Manoj S/o Mathai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY, THE 20TH DAY OF DECEMBER 2017/29TH AGRAHAYANA, 1939** **CRL.A.No. 1407 of 2012 (A) ---------------------------** **AGAINST THE JUDGMENT IN SC 588/2010 of ADDITIONAL SESSIONS COURT (ADHOC-1), ERNAKULAM DATED 11.5.2012** **APPELLANT/ACCUSED: --------------------** **MANOJ S/O.MATHAI, VAYAL PARAMBIL HOUSE, KEEZHANGANAM BHAGOM, POLIMTHANAKARA, POTHANICAD VILLAGE.** **BY ADVS.SRI.DINESH MATHEW J.MURICKEN SRI.BINCE PAUL** ## **RESPONDENT/COMPLAINANT/STATE:** **--------------------------------** **STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 (CRIME NO.221/2004 OF POTHANICAD POLICE STATION, ERNAKULAM DISTRICT).** **BY ADV. SMT.AMBIKA DEVI S, SPL.PUBLIC PROSECUTOR FOR ATROCITIES AGAINST WOMEN AND CHILDREN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2017, THE COURT ON 20-12-2017, DELIVERED THE FOLLOWING:** **kp** ## **A.M. SHAFFIQUE & P.SOMARAJAN, JJ.** ========================== Crl.Appeal No. 1407 of 2012 ==================== Dated this, the 20[th] day of December, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal is filed by the accused in SC No.588/2010 challenging judgment dated 11/5/2012 of the Additional Sessions Judge (Adhoc-I), Ernakulam by which the accused was convicted and sentenced to undergo imprisonment for life and to pay a fine of `2 lakh in default of which to undergo rigorous imprisonment for three years for the offence punishable u/s 302 of I.P.C. 2. The prosecution case is that the accused, who is the husband and father of two children, developed an illicit relationship with Lissy (deceased). He started residing with her in her house in Kadavoor Village. The accused demanded her gold ear studs for pledging which she refused, as a result of which, he had enmity towards her and they occasionally quarrelled while he was staying with her. On account of the aforesaid enmity, the accused poured kerosene on her in the kitchen of her house and lit a cigarette lamp Crl.Appeal No.1407/2012 -:2:- causing her to burn. She succumbed to those injuries. The incident happened on 17/4/2009 at 11.30 p.m and she died on 18/4/2009 at 12.55 p.m at the Malankara Orthodox Syrian Church Medical College Hospital, Kolencherry. 3. The police registered the case for offence u/s 307 I.P.C. and consequent to death of the deceased, the offence was altered to Section 302. After investigation, final report was filed before the Judicial First Class Magistrate, Kothamangalam and the Magistrate after complying with the procedural requirements committed the case to the Court of Sessions, Ernakulam which was made over to the Additional Sessions Judge (Adhoc-I) for trial and disposal. 4. Before Court, prosecution examined PW1 to PW16 and marked Exts.P1 to P17. The defence relied upon the oral testimony of DW1 to DW3 and marked Exts.D1 and D2. Witnesses identified the material objects MO1 to MO4. As already stated, the court below arrived at a conclusion that the accused was guilty of the offence alleged and accordingly he was punished u/s 302 IPC. 5. Learned counsel for the appellant contended that there was absolutely no evidence to connect the accused with the Crl.Appeal No.1407/2012 -:3:- murder. It was only a successful suicidal attempt made by the victim. It is also contended that the Court below should not have placed much reliance on the alleged dying declaration of the victim especially when it was found that she was having 90% burns. It is argued that the victim herself had poured kerosene and attempted to commit suicide and later because of animosity towards the appellant, allegation was made against the accused. It is also contended that the accused suffered burn injuries which would establish that he was trying to put out the fire. The argument is that Court below committed serious error in convicting the accused. 6. Learned counsel also placed reliance upon the following judgments:- - (i) _**Laxmi v. Om Prakash and others**_ [(2001) 6 SCC 118] - (ii) _**Uka Ram v. State of Rajasthan**_ [(2001) 5 SCC 254] - (iii) _**Gopal v. State of M.P.**_ [(2009) 12 SCC 600] - (iv) _**Mohan Lal v. State of Haryana**_ [(2007) 9 SCC 151] - (v) _**Narendra Singh Bisth v. State of Kerala**_ (2017 (3) KHC 204) 7. We shall consider the judgments after considering the Crl.Appeal No.1407/2012 -:4:- factual circumstances arising in the case. 8. Apparently, the prosecution has relied upon the circumstantial evidence. Evidence of PWs1 to 5 would show that the accused was having a relationship with the deceased. 9. PW1 is a neighbour of the deceased. He knew the accused, since the accused is a frequent visitor to her house. He had also gone with the accused for painting works. According to him, the incident happened at about 11.30 p.m on 17/4/2009 in the house of the deceased. He deposes that his aunt Elsy is residing near the house of deceased. There was quarrel between aunt's children. He suddenly rushed to his aunt's house. While going to his aunt's house, he saw fire in the kitchen side of the house of deceased. He informed the matter to his aunt. When they came out, accused told them that Lissy caught fire and he came to his aunt's house. Aunt's children told the accused that he may go away from the scene and he need not come. PW1's uncles, Jose, Johny etc came. All of them together along with the aunt's children came out. Accused went to Madampilly Kunnel house. They also scolded him and he was asked to go away. It is after police had come that they had gone to the house of the Crl.Appeal No.1407/2012 -:5:- deceased. She was seen in a burnt condition in her nighty. All of them took her to Kolencherry Hospital. Lissy died on the next day. During cross examination, he stated that the kitchen of the deceased could be seen from aunt's house and there is a direct entry to Lissy's house from the road. 10. PW2 is Elsy. She deposed that at about between 5 and 6 p.m on 17/4/2009, she heard a quarrel between the accused and deceased with reference to demand for pledging her ear studs. She also narrated the incident as spoken to by PW1. She stated that she saw the accused coming out from the kitchen of the deceased after seeing the fire. 11. PW3 is Francis who is also a neighbour. He also knows the accused and deceased Lissy. He deposed that after 10 p.m on 17/4/2009, Lissy suffered burn injuries. The immediate neighbour called him. When they went to Lissy's house, they heard Lissy groaning. It was seen that there was smell of kerosene and he was informed that the accused ran away. He asked people in the locality not to enter until the police comes to the scene. After the police had come, she was taken to the hospital and on the way, she was mentioning that Manoj had lit the fire on her. She was Crl.Appeal No.1407/2012 -:6:- initially taken to Dharmagiri hospital and thereafter she was taken to Kothamangalam Government Hospital and thereafter to Mar Baselious Medical Mission Hospital. He has also signed Ext.P1 the inquest report. 12. PW4 is also a neighbour. He also deposed that after the police had come, they had gone to Lissy's house. They saw Lissy lying in the kitchen burned. Thereafter she was taken to the hospital. He also deposed that he saw the accused running away by the side of his brother's house. 13. PW5 is the son of PW2. He also knows the accused as a person who frequently visits Lissy. PW1 came to their house by 10-10.30 p.m. on 17/4/2009 and told that there was some fire and smoke from the house of deceased. People in the locality assembled. Francis called the police. After the police had come, all of them went to the kitchen of Lissy and saw her fully burned. She was taken in a jute sheet and thereafter to the hospital. While going to the hospital, she was conscious. On the way she said that she requires water. Water was given. Then they asked what happened. Then she informed them that Manoj had done this. He also deposed that at the time when they saw fire in the house of Crl.Appeal No.1407/2012 -:7:- Lissy, they saw accused running away through the kitchen door. He also stated that there was usual quarrel between Lissy and Manoj whenever he comes. 14. PW6 is the driver of vehicle in which the deceased was taken to the hospital. It was about 11 p.m. He deposed that Johny, Francis, Jiby and Joby had carried Lissy in a jute sheet and was taken to the hospital. On the way, she asked for water. Vehicle was stopped and she was given water. When they asked what happened, she told that Manoj had poured kerosene and lit fire on her. There was no Doctor in the Pothanikkad Government Hospital. Therefore, they have taken her to Kothamangalam Government Hospital. They informed that she need not be admitted there. Thereafter, she was taken to Baselious Hospital. They also did not treat her. Accordingly, she was taken to Kolencherry Medical Mission Hospital. She was admitted there. Next day, she died. 15. PW7 is the witness to Ext.P2 scene mahazar. He also identified the objects which were taken from the scene as MO1 to MO9. He is also witness to the inquest report Ext.P1. 16. PW8 is the Village Officer who prepared the site plan Crl.Appeal No.1407/2012 -:8:- Ext.P3. 17. PW9 is Dr.P.Rema who conducted postmortem in the body of deceased. The ante mortem injuries has been stated as under:- _“Dermoepidermanal burns involving both sides of head, face including ears, whole of trunk both upper limbs and lower limbs sparing lower third of legs and feet. Opinion as to cause of death.”_ Ext.P4 is the certificate. She further opined that the injuries noted on the body were independently sufficient to cause death. It could be caused by pouring kerosene and burning. In re examination she stated that smell of kerosene need not be there after two days of burning and it is not necessary that smell of kerosene should persist on the body. In exposed body, the smell can disappear with length of time. 18. PW10 was the Assistant Sub Inspector of Police, Pothanikkad Police station. He stated that, on 17/4/2009, he was in charge of General duty. He received information at 11.45 p.m about a lady of 4[th] Block having suffered burn injuries and that they could hear her cry. He was also informed that unless the police come, they will not go into the house. Accordingly, he had Crl.Appeal No.1407/2012 -:9:- gone to the scene along with the police having night patrol. The house of the deceased was on a higher level from the road. He went to the house and saw a lady lying in the kitchen fully burned. She was crying for help. Immediately, a jute sheet was taken and she was laid on it and in a Maruti Omni, along with the people in the locality she was taken to the hospital. She was saying that Manoj had poured kerosene on her on her way down. 19. PW11 was the Judicial First Class Magistrate of Muvattupuzha. He deposed that he received a request from Sub Inspector of police, Pothanikad to record a statement of one Lissy undergoing treatment at Kolenchery Medical College. He went to the hospital on 18/4/2009 at 10.30 a.m. He saw the patient and recorded the statement given by her. It was duly certified by Dr.Maneesh Kumar that the patient was conscious and oriented and was capable of giving statement. Dying declaration is stated at Ext.P5. Patient said that her husband Manoj had poured kerosene and lit the fire. He further deposed that the patient started vomiting after giving the statement and was struggling very hard to take breath. Therefore he could not obtain signature or thumb impression in the statement. Crl.Appeal No.1407/2012 -:10:- 20. PW12 is Dr.Maneesh Kumar. He had deposed that Lissy Varghese was brought to the hospital on 18/4/2009 at 2.21 a.m. At the relevant time, he was working as Assistant Professor, General Surgery in the MOSC Medical College hospital, Kolenchery. She was brought with the history of burns. He attended the patient at 10.38 am on 18/4/2009. He certified to the Magistrate that the patient was conscious, oriented in time, place and person and was capable of giving a statement. Ext.P5 (a) is the certificate. The patient was found to have sustained 99% burns on the total body surface area. He also stated that Dr.George Joseph attended the patient at the casualty. He further deposed that, on arrival, the history given to him is that she did it by herself. She had stated that in the casualty. He was recalled and examined. He proved Ext.P14 case sheet in which it is recorded that the injuries could be caused by pouring kerosene and fire. 21. PW13 was the Sub Inspector of Police, Pothanikkad Police Station on 18/4/2009. On getting information that the victim was taken to Medical Mission hospital, Kolencherry, he went to the hospital and on enquiry, it was understood that she Crl.Appeal No.1407/2012 -:11:- was in the Intensive Care Unit. He submitted an application to the Judicial First Class Magistrate to record the dying declaration. He also took the statement of Lissy with the permission of the Doctor and Crime No.221/2009 was registered u/s 307 IPC. Ext.P7 is the FIR. On account of the burn injuries, she was unable to either sign or provide thumb impression, Ext.P6 is the application given to the Magistrate for obtaining the dying declaration. Further investigation was done by the Circle Inspector of police. 22. PW14 is the Circle Inspector of Police who took over the investigation of the crime on 18/4/2009. After the death of the deceased, the report was filed to alter the offence to S.302 I.P.C. Ext.P2 is the said report. 23. PW15 deposed that he had arrested the accused on 9/6/2009 in front of Kolenchery Hospital. 24. PW16 has also conducted investigation and filed final report. The FSL report is marked as Ext.P17. 25. DW1 is Dr.Sreenivasan who was the Casualty Medical Officer in MCH Kolenchery. He identifies Ext.D3 which is a certificate issued by Dr.George Varghese. He had also issued a treatment certificate of Lissy dated 6/6/2009 signed by Dr.George Crl.Appeal No.1407/2012 -:12:- Varghese which is marked as Ext.D4. The wound certificate of the accused is marked as Ext.D5. It was also issued by Dr.George Varghese who is now abroad. In Ext.D4 certificate, it is recorded that the incident happened as a suicidal attempt. 26. DW2 is Thankamma, wife of the accused. They have two children. On 17/4/2009 by around 8 and 9.00 p.m, her husband received a call. She was informed that there was some problem in Lissy's house and that the accused will go and verify and he proceeded to the said house. There is no telephone in her house. He had gone in a motor bike of Pramod. After some time, Pramod came and informed that the accused was taken to hospital for burn injuries. She along with her daughter had gone to Pothanikkad Hospital. After half an hour, Pramod and accused came to the hospital. They were not admitted there. They proceeded to Government Hospital, Pothanikkad in an ambulance and from there to the Kolenchery Medical College hospital. He was under treatment for 53 days. According to her, her husband had no relationship whatsoever with Lissy and he is innocent. 27. DW3 is the neighbour of the accused. He deposed that on 17/4/2009, while accused was doing some work, a phone call Crl.Appeal No.1407/2012 -:13:- came. It was Lissy. She asked whether accused could be called. He gave the phone to the accused. Suddenly, he left by stating that Lissy called him. Later he knew that accused suffered burn injuries. 28. The main contention urged by learned counsel for appellant is based on the inconsistencies in the dying declaration of the deceased. It is pointed out that the said dying declaration cannot be believed. 29. PW3 has stated that while Lissy was taken to the hospital in the vehicle, she was conscious and she told them that the accused had put fire on her. PW5 Gibi Mathew stated that he has also accompanied Lissy to the hospital. On the way she became conscious. She asked for water. Water was given. When they asked what happened, she told that Manoj had put fire on her. PW6 was the driver of the vehicle in which Lissy was carried to the hospital. He stated that on the way Lissy asked for water. He stopped the vehicle and when asked to what had happened, she told that accused had poured kerosene and put her on fire. PW10 was Additional Sub Inspector during the relevant time. On getting information regarding the fire in Lissy's house, he had Crl.Appeal No.1407/2012 -:14:- gone to the said place along with the persons on patrol duty. When he arrived there, he saw Lissy fully burnt in her kitchen. They arranged a jute sheet and she was taken in the jute sheet to the vehicle. She was groaning at that time. Her house was situated above the road level and while she was taken towards the vehicle, she told that accused had poured kerosene on her. PW11 is the Judicial First Class Magistrate, Muvattupuzha who had recorded Ext.P5 dying declaration of the deceased. Ext.P5 was recorded at 10.30 am on 18/4/2009 and when asked as to what happened, she said that her husband had poured kerosene and lighted the fire which was at 10.00 p.m. on the previous day. He had also recorded the statement of the accused, who stated that Lissy herself had poured kerosene on her and lighted a match stick. He tried to put out the fire on account of which he suffered the injuries. 30. PW12 Dr.Maneesh Kumar in his deposition states that he had certified that she was fit to give a statement. However, there was little chance for recovery. Her condition was explained to her and she was conscious. She was on her sense. He further deposed that, on arrival, she had given a history that she did it by Crl.Appeal No.1407/2012 -:15:- herself. This fact is evidenced by Ext.D4 certificate. But, other than the oral version of PW12 during cross examination, there is nothing to indicate that he had recorded the same in any document. Here is an instance where all the witnesses who spoke to the deceased categorically stated that the accused had poured kerosene on her. Learned counsel points out that the version of PW10 cannot be believed as according to the other witnesses who had taken her to hospital, he mentioned the name of the accused only while they were travelling. But it seems that PW10 had heard her groaning stating that accused had poured kerosene. Her statement would have been more clear to PW3, PW5 and PW6 who had stated that she mentioned the name of accused as involved in pouring kerosene on her and lighting the fire when she was given water. There is no reason to disbelieve the version of the said witnesses. But, with reference to PW12's version, coupled with Ext.D4, there is a discrepancy in the version of the deceased. 31. Learned counsel for the appellant relied upon Division Bench judgment of this court in _**Narendra Singh Bisth**_ (supra) to contend that when the prosecution has totally contradictory versions with respect to the motive, provocation and genesis of Crl.Appeal No.1407/2012 -:16:- the incident and when there is material suppression of vital evidence, in the absence of credible and cogent evidence, accused cannot be convicted. There is no doubt regarding the above settled legal position. But the question is whether, in the facts of the present case, the judgment can have any application. 32. In the case on hand, the illicit relationship with the deceased and accused is spoken to by the neighbours. The fact that the accused ran to the house of the deceased on the fateful day is also spoken to by the defence witnesses. Therefore, the accused virtually admits his presence in the house of Lissy at the time when the fire occurred. His only contention is that she herself poured kerosene and had lighted the fire with a match stick. He tried to put out the fire and in the process, he also suffered severe burn injuries. In effect, he admits his presence in the house of the deceased at the relevant time. That there was usual quarrel between them when he comes is spoken to by the neighbours. It is in the said background that the dying declaration has to be considered. Therefore, the question would be, who had poured the kerosene and lighted the fire. 33. Learned counsel placed reliance upon the judgment in Crl.Appeal No.1407/2012 -:17:- _**Mohan Lal**_ (supra) to contend that when the in-law of the deceased are charged with the offence of murder and the relative of the deceased was present while she was giving the declaration, possibility of tutoring cannot be ruled out. In yet another judgment in _**Gopal**_ (supra), it was held that when there are multiple dying declarations and several discrepancies in the same, conviction cannot be based purely on dying declaration. Referring to the judgment in _**Kundula Bala Subrahmanyan v. State of A.P.,**_ [(1993) 2 SCC 684], it was held that it is not the plurality of the dying declarations but the reliability thereof that has weight to the prosecution case. If the dying declaration is found to be voluntarily, reliable and made in a fit mental condition, it can be relied upon without any corroboration. In a three Judge bench judgment in _**Uka Ram**_ (supra), it was held that in a case where the prosecution had not proved beyond reasonable doubt that the dying declaration was true, voluntary and not made by extraneous consideration, and when it was known that the deceased was a mental patient, and the probability of committing suicide cannot be eliminated, and there exists a doubt about the mental condition of the deceased at the Crl.Appeal No.1407/2012 -:18:- time when she made dying declaration, benefit of doubt had to be given to the accused as dying declaration cannot be the sole evidence upon which the conviction is based. In _**Laxmi**_ (supra), the Apex Court observed that if the dying declaration suffers from any infirmities, Court can look for corroboration. 34. In the case on hand, as already indicated, oral testimony of PW3, PW5 and PW6, clearly indicates that she gave a statement that the accused had poured kerosene on her which is supported by the oral testimony of PW10 and PW11. Further, the Sub Inspector of Police, PW13 when questioned her at the Kolenchery Medical College, had taken a statement from the deceased based on which Ext.P7 FIR was registered. In Ext.P7, he had recorded that she could not sign or put her thumb impression in her statement, but he had recorded that her husband Manoj had poured kerosene and lit fire on her. Of course, there is an overwriting including the name of Manoj in Ext.P7. But it is only a natural incorporation and nothing will turn out from the same. 35. What is to be considered is regarding the veracity of Exts.D3 and D4 and the evidence tendered by PW12 from which the defence contends that there is discrepancy in the dying Crl.Appeal No.1407/2012 -:19:- declaration. Ext.D3 is the wound certificate issued by Medical College Hospital, Kolencherry where the history and alleged cause of injury of the victim is stated to be “suicide attempt after pouring kerosene all over the body at around 8 pm on 17/4/2009 at home, Kadavoor.” The Doctor had examined the patient at 1.50 am on 18/4/2009. Ext.D4 is the treatment certificate issued by Dr.George Varghese, Chief Medical Officer in charge of Medical College hospital, Kolencherry. The certificate is issued on 6/6/2009 purportedly based on Ext.D3. It is based on Exts.D3 and D4 that PW12 has given evidence stating that the initial response of the victim was an attempt to commit suicide. The Court below having considered the aforesaid contention had opined that when the Magistrate PW11 has taken the statement of the deceased on 18/4/2009 at 10.30 a.m, PW12 himself had certified that the patient was conscious and oriented and was capable of giving the statement. Evidence of PW11 would show that Ext.P5 statement was given by the deceased without any compulsion. She knew that she was in her death bed and immediately after giving a statement that her husband Manoj had poured kerosene and lit fire, she started vomiting and was struggling very hard to take Crl.Appeal No.1407/2012 -:20:- breath. 36. Apparently PW12's evidence was based on Exts.D3 and D4. Ext.D3 was prepared by Dr.George Varghese and Ext.D4 was also issued by him. PW12 states that the victim was brought to the hospital on 18/4/2009 at 2.21 a.m. whereas Dr.George Varghese had seen the patient at 1.50 a.m. Nowhere in Ext.D3 or Ext.D4 has it been stated that it was the version of the victim. It is stated that the victim was brought by one Antony Varghese who is not examined before Court. Therefore, nobody knows as to who had given the cause of accident to PW12. In the above circumstances, we do not think that Exts.D3, D4 and the deposition of PW12 is sufficient to discredit the evidence of the prosecution witnesses with reference to the dying declaration of the deceased. We do not think that the materials placed on record by the prosecution has to be viewed with any doubt. 37. On an overall consideration of the facts arising in the present case, we do not think that the dying declarations which had been relied upon by the prosecution suffers from any infirmity at all. Only in a case where any doubt is expressed about the veracity of the dying declaration that corroboration is required in Crl.Appeal No.1407/2012 -:21:- the case. This is an instance where though she was suffering from 99% burns, she was capable of giving a declaration, which was recorded by the Magistrate and she had also stated about the same to the other witnesses, which has already been narrated as stated above. Under such circumstances, we do not think that there is any infirmity in the finding of the Court below by which the accused had been convicted. No grounds are made out for interference and the appeal is dismissed. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- ## **P.SOMARAJAN, JUDGE** Rp //True Copy// PS to Judge