Gopakumar v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 17TH DAY OF SEPTEMBER 2012/26TH BHADRA 1934 CRL.A.No. 1227 of 2008 ( ) -------------------------SC.138/2004 of I ADL.S.C., TRIVANDRUM CP.296/2002 of J.M.F.C.,KATTAKADA APPELLANT(S)/APPELANT: --------------------- GOPAKUMAR, C.NO.2002, C.P., TVM. CENTRAL PRISON, TRIVANDRUM. BY ADVS.GRASHIOUS KURIAKOSE SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): -------------- STATE OF KERALA REPRESENTED BY A PUBLIC PROSECUTOR. BY ADV. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR & C.T.RAVIKUMAR,JJ. --------------------------------------------CRL.A.NO.1227 OF 2008 --------------------------------------------Dated 17[th] September, 2012 ## ORDER ## Sasidharan Nambiar,J. Appellant is challenging his conviction and sentence for the offence under Section 302 of Indian Penal Code by first Additional Sessions Judge, Thiruvananthapuram in S.C.138/2004. Deceased Saraswathy Ammal is the wife of the appellant. PW3 Praveen, PW4 Praveena and Pravitha are the children of the appellant and deceased Saraswathy Ammal. PW1 Viswamma is the sister of the appellant and PW2 Radhammal is the sister of deceased Saraswathy Ammal. PW10 Subash is the son of another sister of the deceased. The prosecution case is that the appellant along with deceased Saraswathy Ammal and PW3 were residing in a house at Cheriakonni in Crl.A.1227/2008 2 Aruvikkara village, near to the house of PW1. PW4 and Pravitha were residing in the house of the sister of the deceased at Manakkad. Appellant used to consume alcohol and treat his wife cruelly alleging doubt on her chastity. On the morning of 23/6/2002 appellant along with Saraswathy Ammal and PW3 had gone to Plamoodu, to see the doctor. Thereafter they came to Statue and appellant sent Saraswathy Ammal and PW3 in a bus from Statue to their house, disclosing that he has to see a friend. PW3 after taking lunch went to the house of one of his friends, as he has to attend the marriage of the sister of that friend. The appellant came back to the house by 4 p.m. The deceased alone was there in the house. While she was serving him food, appellant picked up quarrel with the deceased Crl.A.1227/2008 3 and questioned her chastity. It is alleged that appellant then got infuriated and poured kerosene on the body of his wife and set fire. Saraswathy Ammal cried aloud. Hearing it, PW1 and other neighbours rushed to the house. They found the deceased Saraswathy Ammal in flames. They also found that appellant sustained burns. They took both the appellant and Saraswathy Ammal to Medical College hospital. Dr.Haridas examined Saraswathi Ammal and prepared Ext.P14 wound certificate. He examined appellant and prepared Ext.P15 wound certificate. Both were admitted as inpatients in Medical College Hospital, Thiruvananthapuram. While the deceased was being treated as inpatient, getting information that she is admitted in the hospital, sustaining burns, PW9 Surendran, Assistant Sub Inspector reached the Medical Crl.A.1227/2008 4 College Hospital and recorded Ext.P7 FI statement and Ext.P1(a) body note at 9 p.m on 27/6/2002. On returning back to the police station, he prepared Ext.P7(b) FIR and registered Crime No.131/2002 of Vilappilsala police station for the offences under Sections 323 and 307 of Indian Penal Code. Ext.P7(b) FIR was received by the learned Magistrate at 10.30 a.m on 28/6/2002. PW11 Sub Inspector conducted investigation. On 28/6/2002 at 11.10 a.m he went to the house of the appellant and prepared Ext.P6 scene mahazar, in the presence of PW8 Santhosh Kumar. From the scene of occurrence PW11 seized Mos.1 to 4 dresses of the deceased which were kept in the house while she was being removed to the hospital having the smell of kerosene, MO.5 kerosene stove, MO.6 Can and Mo.9 match box and Mos.7 and 8 burned pieces. Crl.A.1227/2008 5 On 29/6/2002 as instructed by PW12 the Circle Inspector, PW11 went to the hospital and submitted requisition to the doctor to record the dying declaration of Saraswathy Ammal. As instructed by the doctor, PW11 recorded Ext.P8 dying declaration in the presence of PW10 Subash, who affixed his signature along with the doctor in Ext.P8. While being treated as an inpatient Saraswathy Ammal died due to the burns at 11.50 p.m on 14/7/2002. PW12 Circle Inspector who took over the investigation on 28/6/2002, kept surveillance on the appellant, who was being treated as inpatient and on his discharge arrested the appellant on 23/7/2002. On the death of Saraswathy Ammal due to the infected burns, he submitted Ext.P13 report altering the offences under Section 302 from 307 of Indian Penal Code. He submitted the Crl.A.1227/2008 6 necessary requisition and PW5 Dr.Sasikala, Associate Professor, Department of Forensic Medicine, Medical college, Thiruvananthapuram conducted autopsy and prepared Ext.P2 postmortem certificate finding that Saraswathy Ammal died due to the infected burns involving 40% of the body surface. After completing the investigation PW12 laid the charge before Judicial First Class Magistrate, Kattakada, who committed the case to the Sessions Court. Learned Sessions Judge made over the case for trial to first Additional Sessions Judge. Appellant is defended by a counsel of his choice. 2. When the learned Additional Sessions Judge framed the charge for the offence under Section 302 of Indian Penal Code and read it over and explained to the appellant, he pleaded Crl.A.1227/2008 7 not guilty. The prosecution examined 12 witnesses and marked 15 exhibits and got identified 9 material objects. After closing the prosecution evidence, appellant was questioned under Section 313 of Code of Criminal Procedure. When the incriminating evidence was put to the appellant, he denied the same and contended that he is innocent. Appellant additionally stated that on the morning of that fateful day he had taken Saraswathy Ammal and PW.3 to a doctor and by 11 a.m he sent both of them to the house in a bus and thereafter he went to Pulayanarcotta for his work and returned back to the house by 4 p.m. Saraswathy Ammal gave him meals. He had entrusted Saraswathy Ammal Rs.2,000/- for depositing in the bank, the previous day. While taking meals he asked her whether she will Crl.A.1227/2008 8 remit that amount on Monday. Saraswathy Ammal disclosed to him that she has already spent that amount. Hearing the answer, appellant stated that he does not want the meals and for washing the hands took a vessel of water and went out. By that time he found the wife in flames. She disclosed to the appellant that fire was spread when the stove had fallen. That was also the statement made when she was taken to the hospital. She called the appellant and sought help to save her, when she was in flames. Appellant forcibly made her sit and took water in a can and poured it over her body and put out the fire. By that time appellant also got fire below his waste and hands. He does not know how the wife happened to be in flames. After hearing the prosecution and the defence, finding that it is not a case Crl.A.1227/2008 9 for acquittal under Section 232 of Code of Criminal Procedure, learned Additional Sessions Judge called upon the appellant to enter on his defence and adduce evidence. Appellant then examined DW1 Chellammal, the mother of the deceased and got marked Ext.D3 copy of the plaint filed before Family Court, Thiruvananthapuram by DW1 for and on behalf of PW3 and his sisters for maintenance and Ext.D4 judgment and Ext.D4(a) copy of decree and Ext.D5 notice received by the appellant from Family Court, in execution of the decree. Learned Additional Sessions Judge on the evidence found the appellant guilty and convicted him for the offence under Section 302 of Indian Penal Code. Appellant was sentenced to imprisonment for life. He was granted benefit under Section 428 of Code of Criminal Crl.A.1227/2008 10 Procedure for the period he has been in custody. Appellant filed the appeal from prison challenging the conviction and sentence. Though a State Brief was appointed to appear for the appellant originally, later learned Senior counsel Sri.Gracious Kuriakose was engaged by the appellant. 3. Learned Senior counsel submitted that there is no evidence to prove the prosecution case that appellant poured kerosene and set fire on his deceased wife. It was argued that though the injured wife was admitted in the hospital, the alleged cause of injury disclosed in her Ext.P14 wound certificate was that the burns were sustained due to explosion of the stove. It was pointed out that even in Ext.P8 dying declaration recorded by PW11, it was stated by the injured that she disclosed to the Crl.A.1227/2008 11 doctor the cause of burns, in order to save the children from facing her fate. It was therefore, argued that first version of the injured made to the doctor as to how she sustained burns was that it was by explosion of stove and the fact that she did not implicate the appellant then, establish that the subsequent case in Ext.P7 is not true. Learned Senior counsel pointed out that though Saraswathy Ammal sustained 40% burns and admitted in the hospital on the evening of 23/6/2002, Ext.P7 FI statement was recorded only on 27/6/2002 and therefore three days lapsed before recording the FI statement and hence Ext.P7 had lost its natural value and because of the conduct of the appellant towards her, due to the persuasion of her relatives the false case set up in Ext.P7 FI statement. Crl.A.1227/2008 12 Learned Senior counsel also argued that even though Ext.P8 dying declaration was later recorded on 29/6/2002, Ext.D6 treatment records with the evidence establish that Saraswathy Ammal was not apprehending death while furnishing the declaration and there was no urgency for PW11 to record the dying declaration and the investigating officer could have submitted a requisition before the concerned Judicial First Class Magistrate to record the dying declaration and the attempt was to avoid the recording of dying declaration by a Magistrate so as to create false evidence. Learned Senior counsel argued that Ext.P8 dying declaration shows that question whether the deceased was apprehending death was not even put to the injured and the fact that she died only on 14/7/2002 establish that Investigating Crl.A.1227/2008 13 officer could have got the dying declaration recorded by the Magistrate. Relying on the decision of the Apex Court in **Kamala v. State of Punjab (AIR 1993 SC 374)** learned Senior counsel argued that when the so called dying declaration suffers from serious infirmities, without insisting for corroboration the dying declaration cannot be the sole basis for the conviction. Learned Senior counsel also argued that there are inconsistencies and contradictions in the versions of the injured as is clear from Ext.P14 wound certificate, Ext.P7 and Ext.P8 dying declaration. It was pointed out that though PW1 and PW4 claimed that similar dying declaration was made to them by deceased Saraswathy Ammal, that evidence is not credible and in view of the contradictions in the alleged dying declarations, Ext.P8 dying Crl.A.1227/2008 14 declaration or the dying declaration sworn to by PW1 or PW3 cannot be accepted. Learned Senior counsel further argued that the evidence of PW1 shows that when she reached the house, she found the appellant pouring water on the deceased which establishes that appellant attempted to put out the fire and if the appellant was responsible for the fire, he would not do it. Learned Senior counsel also argued that when the appellant sustained 20% burns, it is clear that he sustained burns in his attempt to save his wife, which does not go hand in hand with the prosecution case. Learned Senior counsel argued that the case that appellant poured kerosene and set fire on the deceased was set up later because of the conduct of the appellant towards his wife, when the possibility of attempt to commit suicide by Crl.A.1227/2008 15 the deceased, who later succumbed to the burns, cannot be ruled out and hence appellant cannot be convicted for the offence under Section 302 of Indian Penal Code. It was firstly argued that even if the evidence shows that appellant was treating the wife with cruelty and was alleging unchastity on her, that by itself will not establish that appellant committed the homicide. It is therefore, argued that when there is no direct evidence and the prosecution case is based on circumstantial evidence and the dying declaration cannot be accepted and homicide was not conclusively proved and possibility of suicide cannot be ruled out, appellant is at least entitled to the benefit of doubt and therefore, the conviction is to be set aside. 4. Learned Public Prosecutor pointed Crl.A.1227/2008 16 out that Ext.P7 FI statement was furnished by the injured herself and she had disclosed how she sustained burns and evidence of PW9 establishes that it was disclosed at the time of recording Ext.P7 by the injured that appellant poured kerosene on her body and set fire. It was pointed out that evidence of Pws.2 and 4 establish that while Saraswathy Ammal was being treated as an inpatient, she disclosed the very same facts to them and their evidence as to what the injured Saraswathy Ammal disclosed to them was not seriously challenged and there is no reason to disbelieve the evidence. It is argued that evidence of Pws.2 and 4, establish that the injured disclosed to them that she sustained burns when the appellant poured kerosene on her and set fire and it corroborates the version in Ext.P7. Crl.A.1227/2008 17 It was also argued that there is no rule that a dying declaration shall be recorded by a Magistrate alone and evidence of PW11 establish that he submitted a requisition to record the dying declaration and at the instance of the doctor, PW9 recorded Ext.P8 dying declaration in the presence of PW10 and other witnesses and the doctor and the injured disclosed the same cause to Pws.2 and 4 and in such circumstances, there is no reason to discard Ext.P8 dying declaration also. Learned Public Prosecutor also submitted that there is no rule that a dying declaration cannot be the sole basis for conviction and when there is no reason to disbelieve the dying declaration, the conviction is perfectly correct. Learned Public Prosecutor also pointed out that statement in Exts.P14 and P15 wound certificates that Crl.A.1227/2008 18 injured sustained burns while exploding the stove was proved to be incorrect by the evidence of PW11 who prepared Ext.P6 scene mahazar as he found the stove intact and at the time of evidence there was not even a suggestion that the stove had exploded and even appellant when questioned under Section 313 of Code of Criminal Procedure, has no such case. It is therefore, argued that there is only one version which is consistent as seen in Ext.P7 as well as disclosed to Pws.2 and 4 and Ext.P8 and in such circumstances, the conviction is only to be confirmed. 5. The fact that appellant, deceased Saraswathy Ammal and PW3 alone were living together in the house at the relevant time is admitted. It is also admitted that since two years prior to the incident, PW4 and the other Crl.A.1227/2008 19 daughter were living in the house of another sister of deceased Saraswathy Ammal at Manakkad. It is also admitted that appellant along with wife and PW3 had gone to see the doctor on the morning of 23/6/2002 and after seeing the doctor appellant sent deceased Saraswathy Ammal and PW3 in a bus to their house and appellant did not accompany them. Appellant admittedly returned back to the house only by 4 p.m. These facts stated in Ext.P7 FI statement proved by the evidence of PW9 and also deposed by Pws.2 and 4 as disclosed to them by the injured was not disputed at the time of their cross examination. Even when appellant was questioned under Section 313 of Code of Criminal Procedure, he unambiguously admitted these facts. Appellant also admitted correction of the version in Ext.P7 and the Crl.A.1227/2008 20 evidence of Pws.2 and 3 that the deceased disclosed to them that deceased served food to the appellant and while taking food there was a quarrel. According to the evidence of Pws.2 and 4 appellant quarreled with the deceased on the allegation of unchastity on the deceased as disclosed to them by the deceased. The evidence of PW1, the sister of the appellant that appellant used to ill-treat Saraswathy Ammal, alleging that she was having relation with others, and he used to manhandle her after consuming liquor was not even challenged in cross examination. In such circumstances, we find no reason to discard the prosecution case that quarrel was because of the allegation of the appellant on the unchastity of the deceased. 6. The fact that deceased Saraswathy Ammal Crl.A.1227/2008 21 sustained burns and the appellant also sustained burns and both were taken to the hospital by PW1 and others, who reached there hearing the cry of the deceased, was not disputed. The fact that Saraswathy Ammal was treated as an inpatient in Medical College Hospital, Thiruvananthapuram from 23/6/2002 till she died at 11.50 p.m on 14/7/2002, as evidenced by Ext.D6 treatment records was also not disputed. The evidence of PW5 the Associate Professor with Ext.P2 postmortem certificate conclusively establish that death of Saraswathy Ammal was caused due to 40% of infected burns sustained by Saraswathy Ammal. The fact that she died due to the infected burns was not only not disputed at the time of evidence but was also admitted by the appellant while questioning under Section 313 of Code of Crl.A.1227/2008 22 Criminal Procedure. The only question in such circumstances is, whether she sustained burns when appellant poured kerosene and set fire on her as found by the learned Sessions Judge. 7. Though Exts.P14 and P15 wound certificates of Saraswathy Ammal and the appellant, respectively, establish the alleged cause of burns as “stove exploded”, as stated earlier it is not disputed that it is not a true and correct statement and no stove was exploded and neither Saraswathy Ammal nor the appellant sustained burns by explosion of a stove. Though at the time of questioning under Section 313 of Code of Criminal Procedure, appellant had a case that Saraswathy Ammal disclosed to him that she sustained burns from a stove, we find no possibility of an accidental fire. If in fact there was such a Crl.A.1227/2008 23 disclosure, appellant would not have disclosed to the doctor, when he was admitted there and the doctor prepared Ext.P15 wound certificate that alleged cause was the result of explosion of the stove. The very fact that appellant did not disclose that he sustained burns while he attempted to save his wife, when caught fire accidentally, establish that that statement made while questioning under Section 313 of Code of Criminal Procedure is not true. More over, if Saraswathy Ammal sustained burns accidentally when fire spread from the stove, and appellant attempted to save her, he would not have sustained burns on his hands. The story of making the injured forcibly sit, before pouring water disclosed by the appellant while questioning under Section 313, can never be true. If a husband finds his wife in flames, Crl.A.1227/2008 24 in the ordinary human conduct attempt would either to make the wife roll on the floor or pour water on her body immediately. It cannot be believed that appellant husband would make the wife to forcibly sit by pushing her and then poured water. That story itself is unbelievable and could only be the result of an attempt to explain the burns sustained by him, as the wife disclosed the cause of burns to Pws.2 and 4 from the hands of the appellant, when he poured kerosene and set fire on her. The burns sustained by the appellant, proved by Ext.P15 wound certificate, strengthens the dying declaration made to Pws.2 and 4, as spoken to by them. 8. Honourable Supreme Court in Kamala's case (supra) relying on the decision in **Kushal Rao v. State of Bombay (AIR 1958 SC 22** ) held Crl.A.1227/2008 25 that where there are more than one dying declaration and if some inconsistencies are noticed, the Court has to examine the nature of the inconsistencies namely whether they are material or not and in scrutinizing the contents, Court has to satisfy that the dying declaration was voluntarily made and was truthfully disclosed and if so satisfied, it could be the sole basis for conviction. Their ## Lordships held; “It is well-settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various tests. (vide Khushal Rao v. State of Bombay, 1958 SCR 552: (AIR 1958 SC 22)). The ratio laid down in this case has been referred to in a number of subsequent cases with approval. It is also settled in all these cases that the statement should be consistent throughout if the deceased had several opportunities of making such dying declarations, that is Crl.A.1227/2008 26 to say, if there are more than one dying declaration they should be consistent. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without even any corroboration. In a case where there are more than one dying declarations if some inconsistencies are noticed between one and the other, the court has to examine the nature of the inconsistencies namely whether they are material or not. In scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances. The facts of the case reveals that in that case four inconsistent and contradictory dying declarations were recorded. First dying declaration was recorded by the doctor who treated the injured to the effect that she sustained burns when her mother-in-law sprinkled kerosene on her from behind and burnt Crl.A.1227/2008 27 her. The second dying declaration was recorded to the effect that she got burnt by her clothes catching fire from a stove accidentally. The third dying declaration was recorded by Sub Inspector to the effect that she sustained burns when somebody set fire from behind and it may be possible that it might have been set in by her mother-in-law or father-in-law. The fourth dying declaration was recorded to the effect that when the injured had gone to the kitchen and she turned to the store, she heard father-in-law and mother-in-law talking behind her and suddenly they poured kerosene over her. It is thus clear that those dying declarations are not only bristled with inconsistencies but are contrary to each other and destroy one another. It is in such circumstances, their Lordships, found that Crl.A.1227/2008 28 those dying declarations cannot be accepted and it cannot be the sole basis for the conviction. 9. A three Judge Bench in Kushal Rao's case (supra) considered the question whether the dying declaration can be the sole basis for the conviction and whether it is a weak piece of evidence. Their Lordships held; “16. On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, in agreement with the opinion of the Full Bench of the Madras High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (a) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence that other pieces of evidence; (4) that a dying Crl.A.1227/2008 29 declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as for as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the lying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the Crl.A.1227/2008 30 official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. 17. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once, the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court, after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact Crl.A.1227/2008 31 that the Court, in a given case, has come to the conclusion that particular dying declaration was not free from the infirmities, referred to above or from such other infirmities as may be disclosed in evidence in that case.” 10. It is settled that a dying declaration, if found credible and trustworthy could form the sole basis for conviction. Before accepting the dying declaration, it should be subjected to the test of reliability. If on such examination the Court finds that the dying declaration sought to be proved is credible and trustworthy and does not suffer from any infirmity, it can definitely be even the sole basis for conviction. The question whether the dying declaration is credible, trustworthy or suffers from any infirmity depends upon the evidence in each case. Crl.A.1227/2008 32 11. Though it is always ideal to get a dying declaration recorded by Judicial Magistrate, it is not the law that the dying declaration if not recorded by the Magistrate cannot be accepted or cannot be the basis for the conviction. Honourable Supreme Court in ## **Ramawati Devi v. State of Bihar (AIR 1983 SC** ## **164)** held; “7. In our opinion neither of these two decisions relied on by the appellant is of any assistance in the facts and circumstances of this case. These decisions do not lay down, as they cannot possibly lay down, that a dying declaration which is not made before a Magistrate, cannot be used in evidence. A statement, written or oral, made by a person who is dead as to the Crl.A.1227/2008 33 cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question, becomes admissible under section 32 of the Evidence Act. Such statement made by the deceased is commonly termed as dying declaration. There is no requirement of law that such a statement must necessarily be made to a Magistrate. What evidentiary value or weight has to be attached to such statement, must necessarily depend on the facts and circumstances of each particular case. In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and Crl.A.1227/2008 34 circumstances of the case.” (underline supplied). 12. The fact that Saraswathy Ammal was fit to make dying declaration either to PW2 or PW4 as deposed by them was not disputed. Ext.D6 treatment records establish the mental condition of the injured and her capacity to give a declaration. Ext.D8 dying declaration was signed by the doctor also. In such circumstances, it cannot be said that the dying declarations, was bad for the incapacity of the injured due to her mental condition to disclose as to how she sustained burns. 13. As stated earlier when PW2 or PW4 was examined, their evidence that the deceased disclosed to them as to how she sustained burns and she sustained burns when the appellant poured kerosene and set fire on her, was not challenged as such. It was not suggested to PW2 Crl.A.1227/2008 35 or PW4, much less, cross examined them on that aspect, that the injured was not in a fit state of mind to disclose the facts stated by them. It was also not suggested that the injured did not make a disclosure as claimed by PW2 and PW4. Naturally when PW2 the sister, and PW4 the daughter of the injured came to the hospital and enquired with the injured Saraswathy Ammal, as to how she sustained the burns, it is probable that she would disclose how she sustained burns. That exactly is the evidence of Pws.2 and 4. They deposed that Saraswathy Ammal disclosed to them that the appellant poured kerosene on her and set fire and Saraswathy Ammal caught hold of the appellant resulting in the burns sustained by him. 14. The evidence of PW11 establish Crl.A.1227/2008 36 that as directed by PW12 Circle Inspector, he went to the hospital on 28/6/2002 and recorded Ext.P8 dying declaration. Ext.P8 was recorded in question and answer form. The cause of the burns was asked to the injured and she disclosed that appellant poured kerosene and set fire to her. On the evidence, we find no reason to discard Ext.P8 also. 15. When appellant and the deceased alone were there in their house, when deceased Saraswathy Ammal sustained burns, appellant has definitely the burden to disclose as to what really transpired there. The statement of the appellant when questioned under Section 313 of Code of Criminal Procedure is to the effect that he did not find how she sustained injuries and after quarreling with the wife he abruptly stopped taking meals and went out to wash his Crl.A.1227/2008 37 hands and by that time the wife was found in flames. His case is that when he asked, the wife disclosed that the fire was caught from the stove. In the facts and circumstances of the case, possibility of such a fire can definitely be ruled out. First of all appellant had no case that while he was taking food, the wife was preparing or attempting to prepare any food using the kerosene stove. Therefore, there was no possibility of fire accidently catching on the dress of the deceased. More over, if such a disclosure was made to the appellant, the alleged cause of injury disclosed to the doctor as seen recorded in Ext.P15, can never be explosion of stove. Though learned Senior counsel argued that possibility of an attempt to commit suicide by Saraswathy Ammal cannot be ruled out, on the Crl.A.1227/2008 38 evidence we cannot agree. From the narration of the facts disclosed by the appellant, there is no possibility for the deceased to take kerosene and pour it on her, without the knowledge of the appellant, as there was no time gap between the appellant's alleged going out of the room and coming back and seeing the wife in flames. More over, if it was an attempt to commit suicide by pouring kerosene and setting fire, in all human probability the attempt would be to pour kerosene from the head onwards and not below the neck. From the nature of the burns as disclosed in Ext.D6 treatment records and the evidence of PW5 and Ext.P2 it is clear that it was not the result of an attempt to commit suicide. If that be so, it can only be a homicide and it can be the appellant who poured kerosene on Saraswathy Crl.A.1227/2008 39 Ammal and set fire on her. As held by the Honourable Supreme Court in **Trimukh Maroti Kirkan v. State of Maharastra (2006 (10) SCC** **681)** setting up of a false explanation, in such circumstances is definitely an additional link in the chain of circumstances, in a case depending on circumstantial evidence. Their Lordships held; “In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of Crl.A.1227/2008 40 |circumstances|to<br>make<br>it| |---|---| |complete. This view has been|| |taken in a catena of decisions|| |of this Court|(See State of T.N.| |v. Rajendran|(1999(8) SCC 679| |para 6); <br>|State of U.P v.| |Dr.Ravindra Prakadh Mittal (1992|| |(3) SCC 300|para 39); State of| |Maharashtra v. Suresh (2000 (1)|| |SCC 471 para|27); Ganesh Lal v.| |State of Rajasthan (2002 (1) SCC|| |731 para 15);|and Gulab Chand v.| |State of M.P|(1995 (3) SCC 574| |para 4).”|| On appreciating the entire evidence in the proper perspective we have absolutely no hesitation to hold that it was the appellant who poured kerosene on the body of his wife Saraswathy Ammal and set fire to her and caused her death due to the infected burns, while being treated at the hospital. It is also absolutely clear that the intention of the Crl.A.1227/2008 41 appellant was to cause her death by burning. Hence part firstly of Section 300 squarely applies to the facts of the case. None of the exceptions to Section 300 of Indian Penal Code is attracted. In such circumstances, conviction of the appellant for the offence under Section 302 of Indian Penal Code is perfectly correct and can only be confirmed. We find no reason to interfere with the sentence also. **==> picture [358 x 13] intentionally omitted <==** confirming the conviction and sentence. M.SASIDHARAN NAMBIAR, JUDGE. C.T.RAVIKUMAR, JUDGE. uj.