Crl.Appeal Nos.1913/2010 & 1981/2010

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.T.SANKARAN** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **FRIDAY, THE 1ST DAY OF APRIL 2016/12TH CHAITHRA, 1938** **CRL.A.No. 1913 of 2010 ( ) ---------------------------** **AGAINST THE JUDGMENT IN SC 136/2008 of ADDITIONAL DISTRICT COURT (ADHOC), THODUPUZHA** **APPELLANT/3RD ACCUSED:** **---------------------------** **MARIYAPPAN, S/O ANTHONY, HOUSE NO.158 MUNNAR PO.** **BY ADV. SRI.N.M.VARGHESE** ## **RESPONDENT/COMPLAINANT:** **--------------------------** **STATE OF KERALA/CIRCLE INSPECTOR OF POLICE,MUNNAR,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **BY ADV. SMT.PRAICY JOSEPH, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-04-2016, ALONG WITH CRA. 1981/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.T.SANKARAN & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **Crl.Appeal Nos.1913 and 1981 of 2010** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of April , 2016 ## **JUDGMENT** ## K.T.Sankaran, J. Crl.Appeal No.1981/2010 is filed by accused No.2 and Crl.Appeal No.1913/2010 is filed by accused No.3 in Sessions Case No.136/2008 on the file of III Additional Sessions Judge (Adhoc I), Thodupuzha. The first accused Bastin was not available for trial and it would appear that his case was not committed. However, in the judgment of the sessions court, it is stated that the case against the first accused was split up as he was absconding. It is not necessary to consider the legality or otherwise of the same, while disposing of these criminal appeals. 2. The prosecution case is the following : Selvi, the deceased, was married by Bastin ( first accused), the son of accused No.2 Muniyamma and accused No.3 Mariyappan. In the marital relationship between Selvi and Bastin, a girl child Manjula Crl.Appeal Nos.1913/2010 & 1981/2010 2 was born. Deceased Selvi is the daughter of PW1 ( Thankaraj) in his first wife Muthulakshmi. Muthulakshmi abandoned Thankaraj and eloped with another man. Deceased Selvi was taken by Muthulakshmi. Later Muthulakshmi married the brother of Muniyamma ( second accused). Selvi started residing in the house of Bastin and his parents at New Colony, Munnar. Even thereafter Muthulakshmi went with another man and the deceased Selvi thereafter was looked after by the second accused, Muniyamma and the third accused, Mariyappan. While so, Selvi was married to the first accused Bastin. 3. The prosecution alleged that the accused meted out cruelty to Selvi. On 9.9.2007 after 10 a.m. accused 1 and 2 poured Kerosene on the body of Selvi and accused No.1 lighted a match box and set ablaze her. Deceased Selvi sustained burn injuries to the extent of 35%. She was not taken to the hospital by the accused. Selvi was kept in the house of the accused. PW1, Thankaraj got information that his daughter got burn injuries. He rushed to the house of the accused. PW1 wanted to take Selvi to the hospital. Accused Nos. 2 and 3 Crl.Appeal Nos.1913/2010 & 1981/2010 3 resisted. Though it was the second accused, who according to PW1, informed him that Selvi sustained burn injuries, accused Nos. 2 and 3 did not allow Thankaraj ( PW1) to take Selvi to the hospital. Thankaraj ( PW1), the father of Selvi appraoched CPM leadership at the local level, who informed the Police. The Police came to the scene and helped PW1, Thankaraj and his nephew, Ramkumar to take Selvi to the hospital. Selvi was taken to Primary Health Centre, Suryanelli. Selvi was not admitted there and she was directed to be taken to Taluk Hospital. Since it was late, Selvi was taken to the house of Thankaraj and on the next day Selvi was admitted at Community Health Centre, Nedunkandam. Though Selvi's father was advised to take Selvi to Medical College Hospital, he could not do so in view of his impecunious circumstances. Selvi was discharged from the hospital on 22.09.2007 and she was brought to the house of Thankaraj. However, Selvi died on 6.10.2007 on account of the burn injuries sustained by her. 4. While Selvi was admitted in the Hospital, Ramkumar Crl.Appeal Nos.1913/2010 & 1981/2010 4 ( PW2), nephew of Thankaraj laid Ext.P1 First Information Statement before PW6, Assistant Sub Inspector of Police, Munnar Police Station, on the basis of which Ext.P1 (a) FIR was registered by PW6 for the offences under Section 498 A and 307 of IPC. After the death of Selvi, PW16, the Additional Tahsilder conducted inquest and prepared Ext.P2 inquest report witnessed by PW7. The postomortem was conducted by PW14 who issued Ext.P9 postmortem certificate. The investigation was conducted by PW20 and later by CW31, who completed the investigation and laid the charge. 5. The offfences alleged against the accused were under Sections 302, 498 A, 343 and 506 (1) read with Section 34 of IPC. As stated earlier, Bastin, the husband of Selvi was absconding. The trial court found accused No.2, Muniyamma guilty of the offences under Sections 343, 498 A and 302 of IPC and she was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.300/- and in default of payment of fine to undergo rigorous imprisonment for ten days for the offence under Section 343 of IPC, rigorous imprisonment 5 Crl.Appeal Nos.1913/2010 & 1981/2010 for three years and a fine of Rs.500/- and in default of payment of fine to undergo rigorous imprisonment for 15 days under Section 498 A of IPC and to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo rigorous imprisonment for one month for the offence under Section 302 of IPC. The trial court acquitted accused No.2 for the offences under Section 506 (1) of IPC. The trial court found accused No.3 guilty of the offences under Section 343 of IPC and he was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/and in default of payment of fine to undergo rigorous imprisonment for one month for the offence under Setion 343 of IPC. The third accused was acquitted of all the other charges levelled against him. 6. Ext.P9 postmortem certificate issued by PW14 shows the following antemortem injuries : _“1. Infected burns involving the left side of face, left ear, front and left side of neck, front of chest and abdomen upto a level 4 cm. above umbilicus, inner and back aspect of right arm,_ Crl.Appeal Nos.1913/2010 & 1981/2010 6 _elbow, forearm and all around the left upper limb sparing the back of arm._ _2. Hypopigmented area with spotty hyperpigmentation 3 x 1 cm. on the right upper eye lid just below the eyebrow._ _3. Hypopigmented area with spotty hyperpigmentation 5 x 3 cm. on the right side of face 1 cm. outer to right angle of mouth._ _4. Hypopigmented area with spotty pigmentation 10 x 3 cm. on the back of right hand and inner two finger._ _5. Hypopigmented area with spotty hyperpigmentation 6 x 3 cm. on the front of left thigh 8 cm. below top of hip bone._ _6. Healing burns over an area 8 x 2 cm. obliquely placed on the front of left thigh, 4 cm. above knee, covered with loosely adherent brown scab.”_ 7. The opinion as to cause of death shown in the postmortem certificate was that “ death was due to burns involving approximately 35% of body surface.” Crl.Appeal Nos.1913/2010 & 1981/2010 7 8. The oral evidence available before the trial court was that of PW1 to PW20. Ext.P1 to P21 were marked and Mos 1 to 8 were identified before the trial court. 9. PW1 Thankaraj, the father of deceased Selvi stated in evidence that the second accused telephoned and informed him that Selvi sustained a small burn injury. Immediately he went to the house of the accused and reached there by about11 a.m. PW1 could find that Selvi had sustained extensive burn injuries all over her body and he wanted to take her to the hospital immediately. He stated that he was not allowed to do so by accused Nos. 2 and 3 and they insisted that they could take Selvi to the hospital only in the evening. PW1 brought his nephew Ramkumar also and even thereafter accused Nos. 2 and 3 did not allow them to take Selvi to the hospital. Only after getting the assistance of Police, they could move Selvi to the hospital. She was treated at the Taluk Hospital, Nedunkandam. Though the Doctor directed that Selvi should be taken to the Medical College Hospital, he could not do so since he had no work and because of his impecunious Crl.Appeal Nos.1913/2010 & 1981/2010 8 circumstances. PW1 stated that he was told by Selvi and her daughter Manjula that the second accused Muniyamma poured kerozine on the body of Selvi and first accused Bastin set ablaze her. 10. PW2, Ramkumar also stated the incidents as stated by PW1. He also stated that Selvi told him that there were frequent quarrels in her matrimonial home and when she wanted to go to Suryanelli, she was pushed down by the second accused and called her a prostitute. The second accused poured kerozine on the body of Selvi and at that time the first accused lit a match box stick and put it on her body. 11. PW3 is the driver of a jeep. He stated that when he went to the house of the accused to take Selvi to the hospital, there was resistence on the part of accused Nos. 2 and 3 and they did not allow Selvi to be taken to the hospital. PW3 stated that they went to CITU office and informed the partymen, who informed the Police and got the assistance of Police to take Selvi to Suryanelli hospital, where she was not allowed admission. Selvi was thereafter taken to the house of Crl.Appeal Nos.1913/2010 & 1981/2010 9 PW1 and he returned to his house. PW3 saw that Selvi had sustained burn injuries and while going in his jeep, she was crying. 12. PW4, Manjula, is the daughter of deceased Selvi. She was aged 4 ½ years at the time of the incident. She deposed before the court that accused No.2 poured kerozine on the body of Selvi and accused No.1 set fire. 13. PW5 saw Selvi being taken to the hospital by putting her in a chair. She also stated that the neighbours did not use to go to the house of the accused since the accused were quarrelsome and they used to say abusive words to others. 14. PW6, the Assistant Sub Inspector of Police, stated that he registered the case on the basis of Ext.P1 FI statement given by PW2. He also stated that he got information that one Selvi was lying after sustaining burn injuries at her house and that the inmates of the house were not allowing her to be taken to the hospital. On getting this information, PW6 and the Head Constable went to the house of Selvi and necessary help was provided to remove her to the hospital. Crl.Appeal Nos.1913/2010 & 1981/2010 10 15. PW8 was working as a pediatrician who examined PW4 and issued Ext.P3 certificate. He recorded in Ext.P3 that Manjula, PW4 answered the question without any force or prompting by any person. Manjula was examined by PW8 on 15.10.2007, within ten days of the date of death of Selvi. 16. PW13, the then Judicial Magistrate of First Class, Adimali, recorded Ext.P8 dying declaration of Selvi in the early hours of 15.09.2007. In the dying declaration, Selvi stated that on 9.9.2007 accused 1 and 2 poured kerozine on her head and body and thereafter her husband ( accused No.1) lit a match box and put it on her body. She stated that the reason for the same was that when she stayed a few days at her house and came back to her husband's house, an allegation was made by the accused that she had gone with another man. 17. PW14 conducted the postmortem and the antemortem injuries noted above were noticed in Ext.P9 postmortem certificate. He stated in evidence that death was due to burns involving approximately 35% of the body surface. He also stated that 35% of burn is sufficient Crl.Appeal Nos.1913/2010 & 1981/2010 11 to cause death in the ordinary course of nature. 18. PW15, Civil Surgeon of Community Health Centre, Nedunkandam examined Selvi on 14.09.2007 and issued Ext.P10 wound certificate. In Ext.P10, the history and alleged cause of injury is stated to be the following : “ÍVJÞÕßæa ¥NÏᢠÍVJÞÕᢠµâ¿ß ÎæHH çÆÙJí ²Ýߺîí Äà µJߺîÄßW æÕºîí” 19. The trial court held that the minor discrepancies in the evidence of PW1 who is a villager would not amount to a serious contradiction making the prosecution story unbelievable or destroying his credibility. The trial court believed PW4 and relied on her evidence. It was held that the questions put to her by the court were answered by her spontaneously. The court below held that her evidence is corroborated by the dying declaration made by Selvi to PW1 and PW2 and further corroborated by the evidence given by the Doctor, who treated her at Nedunkandam hospital. The evidence of PW15 and Ext.P10 medical certificate would also corroborate the 12 Crl.Appeal Nos.1913/2010 & 1981/2010 dying declaration. The trial court held that accused Nos. 1 and 2 caused the burn injuries on the deceased. The plea of alibi made by the second accused was disbelieved by the court below. It was also held that the evidence does not disclose the role played by Accused No.3 in causing the burn injuries to the deceased. However, the court found that the third accused is also responsible for preventing Selvi being taken to the hospital. The oral evidence in the case was believed by the court below on appreciating the entire materials in the case and it was held that accused Nos. 1 and 2 were responsible for causing the burn injuries on the deceased and the deceased died as a result of such burn injuries. The contentions put forward by the defence were repelled by the court below after analysing and appreciating the oral and documentary evidence. 20. We have carefully perused the materials available in the case including the oral and documentary evidence. On perusing the evidence of PWs 1, 2, 3 and 4, it is fairly clear that Selvi was residing in the house of accused Nos. 1 to 3 at the time of the incident. The Crl.Appeal Nos.1913/2010 & 1981/2010 13 statement given by accused No.2 in her questioning under Section 313 of Cr.P.C. that she was not available at the house on the date of incident and she had gone to the hospital at Munnar is quite unbelievable. The evidence on record would fairly establish that accused Nos. 1, 2 and 3 were present in the house at the time of the incident. There is no case for the accused that anybody else was present at their residence at or about the time of the incident. There is also no specific case for the accused that the deceased sustained burn injuries in her attempt to commit suicide. The evidence of PWs 1 to 4 would also indicate that proper medical treatment was not provided to Selvi and the accused even prevented Selvi being taken to the hospital at the intervention of PW1 and PW2. The medical evidence available in the case would fairly show that the death of Selvi was due to burns involving approximately 35% of the body surface. The medical evidence would also indicate that 35% of burn is sufficient to cause death in the ordinary course of nature. There is no circumstance to disbelieve the evidence of PWs 1 to 4. Crl.Appeal Nos.1913/2010 & 1981/2010 14 21. Ext.P8 dying declaration also can be safely relied on. It was recorded by PW13, the Judicial Magistrate of the First Class after ensuring that what Selvi was stating was a free and voluntary statement. It is submitted by the learned counsel for the appellants that in the dying declaration what is stated is that on 9.9.2007 accused Nos. 1 and 2 poured kerosene over her head and body and thereafter the first accused lit a match box and put it on her body. But in the latter part of the statement, she stated that it was her husband who poured kerozine from the can on her head and body. The second answer was in response to a question made by the learned Magistrate as to whether she had seen her husband and the mother in law clearly at the time of the incident. We do not think that the answer in the second part of the dying declaration would constitute a deviation from what she stated in the first part of her statement. The court below also did not consider this discrepancy as very material. 22. The learned counsel for the appellant submitted that CW4, CW7, CW8, Cws10 to 12, CWs15 to CW17 and CW31 were not 15 Crl.Appeal Nos.1913/2010 & 1981/2010 examined by the prosecution and suppression of their evidence would cause serious doubts in the veracity of the prosecution case. On a perusal of the final report and the list of witnesses produced by Police before the Court, it is seen that CW4 was expected to speak that Selvi was removed to the hospital only with the help of Police. There is already the evidence of PW1 and PW2 on this aspect and the prosecution cannot be blamed for not examining CW4. CW8 was sought to be examined to show that there was quarrel between accused 1 to 3 and Selvi. To prove the same prosecution examined PW5 who was cited as CW9. CW10 to CW12 were sought to be examined to prove that there was commotion on many occasions at Selvi's house and they were aware that Accused Nos. 1 to3 set fire to Selvi and only with the help of Police, she was removed to the hospital. To prove these facts, prosecution has already examined witnesses and it cannot be said that evidence of Cws 10 to 12 was suppressed by the prosecution. CW15 to CW17 are witnesses to the inquest and scene mahazar which were already proved by the evidence of other witnesses. Crl.Appeal Nos.1913/2010 & 1981/2010 16 CW31 was the investigating officer from 6.10.2007 who completed the investigation and filed the final report. PW20 has given evidence before court that CW31 had submitted the final report and he was at the time of giving evidence in the United States of America. PW20 identified the signature and handwriting of CW31 and he had acquaintance with CW31 and his signature and handwriting. Therefore, non-examination of CW4, CW7, CW8, CW10 to 12, CW15 to 17 and CW31 cannot be said to be deliberate. It cannot also said to be suppression of material evidence in the case. It is the prerogative of the prosecution to decide how many witnesses should be examined to prove a particular fact. Multiplicity of evidence to prove the same set of facts should be avoided. The prosecution has only achieved that object by not examining these charge witnesses. The prosecution cannot be blamed for suppressing material evidence. 23. The learned counsel submitted that the prosecution solely rely on the dying declaration and no conviction can be based solely on the dying declaration. It is not true that the prosecution case rests Crl.Appeal Nos.1913/2010 & 1981/2010 17 solely on the dying declaration. The dying declaration of Selvi is sufficiently corroborated by the evidence of PWs 1 to 4 and the medical evidence available in the case. ## 24. In **Kishan Lai v. State of Rajasthan (AIR 1999 SC 3062)** , the Supreme Court, after considering the distinction between the evaluation of dying declaration under the English law and that under the Indian, law held thus : _"18. Now we proceed to examine the principle of evaluation of any dying declaration. There is distinction between the evaluation of dying declaration under the English law and that under the Indian law. Under the English law, credence and the relevancy of a dying declaration is only when person making such statement is in hopeless condition and expecting an imminent death. So under the English law for its admissibility, the declarant should have been in actual danger of death at the time when they are made, and that he should have had a full apprehension of his danger and the death should have ensued. Under the Indian law the dying declaration is relevant whether_ Crl.Appeal Nos.1913/2010 & 1981/2010 18 _the person who makes it was or was not under expectation of death at the time of declaration. Dying declaration is admissible not only in the case of homicide but also in civil suits. Under the English law, the admissibility rests on the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath. The general principle on which this species of evidence are admitted is that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak only the truth. If evidence in a case reveals that declarant has reached this state while making declaration then within the sphere of the Indian law, while testing the credibility of such dying declaration can course weightage be given. Of depending on other relevant facts and circumstances of case."_ 25. A dying declaration made by a person on the verge of his Crl.Appeal Nos.1913/2010 & 1981/2010 19 death has a special sanctity as at that solemn moment a person is most unlikely to make any untrue statement. The shadow of impending death is by itself guarantee of the truth of the statement of the deceased regarding circumstances leading to his death. ( See Narain Singh v. State of Haryana ( AIR 2004 SC 1616) and Babu Lal v. State of Madhya Pradesh [( 2003) 12 SCC 490]) 26. In **Sharad Birdhichand Sarda v. State of Maharashtra ( AIR 1984 SC 1622 )** a three Bench Judge of the Supreme Court held thus : _"18. Before closing this chapter we might state that the Indian law on the question of the nature and scope of dying declaration has made a distinct departure from the English law where only the statements which directly relate to the cause of death are admissible. The second part of Clause (1) of S. 32, viz., "”the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question" is not to be found in the English Law. This distinction has been clearly pointed out in the case of Rajindra Kumar v._ Crl.Appeal Nos.1913/2010 & 1981/2010 20 _The State, AIR 1960 Punjab 310, where the following observations were made:_ _“Clause (1) of Sec. 32 of the Indian Evidence Act provides that statements, written or verbal, of relevant facts made by a person who is dead,.......are themselves relevant facts when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case, in which the cause of that person's death comes into question....... It is well settled by now that there is difference between the Indian Rule and the English Rule with regard to the necessity of the declaration having been made under expectation of death. In the English Law the declaration should have been made under the sense of impending death whereas under the Indian Law it is not necessary for the admissibility of a dying declaration that the deceased at the time of making it should have been under the expectation of death."””_ 27. Selvi was being looked after by Accused Nos. 2 and 3 for the last several years after the brother of accused No.2 married Crl.Appeal Nos.1913/2010 & 1981/2010 21 Muthulakshmi, the mother of Selvi. In these circumstances, it cannot be assumed that Selvi would have falsely implicated accused Nos. 1 and 2, her husband and mother-in-law with a false case that they poured kerosene on her and set ablaze. The facts and circumstances would only show that Selvi was telling the truth. 28. For the aforesaid reasons, we are of the view that the court below rightly held that accused No.2 committed the offence under Section 498 A and 302 and 506 (1) of IPC. The court below was also right in holding that Accused No.3 was not guilty of the offences under Section 498 A and 302 and 506(1) of IPC. As regards the finding of the court below that accused Nos. 2 and 3 committed the offence under Section 343 of IPC is concerned, we are of the view that the facts and circumstances of the case and the evidence on record would not justify such a conclusion. We are of the view that only an offence under Section 341 would be attracted with respect to the allegation against Accused Nos. 2 and 3 that they wrongfully restrained movement of Selvi to the hospital even after the demand made by PW1. Crl.Appeal Nos.1913/2010 & 1981/2010 22 29. For the offence under Section 341 of IPC, we are of the view that it is sufficient to impose a sentence of simple imprisonment for one month. 30. The sentence awarded to accused No.2 for the offences under Section 498 A and Section 302 of IPC is just and proper. 31. For the aforesaid reasons, we allow the criminal appeals in part and modify the judgment passed by the court below as follows : a) The imprisonment of life and fine of Rs.5,000/- imposed on accused No.2 is confirmed. b) The rigorous imprisonment of three years and fine of Rs.5,00/- imposed on accused No.2 for the offence under Section 498 A is confirmed. c) The finding of guilt and the sentence thereunder of accused Nos. 2 and 3 under Section 343 of IPC is set aside and they are found guilty for the offence under Section 341 of IPC. Accused Nos. 2 and 3 are sentenced to undergo simple imprisonment for a period of Crl.Appeal Nos.1913/2010 & 1981/2010 23 one month for the offence under Section 341 of IPC. d) Accused No.3 would be entitled to set off under Section 428 of Cr.P.C. in respect of the period during which he was under judicial custody during investigation or pending trial of the case. We also hold that the sentence shall run concurrently in respect of accused No.2. ## **K.T.SANKARAN, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv.