarding the cause of injury in Ext.P5. In such circumstances, the evidence of PW17 cannot be doubted. We have already found that the evidence of PW16 the doctor who conducted the postmortem is to the effect that it is the combined effect of the head injury and the burn injury that caused her death. In view of the evidence thus obtained from the evidence on record it can certainly be held that culpability can be attributed on the appellant only with respect to the injury found on the head of the deceased especially, in view of the fact that the incident in question had occurred in the dwelling house where he was residing with the wife and children and that he had failed to give an explanation as to how she sustained the said head injury. When once it is found that the dying declaration made to PW2 cannot be safely **Crl.A.298/2012** 41 acted upon and that the extra judicial confession made to PW5 is not one which is sufficient to inspire confidence coupled with the fact that there is nothing on record which would reveal that the aforesaid two injuries are independently sufficient to cause death and in the absence of any other piece of independent evidence to point to the guilt of the accused for the offence under Section 300, IPC we have no hesitation to hold that the finding of guilt on the appellant under Section 302 IPC cannot be sustained. For the foregoing reasons the finding of the learned Sessions Judge to the effect that the prosecution has succeeded in establishing the commission of murder against the appellant herein is set aside. 24. Now, the question remaining to be considered is what is the offence committed by the appellant as he is to be held responsible for the head injury sustained by the deceased. In that context, it is also relevant to note that we have already referred to the evidence of PW3 the lady who was aged 80 years. She deposed to the effect that when she rushed to the place of occurrence on hearing the human cry she overheard the beseechment of the appellant. According to her, the **Crl.A.298/2012** 42 appellant repeatedly asked the deceased not to divulge something. We have already found that despite her examination as PW3 the prosecution had not succeeded in establishing what exactly was the matter required not to be divulged. In such circumstances, based on our finding that the appellant is made responsible for the head injury sustained to the deceased it can only be taken that he was beseeching to the deceased not to divulge the infliction of that injury. At any rate, in the light of the decision in **Trimukh's** case (supra) and in view of the absence of any explanation from the part of the appellant regarding the injury found on the head of the deceased it is to be held that he is guilty of inflicting the said injury. We have already found that PW16 would not depose that the said injury is independently sufficient to cause death. The injury which was found on the head of the deceased to be precised, on the scalp, just above the ear is a serious injury. 25. The evidence on record would thus reveal that death is caused by the act of the appellant. In view of the nature of the injury it cannot be said that death is the most probable result of the injury. **Crl.A.298/2012** 43 Considering the nature of the injury, size of the injury and the particular part on which it was inflicted we are of the view that it can be safely held that the death is a likely result of infliction of such an injury. It is also a fact that in this case Sheeba died after the said incident on the 7[th] day. In the light of Ext.P9 postmortem it is evident that it is the combined effect of both the injuries that resulted in her death. When once it is found that the injury having the size described in Ext.P9 found on the head of the deceased is one which is likely to cause death and when death indeed had occurred we are of the view that the irresistible conclusion that one can arrive at is that the prosecution had succeeded in establishing that it is a case of culpable homicide. Taking into consideration of the evidence on record and the nature of the injuries we have no hesitation to hold that the evidence would not attract any of the four limbs under Section 300, IPC to make it an offence of murder. In such circumstances, we vacate the conviction of the appellant under Section 302, IPC. 26. Now, the question is what is the offence committed by the appellant. Section 304 IPC prescribes the punishment for culpable **Crl.A.298/2012** 44 homicide not amounting to murder. According to the intensity and gravity of the crime virtually, it was divided into two categories for the purpose of awarding sentence. Intention is the basis of liability necessary to attract Part I of Section 304, IPC. Intention is a mental element and it may not be possible in all cases to prove what exactly is the intention for committing a particular offence. In this case, we found that the appellant is responsible for the injury found on the head of the deceased and going by the nature of the injury and part on which it was inflicted it cannot be said that he was lacking the knowledge that the said act is likely to cause death. At the same time, it is also to be noted that the prosecution had not actually brought anything on record to establish the existence of an intention or motive to commit murder. When once it is found so and further that the appellant cannot be said to have lacking knowledge that inflicting such an injury on that particular part of the body is not likely to cause death, it can only be held that he is having the knowledge that such act is likely to cause her death. In such event, it would attract the offence punishable under Part II of Section 304, IPC. In such circumstances, **Crl.A.298/2012** 45 the appellant is found guilty of the offence of culpable homicide not amounting to murder and accordingly, he is convicted under Part II of Section 304 IPC. 27. Though the appellant was convicted for the offence under Section 201 IPC a scanning of the evidence on record would reveal that no evidence was actually let in to establish the said offence. On a careful scanning of the evidence we do not find any evidence to hold that he has committed the offence under Section 201 IPC and in fact, a perusal of the impugned judgment itself would reveal that there is absolute absence of any discussion on that question with reference to the evidence adduced though it was held that the prosecution has succeeded in establishing that he had committed the offence under Section 201 IPC also. We find no reason to sustain the conviction of the appellant for the offence under Section 201 IPC. Hence, conviction of the appellant for the offence under Section 201 IPC and the consequential sentence imposed on him for the said offence are set aside. 28. In view of our finding that the appellant had committed the **Crl.A.298/2012** 46 offence of culpable homicide not amounting to murder and entering conviction on him under Part II of Section 304 IPC the question is what should be the sentence to be imposed. The appellant was arrested on 30.5.2008. He faced trial as an under trial prisoner and the impugned judgment was passed on 4.7.2011. He is serving the sentence imposed by the Trial Court. Thus, all along the appellant has been in jail. In such circumstances, we are inclined to hold that the sentence of imprisonment for the conviction under Part II of Section 304 IPC to the appellant is restricted to the period of imprisonment already undergone by him. 29. In the result, the appeal is allowed in part. The conviction of the appellant under Sections 201 and 302 of the Indian Penal Code is set aside. The appellant is found guilty of the offence of culpable homicide not amounting to murder and convicted under Part II of Section 304, IPC. The appellant was arrested on 30.5.2008. He faced trial as an under trial prisoner and the impugned judgment was passed by the Court of Additional Sessions Judge (Adhoc-I), Kalpetta in S.C.No.324 of 2009 on 4.7.2011. Thus, all along the appellant had **Crl.A.298/2012** 47 been in jail. In such circumstances, the sentence of imprisonment for the conviction under Section 304 Part II, IPC is limited to the period of imprisonment already undergone by the appellant and he is convicted accordingly. If the detention of the appellant is not required in connection with any other case, he shall be released forthwith. Registry is directed to send a copy of this order to the Central Prison, Viyyur, forthwith. **Sd/C.T. RAVIKUMAR (JUDGE)** **Sd/-** **K.P.JYOTHINDRANATH (JUDGE)** **spc/tks** **Crl.A.298/2012** 48