Biju v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **TUESDAY, THE 13TH DAY OF MARCH 2018 / 22ND PHALGUNA, 1939** **CRL.A.No. 1964 of 2010** **AGAINST THE ORDER/JUDGMENT IN SC 466/2008 of ADDL.SESSIONS COURT (ADHOC)-II, ERNAKULAM DATED 31-08-2010 CP 52/2008 of J.F.C.M.,PERUMBAVOOR** ## **APPELLANT(S)/ACCUSED** **BIJU, S/O BHASKARAN, KAALAKKATTUPARAMBILVEEDU, NEAR BHADHANICRUZ, VENGOLA KARA,, VENGOLA VILLAGE.** **BY ADVS.SRI.B.RAMAN PILLAI SRI.R.ANIL SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.MANU TOM SRI.THOMAS ABRAHAM (NILACKAPPILLIL)** ## **RESPONDENT(S)/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY SMT.AMBIKA DEVI, SPL.PUBLIC PROSECUTOR FOR ATTROCITIES AGAINST WOMEN AND CHILDREN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-01-2018,THE COURT ON 13/3/2018 DELIVERED THE FOLLOWING:** ## **A.M. SHAFFIQUE & K.P.JYOTHINDRANATH, JJ.** ============================== Crl.Appeal No. 1964 of 2010 ==================== Dated this, the 13[th] day of March, 2018 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal arises from the judgment dated 31/8/2010 in SC No.466/2008. The accused in the said case was found guilty u/s 447 and 302 of I.P.C. He is sentenced to undergo simple imprisonment for three months for the offence u/s 447 I.P.C. and to undergo imprisonment for life and to pay a fine of `5,000/- for the offence u/s 302 I.P.C. In default of payment of fine, he is to undergo simple imprisonment for three months. 2. The accused has preferred this appeal _inter alia_ contending that the Court below had not properly appreciated the evidence in the case and the entire allegation against the accused could not be proved beyond reasonable doubt. It is argued that a correct reading of the evidence would show that the accused had not committed the crime as alleged. The Court below had erroneously found him guilty and therefore a re-appreciation of the evidence is required in the Crl.Appeal No.1964/2010 -:2:- matter. 3. On the other hand, learned Public Prosecutor submitted that appellant is involved in a heinous crime as he had committed murder of a lady by trespassing into the compound of their house. It is submitted that he had poured acid on the face of the said lady when she was in her compound by about 8 p.m on 15/1/2002. She sustained serious burn injuries and succumbed to death on 19/4/2002 at 8.45 a.m. When the Court below had, based on evidence arrived at a conclusion that the accused had committed the crime, there is no material whatsoever to arrive at a different finding. Learned Public Prosecutor therefore sought for confirming the conviction and sentence. 4. In view of the contentions urged by either side, it is appropriate to consider the entire evidence in order to find out whether the Court below was justified in convicting the accused. In order to prove the case, prosecution examined 23 witnesses and produced Exts.P1 to P25 documents. The material objects produced and proved were MO1 to MO5. 5. Learned counsel for the appellant argued that there was no evidence to prosecute the accused. The evidence produced by Crl.Appeal No.1964/2010 -:3:- the prosecution have all been cooked up. But the Court below had placed reliance upon such planted evidence and had convicted him. 6. Apparently this was a case where prosecution alleged that acid was poured on a lady and though she was taken to the hospital, she died on account of the injuries due to the acid burns. 7. On the basis of the arguments raised by learned counsel for appellant, first we shall consider whether the death of the lady was caused on account of the injuries sustained by her on account of pouring of acid. 8. PW1 is the husband of deceased. He along with his wife and two children were living in a house at Vengola. On 15/1/2002 when the incident happened, by about 8 p.m, she went to close the hen coop which was on the northern courtyard of the house. Later, he heard the cry of his wife. When he went out, he saw his wife rushing to the veranda and she fell down. He could smell a pungent odour of acid. She told him that the accused had poured acid on her and ran away. She was immediately taken to a hospital at Kolencherry and from there to Little Flower Hospital, Angamaly and later to Medical Trust Hospital, Ernakulam. She lost Crl.Appeal No.1964/2010 -:4:- her eye sight. PW1 has given the FI statement to the police which is marked as Ext.P2. 9. PW2, the son of the couple was in the saw mill at the time of incident. Saw mill was on the south-eastern side of the house. He rushed to the house when he heard a hue and cry. Immediately she was taken to the hospital. PW3 is a neighbour. She also heard a hue and cry from the house of the victim at about 8 p.m. When she went to that house, she saw the victim. She turned hostile. PW4, 5 and 6 had turned hostile. PW7 is the sister of the victim. She deposed that while she was a by stander in the hospital as well as in the house while treatment was given to the victim, she had disclosed to her that acid was poured on her by the accused. 10. PW12 was the Chief Medical Officer of hospital at Kolencherry who had examined the victim and issued Ext.P8 certificate. PW13 was the Chief Medical Officer of Little Flower Hospital, Angamaly who had issued Ext.P9 certificate after examining the victim. The victim was later taken to Medical Trust Hospital. She was examined by PW14 who has issued Ext.P10 certificate. As per his evidence, victim sustained 40% of corrosive Crl.Appeal No.1964/2010 -:5:- burns. PW15 is the Doctor who had treated the victim. He is a Plastic Surgeon. He deposed that she sustained 30% deep burns. Ext.P11 is the certificate issued by him. PW18 has conducted investigation into the case. At his instance, the scene mahazar was prepared and he had seized leaves and barks of anjili tree from the place of occurrence which were marked as MO4 and MO5. The material objects were sent to the chemical analyst. He had also taken steps to record the dying declaration of the victim. PW19 conducted further investigation. The accused could not be arrested initially as he was absconding. PW21 had conducted post mortem of the victim. According to him, she died due to infection following the burns. Ext.P23 is the certificate issued by the Doctor. PW23 was the Judicial First Class Magistrate of Perumbavoor at the time when he recorded the dying declaration Ext.P25 of the victim. 11. Apparently, all the Doctors who had been examined in the case had stated that the victim had suffered burn injuries. Ext.P23 read along with the deposition of PW21 the Doctor who conducted postmortem proves the fact that she died due to infection following burns. Crl.Appeal No.1964/2010 -:6:- 12. The learned counsel for the appellant argued that there is no evidence to prove that the accused had committed the crime. The argument is that PW1, husband of the deceased was not in good terms with his wife. After the police have prepared the scene mahazar, PW1 had produced a bottle and a towel stating that he found the same from the compound. Therefore, according to the learned counsel for the appellant, PW1 might be instrumental in committing the act of pouring acid on her and merely for the reason that there was some dispute between the accused and the victim, a charge of murder had been mulcted on the accused. It is further argued that there is no circumstance to doubt the accused except for the fact that his whereabouts could not be found out by the investigating officer. After referring to the wound certificates issued by the concerned Doctors who had examined the victim, it is argued that in neither of these wound certificates, any mention was made regarding the complicity of the accused to the crime whereas at a later stage, at the influence of the members of the family, a dying declaration was given implicating the accused. That apart, none of the circumstances relied upon by the prosecution have been proved. Crl.Appeal No.1964/2010 -:7:- There is no evidence to show that the accused was in possession of the so called acid which matter has not been investigated by the police. 13. It was also argued that there is no evidence to prove that the victim died on account of the injury sustained by her due to pouring of acid. She was discharged from the hospital at the instance of PW1 and it is after a few days from the date of discharge that she died at her residence. Therefore, it cannot be stated that the accused was guilty of the offence of murder. He also placed reliance upon the judgment of a Division Bench of this Court in _**Unnikrishnan v. State of Kerala**_ [ILR 2016 (4) Kerala 120]. In the said case, an incident occurred on 25/1/2009 by which the victim suffered cut and stab injuries on his head, stomach and other parts of the body. He died on 10/4/2009 while undergoing treatment in the hospital. The medical evidence indicated that the victim had recovered from his injuries and discharged on 2/3/2009. He was readmitted on 9/3/2009 diagnosed with 'jejunal fistula' and 'duodenal fistula'. A surgical procedure called “exploratory laprotomy” was conducted on 27/3/2009. But he died on 10/4/2009. One contention urged by Crl.Appeal No.1964/2010 -:8:- the accused was that the death of the victim was not on account of the injury sustained to him in the incident, which happened on 25/1/2009. Further, the victim died due to 'Septicemia' and it has not developed due to the injury suffered by the victim. It was held by the Division Bench that there was no evidence that the infection (Septicemia) developed from the site of any of the wounds. That apart, the Doctor opined that the deceased was fit for discharge on 2/3/2009. It was held that the prosecution could not prove that the death of the deceased was on account of the injury sustained, but there was evidence to prove ingredients of S.307 I.P.C. On this basis, it is argued that in this case also, the death was not on account of the acid being poured on the deceased. She was discharged from the hospital and died at home and therefore, offence u/s 302 I.P.C. will not lie against the accused. 14. On the other hand, learned Public Prosecutor placed reliance upon two judgments. ## (i) _**Sudershan Kumar v. State of Delhi**_ [(1975) 3 SCC 831]. That was a case in which the victim was a girl aged 19 years. Crl.Appeal No.1964/2010 -:9:- The accused poured acid on her and thereafter ran away. She was taken to a private hospital on 14/8/1967 at about 6.30 am. On 16/8/1967, it was found that she started having toxaemia and infection of the burns. On 21/8/1967, she was admitted at Safdarjang hospital at about 9 p.m. She died at the said hospital at 2.50 am on 26/8/1967. The contention of the appellant was that he did not kill the victim but intended only to disfigure her and therefore the offence would fall only u/s 304 Part I or under 326 of I.P.C. After referring to the Constitution Bench judgment in _**Virsa Singh v. State of Punjab**_ (AIR 1958 SC 465), it was held that the accused intended to cause injuries by throwing acid and the burns were to the extent of 35% of the body. If the burn exceeded 30%, the same would be dangerous to life. The Doctor who conducted postmortem opined that she died due to toxaemia and septicemia. It is caused due to absorption of toxins on account of the extensive superficial ulceration of the body caused by some corrosive material. It was held that when the act of the appellant in pouring acid on the body was a pre-planned one and he intended to cause the injury which he actually caused which in the ordinary course of nature was sufficient to cause death, the Crl.Appeal No.1964/2010 -:10:- appellant is guilty of an offence punishable u/s 302 IPC. (ii) Another judgment relied upon is _**Veerla Satyanarayana v. State of A.P.**_ [(2009) 16 SCC 316]. This was also a case of acid burns causing 60% burn injuries. It was held that injuries causing septicemia were sufficient in the ordinary cause of nature to cause death. Even if proper treatment is given, there is possibility of septicemia. In that case also, Apex Court held that when the prosecution has established beyond reasonable doubt the motive of the accused of causing the injury and the pouring of the acid on her body was pre-planned which caused 60% burn injuries which in the ordinary course of nature was sufficient to cause death, accused would be guilty of offence punishable u/s 302 IPC. 15. The attempt of the defence counsel while cross examining PW1 was to implicate PW1 for the crime. PW1, the husband of the victim, had in cross examination deposed that the victim was his third wife. It is brought out in evidence that there were family disputes between the victim and PW1 and that the matter was taken up before the Family Court and later settled. Cross examination proceeded on the basis that the attempt of Crl.Appeal No.1964/2010 -:11:- PW1 was to do away with the victim, his wife. PW1 in his chief examination stated that there was an earlier case where the accused had trespassed into the house of the victim and had committed rape on her. However, the accused was acquitted of the said charges. According to PW1, that was the motive for the accused to have committed the crime. 16. PW2 is the son of PW1 and the victim was his step mother. He is the one who had taken the victim to hospital. At the time of the incident, he was in a mill which was adjacent to the house and on hearing the cry of his father, other children and the victim, he ran towards the house. However, during cross examination, he stated that there is no reason for the police not recording that he had gone to the compound of his house hearing the cry of his father, the victim and the children. While he was being cross examined, suggestion of the defence was that PW1 had doubt regarding the character of the victim and her financial transactions, and to do away her, PW1 had poured acid on her. He denied the said suggestion. 17. PW7, sister of the victim deposed that she was taking care of the victim in the hospital and until she died on the third Crl.Appeal No.1964/2010 ## -:12:- day of coming back home. She had told her that acid was poured by a person by name Biju. When a suggestion was made to her that there was dispute between PW1 and the victim, she denied the said fact. She also denied the suggestion that PW1 had committed the crime. 18. PW22 is Dr.Rema who was working as Professor of Forensic Medicine, Medical College Hospital, Thiruvananthapuram. On 13/10/2008, she examined the accused and noted certain injuries. She opined that injury Nos. 1 to 6 were hyper pigmented form, non tender. Her opinion was that injury Nos. 1 to 6 are consistent with history of having been caused by contact with acid. The certificate is Ext.P24. Following were injury Nos.1 to 6 noted by the Doctor:- - _“1. Scar 1x1.5cm puckered on left side of face. 3 cm outer to mid line and 1 cm below eye._ _2. Two scars 2x0.2cm and 1.5x0.2 cm obliquely placed 0.3cm apart, parallel to each other on left side of face, upper inner end of the former being 1.5cm outer to ala of nose._ _3. Scar 1.3x0.2 cm on left side of face the upper end at the lower border of injury No.(1) and the lower end at the upper inner end of injury No.(2)._ _4. Scar 2.5x1.5 m with a trickle like tapering_ Crl.Appeal No.1964/2010 ## -:13:- _extension 3x0.5cm directed downwards and inwards on the outer and back aspect of right forearm 7cm below elbow._ _5. Scar 2.5 x0.8 cm with a trickle like tapering extension 1x0.3 cm directed downwards and inwards on the front of right forearm 4 cm below elbow._ _6. Scar 1x0.5cm on the outer aspect of right forearm 11 cm above wrist.”_ 19. PW23 while working as Judicial First Class Magistrate at Perumbavoor had recorded the dying declaration of the victim at the Medical Trust Hospital, Ernakulam on 17/1/2002. Ext.P25 is the dying declaration. In Ext.P25, PW23 has recorded that the patient was seen lying in bed and was being given oxygen. The mask was removed for the purpose of recording statement. Statement was recorded on 17/1/2002 at 3.20 p.m. The Duty Doctor K.P.Shajeer was also present in the room while the victim was giving the statement. When the Magistrate asked her as to what happened, she had stated that she had gone out at 8 p.m to her courtyard for taking clothes which was near the hen coop. Immediately, Kangarappady Biju (accused) with whom she had a case had poured a water like thing on her face. It fell on her face, head, stomach and her back. She immediately went inside the Crl.Appeal No.1964/2010 -:14:- house. There was electric light in the house and in the nearby mill. The incident was sudden and unexpected. Her husband was in the house. She had gone out since her husband was inside the house. Biju was known to her. He was hiding near the hen-coop. He was on logger heads with her. He was also disturbing her by calling on her from the mobile phone stolen from her on the new year day. She had mentioned that to the police. She knew that it was Biju who had called over phone. That was the immediate provocation. Ext.P25 also contains a statement of the Doctor in which Dr.K.P.Shajeer has recorded that she was conscious, well oriented and fit to give correct details regarding the case. In his evidence, PW23 had stated that he had correctly and fully recorded the statement. Though PW23 was cross examined, nothing has been brought out to indicate that the victim was not in a position to give the statement. Ext.P21 is the report of the Assistant Chemical Examiner to Government. It is marked through PW19. The items sent for analysis were as under:- _“I. One packet labelled 'T.28/02...etc' having two polythene cover containing the following material objects._ _I(a) One polythene cover containing three pieces of_ Crl.Appeal No.1964/2010 -:15:- ## _bark of Anjili tree_ (ആഞ�ല�). _1(b) One polythene cover containing five dried brownish leaves of 'Anjili' having yellowish stains at places._ _II. One packet containing three items marked IIa IIb and IIc in the laboratory, containing the following material objects._ _II(a) An opened glass bottle of capacity 930 ml without lid having sandy particles at places._ _II(b) One old white towel having yellowish stains at places._ _II(c) One partly damaged white polyster cloth having yellowish stains at places.”_ 20. On analysis, it was observed that all the items showed positive for nitric acid. 21. From the aforesaid evidence, it is clear that nitric acid was poured on the victim. She was hospitalised for a considerably long period. She was discharged at her request and went home. She died within three days. The Doctor who conducted postmortem had opined that deceased died due to infection following the burns. When acid is poured on the body of a person and the ante-mortem injuries showed that she had burns of more than 30%, it is enough in the normal circumstances to cause death. She lost her eye sight and she suffered for a long period. PW15 the Plastic Surgeon who treated the victim stated that she Crl.Appeal No.1964/2010 -:16:- had 30% deep burns. She was treated till 17/4/2002 after being admitted in the hospital on 30/1/2002. She had improved. She had burns on her eyes. She was totally blind and due to deep burns, she could die at any time. During cross examination, he stated that he heard that she died after 48 hours of discharge. In the deeper point, there was infection at the time of discharge. According to him, he was satisfied with improvement of skin and death is possible due to corrosive burn and even 15% is sufficient to cause death due to corrosive burn. PW14 was the Chief Medical Officer of Medical Trust Hospital. It is reported that she had deep burns with surrounding discolorations of face upper chest from both upper limbs and according to him she had total of 40% of corrosive burns. The alleged cause was acid thrown on the face by her neighbour Biju at Vengola on 15/1/2002. In cross examination he stated that injuries in the case were not curable. The corrosive burns are very painful and her condition had not improved. During re-examination, for a Court question, the answer was as follows:- ## _“Is there any possibility for survival ?(Q)_ _Anything more than 40% has very high mortality._ Crl.Appeal No.1964/2010 -:17:- _Corrosive burns still higher mortality, though it is of 40% (A).”_ 22. Therefore, when a patient is brought with 40% corrosive burns caused due to pouring of nitric acid, the medical evidence clearly indicates that such injury is likely to cause death. Therefore, while pouring acid on the face of a victim, the assailant knew very well that it is likely to cause death. Under such circumstances, it may not be possible for this Court to arrive at a conclusion that it will only amount to an offence u/s 307 I.P.C. 23. The previous enmity of the accused with the victim has been proved by PW1 as well as the dying declaration recorded by the learned Magistrate. The question is whether the accused himself has committed the crime. Apparently, the only evidence pinpointing the accused to the crime is the dying declaration recorded by the learned Magistrate coupled with the evidence of PW1 and PW7. The question is whether the dying declaration was recorded in a proper manner. Learned Magistrate who recorded the dying declaration was cross examined. But nothing has been brought out to indicate that there is any legal infirmity in accepting the dying declaration. Crl.Appeal No.1964/2010 -:18:- 24. Of course, accused and the victim were not in good terms and they were having animosity. According to the victim, what she has stated in the dying declaration is that the accused had called her on the new year day for which a complaint was filed which is the immediate cause for the grudge. Learned counsel for the appellant submits that there are certain suspicious circumstances involved in the matter. It is stated that the bottle was produced by PW1 which by itself would prove his involvement in the offence. But, it is relevant to note that when PW7, sister of the victim was examined, she did not have a case that PW1 has committed the crime nor there were substantial difference of opinion between them. If PW1 was involved in the crime, the victim would have definitely informed the same to her sister, who was all along with her till her death. 25. It is settled law that when a dying declaration can be believed, no further corroboration is required in the matter. This is an instance where the accused had committed the crime by hiding near the hen coop in the residential compound of the victim. Incident happened by 8 p.m when she came out to take her clothes. Therefore, the prosecution could prove the case only Crl.Appeal No.1964/2010 -:19:- based on circumstantial evidence. In the case on hand, she did not die immediately and she had given a statement to the learned Magistrate stating as to who has committed the crime. She had told the same to PW1 and PW7 also. In the said circumstances, when the Court below had taken note of the dying declaration and had arrived at a finding, we do not find any of those findings perverse enough to interfere with the judgment and take a different view. Accordingly, we do not find any merit in the appeal. No grounds are made out to interfere with the sentence. The appeal shall stand dismissed. **==> picture [27 x 12] intentionally omitted <==** ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **K.P.JYOTHINDRANATH, JUDGE** Rp