P.A. Roy @ Paulose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 2ND DAY OF MARCH 2016/12TH PHALGUNA, 1937 CRL.A.No. 2074 of 2011 (D) ---------------------------** **AGAINST THE JUDGMENT IN SC 40/2006 of ADDL. DISTRICT COURT (ADHOC), KALPETTA DATED 03-10-2011 CRIME NO. 98/2004 OF MANANTHAVADY POLICE STATION , WAYANAD** ## **APPELLANT/ACCUSED** **------------** **P.A.ROY @ PAULOSE AGED 49 YEARS, S/O ANTONY PUNNARKOTTU (H) KOLAYAD, KOZHIMOOLA KANOORE** **BY ADV. SRI.BLAZE K.JOSE** **RESPONDENT: --------------** **STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM REPRESENTING CIRCLE INSPECTOR OF POLICE MANANTHAVADY POLICE STATION, KALPETTA** **BY PUBLIC PROSECUTOR SMT.PRAICY JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **K.T.SANKARAN & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **Crl.Appeal No.2074 OF 2011** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[nd] day of March, 2016 ## **JUDGMENT** ## Jyothindranath, J. This appeal is filed by the accused in S.C.No.40/2006 on the file of the Court of Additional Sessions Judge (Adhoc) I, Kalpetta against the judgment of conviction and sentence dated 3.10.2011 made therein. 2. The prosecution case is that on 26.3.2004 at about 5 p.m., the accused/appellant forcibly administered poison to his wife Philomina and thereby she died while she was taken to the hospital at Mananthavady. Prosecution altogether examined 15 witnesses and marked 15 documents and also marked material objects MO 1 to MO9. After appreciating the evidence, the court below convicted the accused and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.60,000/- with default rigorous imprisonment for three months. Aggrieved by the above conviction and sentence, this appeal is preferred. Crl.Appeal No.2074/2011 2 3. When the appeal came up for hearing, the learned counsel for the appellant argued before us that here is a case where the prosecution put forward only circumstantial evidence. It is the submission that chain of circumstances put forward by the prosecution are not complete and inadequate to come to a conclusion that the accused committed the offence alleged against him. It is the further submission that even though the Doctor who conducted the postmortem gave evidence to the effect that the death is due to poisoning, there is no evidence to show that actually death was due to poisoning. No special characteristics or changes are noted by the Doctor to come to a conclusion that a particular poison has caused the death. Even in the postmortem certificate and in the evidence of PW14, the Doctor, it is categorically stated that the viscera was collected and sent for analysis. It can be seen that the said report is not produced before the court. Without a chemical analysis report, the Doctor now gave evidence to the effect that the death was due to poisoning. In this regard, the Honourable Supreme Court has again and again highlighted the requirement of analysis of viscera. The Crl.Appeal No.2074/2011 3 learned counsel for the appellant also brought to our notice the decision ## reported in **Joshinder Yadav v. State of Bihar ( 2014 KHC 4036)** . It is the submission that when the analysis report of viscera is not therein, it will be unsafe to come to a conclusion to the effect that the death is due to poisoning. When death is not proved to be due to poisoning, it can be seen that the so called evidence of the witnesses regarding the declaration of the deceased regarding the cause of death will also loose its significance i.e. the so called dying declaration will not have any effect when the prosecution failed to prove that the death is due to poisoning. It is the further submission of the learned counsel for the appellant before us that, in this case, the categoric stand of the appellant/accused is that PW2, PW3 and PW8 who deposed regarding the so called dying declarations were in enimical terms with the appellant. It is also submitted before us that it was not a bald suggestion made by the appellant. But there was admission in the evidence by PW2 and PW8 to the effect that they were not in good terms with the appellant. Their evidence is unbelievable. 4. It is also the submission that PW3 is none other than the Crl.Appeal No.2074/2011 4 daughter of PW2. Under such circumstances, it will be very unsafe to rely upon the so called evidence of the said witness also regarding the dying declaration. It is also submitted that even though PW10 also gave evidence to the effect that the deceased made a declaration that the appellant gave poison, it can be seen that, that evidence also will not inspire confidence. It will not go along with the evidence of the other witnesses. It is also submitted that the evidence of the witnesses are not actually corroborating, but contradictory and under such circumstances, the appellant is entitled for acquittal. 5. It is also submitted before us that even though PW1 got a case that the accused went to the house and threatened him, it can be seen that the time deposed to by the witness regarding this incident will not tally with the evidence of other witnesses and it can be further seen that it is nothing, but a falsehood. The learned counsel also submitted that even though the nearest house is that of PW1, the deceased is not going to the said house. PW1 is none other than the father of the deceased. But it is now claimed that the deceased went to the house of PW2. All these circumstances creates suspicion regarding their Crl.Appeal No.2074/2011 5 evidence and further it can be seen that it can be a case of suicide. If that is so, conviction entered upon the oral evidence of PW2, PW3, PW4, PW8 and PW10 may not be safe. The appellant is entitled for acquittal on the ground of benefit of doubt. 6. The learned Public Prosecutor submitted before us that here is a case where PW2, PW3, PW4, PW8 and PW10 deposed to regarding the dying declaration. It is the further submission that the Doctor who conducted the postmortem is examined as PW14. He marked Ext.P14 postmortem certificate. He categorically deposed before the court that death was due to poisoning. That aspect was not challenged in cross examination. When unchallenged evidence is therein, there is no reason not to rely upon the same. It is the further submission that, in this case, PW1 also gave evidence to the effect that the accused came to his house and threatened him. PW6 is the son of the sister of the deceased. As per his evidence, he is staying with PW1. Even though PW6 was declared as hostile, from the evidence of PW6, it can be seen that he also gave evidence to the effect that on the said date of incident, the accused came to his house and threatened Crl.Appeal No.2074/2011 6 PW1. From these evidences, it can be seen that the accused administered poison to the deceased and as a result, she died. 7. The evidence in this case is as follows : PW1 is the father of the deceased. His evidence is that deceased is his third daughter and appellant/accused was the husband of her deceased daughter. They were staying in a house constructed in a property given by him. His further evidence is that on the date of death of the deceased, at about 4 p.m., accused came to his house and said “ PhilominaæÏ Õß×¢ æµÞ¿áJí ÕàGßW æµÞKßGá.åÈßB æ{ æµÞÜïÞX ÕKÄÞÃí” and it is also the case of the witness that accused tried to assault him and as such he closed the door. His further evidence is that one Mohanan and Babukutty, who are his neighbours, came to his house and told him that Philomina is going to be taken to the hospital. PW2 is a neighbour of the deceased. She deposed that her house is about 20 metres away from the house of the deceased. Her further evidence is that Philomina came at about 5.30 p.m. in her house. She Crl.Appeal No.2074/2011 7 further deposed that “dÉÄß ¿ßÏÞøßÏíAíå Timet ®K Õß×¢ Äàxߺîá ®KᢠçÖ×¢ dÉÄß PhilominaÏáæ¿ ÉßÄÞÕßæÈ æµÞÜïÞÈÞÏß çÉÞÏß ®KᢠÉùEá.” She also deposed that thereafter she went to call the brother of the deceased, but not found. She met one Mohanan who is a neighbour as well as one Babukutty and informed them regarding the incident. The above said Babukutty, Mohanan and Thomas, the brother of the deceased and his wife Sali came to her house and from therein deceased was taken to hospital in a jeep. PW3 is the daughter of PW2. She is a teacher by profession. She was also present when the deceased came to her house. She also deposed that Philomina came and told her as well as her mother that “ dÉÄß ÌÜ¢ dÉçÏ޷ߺîí ¿ßµÞøßæÏ Õß×¢ Äàxߺîá” and she further deposed that on a querry of her mother deceased said that it was not possible to escape. PW4 is the brother of the deceased, who gave first information statement to the Police. He deposed before the court that one Mohanan and Babukutty came and informed him regarding the incident. As such Crl.Appeal No.2074/2011 8 he went to the house of Philomina. He along with others took Philomina to the hospital. He further deposed that he is the person who gave information to the Police. The First Information Statement was marked as Ext.P1. PW5 was declared as hostile. He is an attestor to the seizure mahazar of nighty worn by the deceased on the date of incident. PW6 is also declared as hostile. He is none other than the son of the father of the deceased. He deposed before the court that on the date of the incident at about 5.30 hours in the evening, accused came to the house of PW1 wherein he was staying and threatened. He further deposed that they closed the door due to fear. PW7 was declared hostile. He admitted the signature in Ext.P3. PW8 is the wife of PW4. She deposed before the court that one Mohanan and Babukutty came to their house and informed them regarding the incident. When she went to the house of PW2, Philomina told them that poison was administered by the accused. Her further evidence is that while the deceased was taking rice, forcibly poison was administered and water was given by the appellant. She also gave Crl.Appeal No.2074/2011 9 evidence to the effect that saline water was given to make her vomit and she vomited. PW9 is a witness to the inquest, which is marked as Ext.P6. PW10 deposed before the court that he was among the persons who took Philomina to the hospital. He further deposed that when he went to the house of PW2, a general statement was heard “ dÉÄß Õß×¢ Äàxߺîá ®Kíå PhilominaåæÉÞÄáÕÞÏß ÉùEá.” His further evidence is that while she said so, Mohanan was also present therein. PW11 is the Secretary of Edavaka Grama Panchayath, who produced and marked Ext.P9, the ownership certificate of the house wherein the deceased as well as the accused were staying. PW12 is the Circle Inspector who conducted the investigation in this case. He deposed before the court that he prepared the scene mahazar as well as seized the nighty worn by the deceased at the time of incident. Mos 1o 9 were marked. He further deposed before the court that when the accused was arrested and questioned, he gave statement to the effect that “ µcÄcJßÈí ©ÉçÏ޷ߺîíå timet ®K Crl.Appeal No.2074/2011 10 Õß×Õá¢å²øáåplastic ÉÞGÏᢠØÎàÉÎáUåÕÞÝçJÞGJßW ØâfߺîßGáIí.” and in the light of the said disclosure statement and as the accused led, they reached at a place near to the house and one plastic mug, plastic bucket and timet are recovered. The said poison is marked as MO9. He further deposed that the articles seized were forwarded to the court. PW13 deposed that he was working as Medical Officer, Forensic Medicine at Medical College Hospital, Kozhikode. He conducted the postmortem examination on the body of K.V.Philomina, 43 years involved in Crime No.98/2004 of Mananthavady police station. He marked the postmortem certificate as Ext.P14 before the court. He deposed that he found the following injuries on the body of the deceased : “1. Contusion 3 x 2.5 cms back of Rt. arm 5 cms. Above elbow. Contusion 1.5 x 1 cm. On the back of right elbow at its upper part. Crl.Appeal No.2074/2011 11 3. Contusion 1 x 1 cm. back of right arm 3 cms. above elbow. 4.Contusion 4 x 1.5 cms. On the outer aspect of right arm, its lower end at elbow. 5. Contusion 1.5 x 1 cm. on back of right upper arm, 15 cms. above elbow. 6. Contusion 5 x 1.5 cm. on the inner aspect of left arm 3 cms. above elbow. 7. Contusion 1 x .5 cm. on the inner aspect of left arm 8 cms. above elbow. 8. Contusion .5 x .5 cm. on inner aspect of left upper arm 6 cms. below arm pit. 9. Contusion 1.5 x 1 cm. on the inner aspect of left fore arm 4 cms. below the elbow. - 10.Contusion 2 x 1 cm. on the back and inner aspect of left forearm 7 cms. above wrist. 11.Contusion .5 x .5 cms. on the outer aspect of left elbow. 12. Contusion 3 x 1.5 cms. back of left thigh 7 cms. back of Crl.Appeal No.2074/2011 12 left thigh 7 cms. above knee. - 13.Contusion 2 x 2 cms. inner half of back of left thigh 7 cms. above knee. - 14.Contusion 2 x 2 cms. back of right thigh 3 cms. above knee. - 15.Patch subarachanoid hemorrhage 4 x 3 cms. seen on right frontal pole. PW13 further deposed that stomach contained 300 gms. half-full contained partially digested cooked rice a handfull of black particles having offensive insecticide like smell. He gave the opinion as to cause of death as death due to poisoning. He further deposed that viscera sent for chemical examination. As per Ext.P14, it can be further seen that he also noted the receipt number of parcel sent for chemical analysis as 879/04. PW14 is the Sub Inspector who registered the crime on the information received from PW4. It is marked as Ext.P1(a). PW15 is the Circle Inspector who concluded the investigation and filed the charge. He deposed before the court that the ownership Crl.Appeal No.2074/2011 13 certificate was collected by him as well as the chemical analysis report. The chemical analysis report is marked as Ext.P15. 8. In this case the postmortem certificate is marked as Ext.P14. In the postmortem certificate, the cause of death is written as “ postmortem findings were consistent with death due to poisoning.” The said postmortem certificate is marked before the court by PW13 who conducted the postmortem. The Doctor gave evidence to the effect that “ postmortem findings were consistent with death due to poisoning.”. 9. We have very carefully examined the cross examination. There is no challenge to the effect that death is not due to any poisoning. Thus, the evidence of PW13 in this regard is unchallenged and there is nothing wrong in accepting the evidence of PW13 in this regard. Surely, the defence counsel highlighted the decision reported in **Joshinder Yadav v. State of Bihar ( 2014 KHC 4036).** In the said decision, the Apex Court very strongly in paragraph 22 highlighted the earlier decision of the Apex Court in **Chhotan Sao and Another v.** 14 Crl.Appeal No.2074/2011 **State of Bihar ( 2013 (15) SCALE 338)** , wherein also the apex court expressed its anguish regarding the inadequacy of investigation, the failure to discharge the responsibility on the part of the public prosecutor and the Magistrate who took cognizance of the offence under Section 304 B. There also it can be seen that viscera report from the forensic lab was not placed before the court. After highlighting the said decision, the apex court wondered whether these lapses are the result of inadvertence or they are a calculated move to frustrate the prosecution. But the very same time, the honourable supreme court highlighted the fact that the courts prime duty is to find out the truth. It can be further seen that the supreme court, even though viscera reports were not therein, dismissed the appeal which was preferred by the accused therein. Thus, in this case it can be seen that viscera report is not therein. But surely the unchallenged evidence of PW13 who conducted the postmortem is on record. The postmortem certificate also shows that death was due to poisoning. When death is proved as due to poisoning, that fact need not be doubted. It can be treated as proved. Crl.Appeal No.2074/2011 15 10. The next question is whether it was a homicide or a suicide or whether an accidental intake of poison. The positive case of the prosecution is that the accused administered poison forcefully. The submission of the learned counsel is that the postmortem certificate will reveal that even though there are about 15 injuries, no injury can be seen on the facial area of the deceased. It is also the submission that it is not so easy to administer poison to a person having a height of about 162 cm. and weight of about 64 kg. A careful perusal of the postmortem certificate will reveal that there are about 14 external injuries. The Doctor categorically deposed that it cannot be self inflicted. Surely, the investigating agency got no explanation how those injuries are sustained to the deceased. The 15[th] injury is that “ patch subarachnoid haemorrhage 4 x 3 cm. seen on right frontal pole.” A subarachnoid haemorrhage will be even fatal. It may lower the level of consciousness. Sometimes it may cause unconsciousness. Surely, all these aspects are not brought on record by the prosecutor while examining PW13. The evidence of PW2, PW3, PW4, PW8 and PW10 regarding dying declaration of the deceased is before the court. Crl.Appeal No.2074/2011 16 11. We are analysing the possibility of administering the poison forcibly by the appellant as well as the evidence of these witnesses regarding the declaration by the deceased i.e. we approach the evidence in two different angles. One aspect is that whether the evidence of witness regarding the dying declaration is believable. If it is believable, the next aspect is that how far there is truth in the declaration made by the deceased. As already highlighted, there are injuries on the body of the deceased as evident from the postmortem certificate. There are consistent version by 5 persons regarding the dying declaration. PW2 and PW3 are neighbours. It came out in evidence that PW3 is a teacher by profession. No enimosity or any aspect brought out during cross examination to disbelieve the evidence of PW2. While the accused was questioned under Section 313 of Cr.P.C, he got a case that PW2, PW3 and PW8 are in inimical terms. Nothing brought out during cross examination to discredit the evidence of PW2 and PW3 as well as that of PW10. Surely, the evidence regarding dying declaration or the words uttered by the deceased to different persons may be different. But that alone will not be sufficient Crl.Appeal No.2074/2011 17 to disbelieve the words especially when the deceased was making the declaration at different point of time and nobody got a case that she once alone declared the same. Similarly, in this case PW1 is an aged man who is none other than the father of the deceased. According to him, he is staying in a house very near to the house of the deceased. PW6 is also staying therein. PW6, even though declared as hostile, deposed before the court that on the date of incident, the appellant came to the said house and threatened PW1. The evidence of PW1 is also to the effect that on that date the appellant/accused came and threatened him and told him that he had already murdered the deceased by giving poison and he came therein to murder him. 12. The argument of the defence counsel is that it cannot be taken as a confession. Surely, the same cannot be treated as a confession. It will come under the purview of Section 6 of the Evidence Act, res gestae. Illustration A of Section 6 of the Evidence Act will show that res gestae can be by the victim or the accused. Illustration A to Section C is relevant in this regard. Thus, evidence of PW6, even though turned hostile will corroborates the evidence of Crl.Appeal No.2074/2011 18 PW1. The evidence of PW5 corroborates the evidence of PW2, PW3, PW4, PW8 and PW10 regarding dying declaration. 13. It is already found that there was a dying declaration. The next aspect is that whether the said dying declaration can be true. It is already found that there was injuries on the body of the deceased. It is the case that while she was taking food, poison administered forcefully. Postmortem certificate shows that stomach was half full. The injuries are on the elbow area and thigh area. There is also a subarchnoid haemorrhage on the frontal area. On the back ground of the injuries, the declaration of the deceased as forceful administration of poison is believable. Thus, it can be seen that when the death is due to poisoning and dying declaration is therein by the deceased regarding the cause of death and when there is also confessional statement by the accused regarding the act he did, which is admissible by virtue of Section 6 of the Evidence Act also, it can be seen that the prosecution succeed in proving the guilt of the accused. Thus, what comes out is that there is nothing to interfere with the conviction and sentence entered into by Crl.Appeal No.2074/2011 19 the court below. There is no merit in the appeal. Hence the appeal is dismissed. ## **K.T.SANKARAN, JUDGE** **K.P.JYOTHINDRANATH, JUDGE** sv.