Rajan 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. 634 of 2011 (D) --------------------------** **AGAINST THE JUDGMENT IN SC 429/2007 of ADDL.SESSIONS COURT (ADHOC)II, ERNAKULAM DATED 08-03-2011** **CP 24/2007 of J.M.F.C.-I, CRIME NO.383/2004 OF CHENGAMANAD POLICE STATION.** **APPELLANT/ACCUSED:** **--------------------** **RAJAN, S/O KUMARAN, KUNDAMANAPPARAMBIL HOUSE, CHUNDATHURUTHU,, POIKKATTUSSERY, NEDUMBASSERY.** **BY ADVS.SRI.P.VIJAYA BHANU (SR.) SMT.P.MAYA SRI.VIPIN NARAYAN** **RESPONDENT/COMPLAINANT: --------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY ADV. SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.11.2017, THE COURT ON 20.12.2017 DELIVERED THE FOLLOWING:** ## **A.M.SHAFFIQUE & P.SOMARAJAN, JJ** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A. No. 634 of 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of December, 2017 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## **SHAFFIQUE, J.** The accused in S.C.No. 429 of 2007 of the Additional Session Judge (adhoc-II), Ernakulam is the appellant. He challenges the judgment dated 8.3.2011, by which he was convicted for offences punishable under Section 452 and 302 of the IPC. He was sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- in default of which to undergo simple imprisonment for 3 months under Section 302 of the IPC. He is also sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs.2000/- and in default to undergo simple imprisonment for one month under Section 452 of the IPC. 2. A lady by name Usha was brought to the Medical Trust Hospital, Ernakulam with serious burn injuries. The incident happened on 31.8.2004. Initially she gave a statement to the police stating that it was an accidental fire. Subsequently, she gave another statement stating that the fire was caused by the accused. She succumbed to the injuries in Crl.A. No. 634 of 2011 -2- the hospital itself on 8.9.2004 at 4 am. 3. According to the prosecution, the accused was having a relationship with the aforesaid lady (the deceased). He had some doubt that she was entertaining other persons as well. Accused visited her house on 31.8.2004 at 9 p.m. Though he knocked at the door, she did not open the door. He therefore trespassed into the house and demanded to have sexual intercourse. She did not accede to the demand. He therefore poured kerosene on her body and also the liquor which was in his possession. Thereafter, using a cigarette lamp he set fire on her by which she sustained serious injuries. 4. To prove the incident, the prosecution examined PW1 to PW18 and relied upon Exts.P1 to P21. MO1 to MO9 were the material objects which were produced and proved. 5. Learned Senior Counsel for the appellant argued that there is absolutely no evidence to connect the accused with the crime. It is argued that the deceased had given a statement to the Police initially, wherein she had specifically stated that the injury was caused when kerosene spilled over to her skirt, while Crl.A. No. 634 of 2011 -3- she was pouring kerosene to the stove and caught fire from the stove. Initially she was taken to the Little Flower Hospital Angamaly. There also the alleged cause of injury was stated to be as 'burn from kerosene stove'. She was thereafter taken to Medical Trust Hospital for expert treatment. There also it was mentioned that the cause of injury was due to burn from kerosene stove. Subsequently, evidence discloses that after an inspection being conducted by the Police at the residence of the deceased, at the instance of PW1, brother of deceased, she had given a different version to the Police implicating the accused, that he had poured kerosene and alcohol on her and ignited her with a cigarette lamp. Further PW1 appears to have given a complaint to the Superintendent of Police, which is not forthcoming and no investigation is seen conducted pursuant to such a complaint. It is argued that there is no eye witness to the crime and the prosecution relied upon the circumstantial evidence and the so-called dying declaration of the deceased. The circumstantial evidence has to be conclusively proved and the dying declaration cannot be taken as substantive proof, especially Crl.A. No. 634 of 2011 -4- in the light of conflicting statements given by the deceased to the police. There is also no proof to indicate that the accused was present in the house of the deceased at the time of the so called fire and other than the oral testimony of PW11 who deposed that the accused has signed Ext.P11, there is no material to connect the accused with the alleged crime. The scientific evidence, namely the comparison of finger prints though an incriminating evidence, has not been asked to the accused during the section 313 questioning. 6. On the other hand, learned Public Prosecutor supported the judgment of the court below and contended that the initial statement which was given to the Police on 1.9.2005, Ext.P11, regarding the cause of injury, was at the instance of the accused himself, which is borne out from the statement given to PW14 as per Ext.P14 on 4.9.2004 at 2.30 p.m. Further, the presence of the accused in the scene of crime is proved by the scientific evidence, especially the evidence of PW17 who had collected the finger prints of the accused from the residence of the deceased. It is also argued that the accused himself had taken the deceased Crl.A. No. 634 of 2011 -5- to the Little Flower, Hospital and thereafter to the Medical Trust Hospital. The accused pleaded to the deceased, not to implicate him in the offence, which prompted her to give a statement to the Police initially, without implicating him. But it is argued that the presence of the accused at the Medical Trust Hospital is proved by PW11. It is therefore contended that the court below was justified in coming to a finding that the accused had committed the crime and therefore there is no reason to interfere in the same. 7. Before proceeding further it is better to analyse the evidence adduced by the prosecution. PW1 is the brother of the deceased Usha. He deposed that Usha's husband died 11 years before her death. She had two daughters and they were given in marriage. He received a call from Medical Trust Hospital, informing that his sister was admitted with burn injury. He received the call on the next day of incident. He saw her at 4 pm and asked her what happened. Initially she said that it was an accident from stove. Some other bystanders of patients told him that there was a person who claimed to be her husband and the Crl.A. No. 634 of 2011 -6- police had taken her statement. Next day she told him that Rajan had poured kerosene and set fire on her. She told him that on the day when the incident happened, at night, the accused came to her door and started knocking. She did not open the door. He threatened that he will break open the door or enter the house after removing the roof tiles. She got afraid and opened the door. The accused entered the room. He had with him a bottle of liquor. He drank some liquor and she was asked to drink liquor. He asked her to have sexual intercourse with him. She opposed and asked him to go out. It was at about 8.30 p.m. In order to threaten the accused, she poured kerosene over her body. Accused did not go. When she removed her nighty which was soaked in kerosene, the accused caught hold of her brassiere and its strap broke. He poured liquor on her body and lighted her skirt with cigarette lamp and she suffered burn injuries. The accused had taken her to a hospital at Athani and then to Little Flower Hospital, Angamaly. He told her that he will take care of her by spending what ever amount, even if it involves lakhs of rupees. Thereafter she was taken to the Crl.A. No. 634 of 2011 -7- Medical Trust Hospital. Accused offered to take care of her and therefore she had given a different statement. He had given a complaint to the Police. Thereafter, the Police had taken another statement. He said that he could identify her signature. He also showed the Police, the place where the incident happened. Police recovered various items namely, the glass, strap of brassiere, hook, the kerosene can, nighty, portion of towel and cloth which were burned, cigarette lamp. MO1 is the plastic can, MO2 series are the two glasses, MO3 is the strap of brassiere, MO4 is the white paper used for covering the liquor bottle, MO5 series are the towel and cloth partially burned. The liquor bottle is MO6, cigarette lighter is MO7, MO8 is the nighty and MO9 is the brassiere. She died at 4 a.m on 8.9.2004, that is on the 9[th] day of the incident. In cross examination he deposed that he did not know the accused earlier. When he reached the hospital there was nobody on her side. While she was in hospital he used to attend her. On the previous day of her death, when the Magistrate came to take her statement she was unable to speak. She could speak only until 7[th] morning. He gave a complaint to Crl.A. No. 634 of 2011 -8- the Superintendent of Police on third. His sister had informed him about the actual situation on 2[nd] at about 5 p.m. The police had taken her statement even before he reached there. On knowing about the actual situation, on 3[rd] morning itself, he had gone to Chengamanad Police Station. A Police Constable came with him. The police had taken her statement and it was signed. The police came on 4[th] and 5[th] . Before her death he saw the accused at Chengamanad Police Station, when he went there to give the complaint. Thereafter, he saw the accused before court. He had also shown the Police the place where the incident happened. However, he does not remember the date. 8. PW2 has turned hostile to the prosecution. In cross examination, he stated that he had taken a lady who suffered burn injuries to Athani hospital. Another lady and a male person also was with them, However, he could not identify them. From Athani Hospital she was taken to Little Flower hospital at Angamaly. The Police enquried about the incident. He denied having given the statements to the Police. PW3 deposed that he was driving an autorickshaw bearing No.KL-7-N 6253. On Crl.A. No. 634 of 2011 -9- 31.8.2004 at 11 pm he had taken some persons who had burn injuries from a place near Kurumassery block. The auto was called from Athani. Initially they were taken to Athani hospital and thereafter to LF Angamaly. There were two males and one female. He also has turned hostile. 9. PW4 has attested the inquest report. PW5 is the witness to Exts.P2 and P3 mahazar. By Ext.P2 the Scientific Assistant had collected certain items from scene of occurrence. PW6 is an attestor to Ext.P4 and P5 mahazar by which the hair, blood samples and dresses of the accused were seized by the police. 10. PW7 is Dr.P.J. Thomas who was the Chief Medical Officer in Little Flower Hospital, Angamaly. He had examined the deceased at 12.15 am and had issued Ext.P6 certificate. In Ext.P6 it is noted that the burn area in both upper and lower limbs, posterior to anterior chest, lower abdomen and back. The total body surface area burned comes to 80%. She was referred for expert evaluation. The alleged cause was "burn from kerosene stove". 11. PW8, Dr.Harikumar, HOD, Emergencies, Medical Trust Crl.A. No. 634 of 2011 -10- Hospital, Ernakulam. He deposed that he had examined the deceased and had issued Ext.P7 certificate. He had recorded that there was smell of kerosene. She had deep burns and lumps on the face, neck, chest, abdomen, thigh, buttocks back and upper limbs. He also deposed that she was brought by a person who claimed to be her husband. He had not given any details. The alleged cause according to him which was recorded was “ØíxìÕßW ÈßKᢠÎæHH æÄùߺîá, ÉÞÕÞ¿ÏíAí Äà É߿ߺîá, æºBÎÈÞ¿í Õºîí..” He also stated that the date of occurrence is 31.8.2004 and not 31.9.2004, which is a mistake. 12. PW9 is Abdul Rehiman, who was the Chief Medical Officer, Lakshmi Hospital Perumbavoor. He has examined the accused on 6.9.2004 and has issued Ext.P8 potency certificate. During his examination he found that he has 8% burns on right hand to elbow, but the burns were superficial. Ext.P9 is the certificate. 13. PW10 is the Village assistant who had prepared Ext.P10 site plan. 14. PW11 was the Head Constable of Chengamanad Police Crl.A. No. 634 of 2011 -11- Station on 1.9.2004. He deposed that he had taken the statement of deceased from the Medical Trust Hospital which was marked as Ext.P11. He stated that witness to Ext.P11 is the accused who was before court. In cross examination the suggestion was that the thumb impression seen in Ext.P11 is not that of the accused and that the accused was not present there. He does not remember whether any relatives were present at the time when he recorded the statement. 15. PW12 was the Circle Inspector of Police Vadakkekara from 20.11.2003 to 20.6.2005. He was holding the additional charge of the Circle Inspector of Police in respect of Chengamanad Police Station on 8.9.2004. He prepared Ext.P1 inquest report and recommended to include Section 302 IPC. His report is marked as Ext.P12. 16. PW13 has conducted postmortem of the deceased on 8.9.2004. Following were the ante mortem injuries: ## “Injuries (Antemortem) 1. Black scab formed healing superficial burns seen on right eye lids, tip of nose, right side of face and neck and jaw. Eye lashes of both eyes were singed. Crl.A. No. 634 of 2011 -12- 2. Infected deep burns on the front of neck, front of both shoulders both breasts with involvement of areola and nipple, whole of abdomen sparing umbilicus, back of chest, whole of right upper limb except axilla, front of elbow, fingers and palm. Whole of left upper limb except an area 25x5 cm on the outer aspect of upper arm, front of elbow, distal parts of fingers and palm, mons pubis, both buttocks, whole of right thigh, back of right knee, back of upper 2/3 of right leg. Whole of left thigh except front and outer aspect of lower 1/3[rd] and inner aspect of left knee.” As per his opinion the death was due to infective complication of burns. 17. PW14 was working as Assistant Sub Inspector of Chengamanad Police Station on 4.9.2004. He had recorded the statement of the deceased from Medical Trust hospital. He identified the statement as Ext.P14 which contains his signature as well as the signature and thumb impression of the deceased. In cross examination he stated that he had taken the statement as directed by the Circle Inspector of police. Statement was recorded in her room. Her relative was present in the room. but the statement was not recorded in their presence. She was lying down. She had initialed the pages where her name is written. Crl.A. No. 634 of 2011 -13- Initially she signed. Then she put her thump impression. He had taken the thumb impression and signature on account of nature of case. He did not request the Doctor to examine the physical condition of the patient. He does not know, who was Abhilash T Abraham as seen in Ext.P14. He deposed that Usha had put her signature in his presence. Suggestion was that he had never gone to Medical Trust Hospital and she had not given any such statement and it is not her signature. According to the defence it was prepared at the Police Station at the instance of Circle Inspector of police. 18. PW15 was the Circle Inspector of Police Chengamanad from 18.3.2006 to 21.5.2006. He had continued the investigation. On 12.4.2006 he had taken the finger print of the accused. It was sent for analysis. Thereafter detailed report was received. PW17 was working as a finger print expert during the relevant time. He had examined the finger prints on 5.9.2004. He got four chance prints from 2 glasses. Department photographer had taken photographs. On verifying and comparing the finger prints with the positive photographs it is Crl.A. No. 634 of 2011 -14- noticed that the finger prints were that of the accused. Ext.P16 is the report and Ext.P17 series are the photographs. PW18 was the Circle Inspector of Police during the relevant time. He had prepared Ext.P3 scene mahazar. He had also collected the material objects in terms of Ext.P2. He had completed the investigation. He also marked Ext.P21 FIR given by CW29. According to him, CW29 was laid up and his presence could not be procured. In cross examination he sated that a complaint was given to the Superintendent of Police, which was forwarded to the Circle Inspector of Police, Chengamanad, on the basis of which, the case was registered. Even before the complaint was given to the Superintendent of Police by PW1, he had given a complaint. He doesn't know whether any other complaint was given by PW1. On further cross examination he was asked whether Ext.P14 was fabricated, which he denied. 19. It is true that the deceased had given two statements to the Police, Ext.P11 statement on 1.9.2004 and Ext.P14 on 4.9.2004. PW11 has proved Ext.P11 and PW14 has proved Ext.P14. There is no reason to doubt the genuineness of the Crl.A. No. 634 of 2011 -15- statements recorded by PW11 or PW14, though such a contention has been raised by learned counsel for the appellant. These statements have been recorded by them in the presence of witnesses. In Ext.P11, the thumb impression of Usha is impressed and it is witnessed by none other than the accused. His thumb impression is also seen. One argument raised by the learned counsel is that the thump impression as seen in Ext.P11 was not verified or compared with the admitted thumb impression of the accused. But it is relevant to note that PW11 in box had clearly identified the accused as a person who was there at the relevant time. In fact, it could be seen from Ext.P11 that the statement was given in the presence of the accused himself. It was recorded that Usha, aged 44 is the wife of Rajan (accused) and their address is shown as Kallarackal House, Palaprassery Kara, Chengamanad Village. It is also stated that she is a coolie worker and her family consists of her husband and 2 girls, who were already given in marriage. Her husband Rajan is working as a driver in Sreekrishna tile company. Every day he used to come home. When she goes for work, she used to cook Crl.A. No. 634 of 2011 -16- the food for lunch also. By evening after she comes from work she cooks the food for dinner. It is further stated that on 31.8.2004 she did not go for work. She and her husband was in her house. By evening she wanted to boil milk. There was no kerosene in the stove. The stove was on a cement slab in the kitchen. She lighted the stove and thereafter poured kerosene. Suddenly fire lit up with a blast. A towel and her skirt got burnt. She tried to roll herself on the ground. On hearing this her husband came running. She suffered severe burn injuries. There was burn injury on her husband's hand also. Immediately her husband called an autorickshaw and she was taken to the hospital. She and her husband were living without any problem and were in love. He had not scolded or manhandled her in any manner. Apparently, the statement in Ext.P11 was not correct. The accused was not the husband of the deceased. They were not living together and therefore the statement regarding the presence of the accused on day to day basis and that he was the husband of the deceased itself is a false statement, either given by the accused or by the deceased at the instance of the Crl.A. No. 634 of 2011 -17- accused. The learned counsel for the appellant raised a contention that the deceased could not have affixed her thumb impression on account of the burns on her finger. But it could be seen from Ext.P7 wound certificate that she did not have any burns on her fingers. That apart, Ext.P13 postmortem certificate indicates that she did not have any burns on an area 25x5 cm on the outer aspect of upper arm. Burns of the left elbow was only on the distal parts of fingers. 20. Whereas, when we come to Ext.P14 statement recorded by PW14, there is reference to the earlier statement dated 1.9.2004 and her address is shown as Usha, wife of late Retnakaran, Kallarackal (H), Palaprassery Kara, Chengamanad Village. She stated that her husband died 12 years back. Thereafter, she was taking care of her two girl children. She was a coolie worker and both of her daughters were given in marriage and for the last 3 years she was living alone. She knew the accused for about four years. The accused has a wife and two boys. The accused had expressed his intention to marry the deceased and after getting acquainted with her he used to come Crl.A. No. 634 of 2011 -18- and reside with her once in a while and during those occasions they had sexual relationship. Taking note of the fact that the children may come to know about their relationship, she wanted to stop the relationship. None of her relatives knew the relationship she had with the accused. The accused expressed doubt regarding her association with another person at her work place. When his suspicion increased she tried to avoid him. Many a times he had come to her house and she did not open the door. On 31.8.2004 also he came and knocked at the door. She did not open the door. When he threatened that he will either break open the door or come inside by breaking the roof tiles, she opened the door. He wanted to have sex with her which she denied. Then he threatened her that he will not permit her to go with any other person and he wants her himself. Then she told him that she will die and she took the five litre green colour can having kerosene above her head. She had no intention to commit suicide. Her idea was to threaten the accused and to made him go out of the house. She also does not want their relationship affecting his family. Then immediately the accused Crl.A. No. 634 of 2011 -19- took the can in his hand and poured it over her body. She immediately removed the nighty she was wearing and started to wipe out the kerosene with a towel. Immediately he pulled at her brassiere and the strap broke. He opened the brandy bottle with him and consumed liquor without mixing water. He wanted her to drink it. His house warming was on 29.8.2004. She had not consumed liquor in her life. He poured liquor on her body. She never thought that he would light fire. He took the cigarette lamp from the house, caught hold of her and started to light fire. She pleaded with him not to do so. He lit the fire on her skirt. She cried aloud and fell down. The towel on her hand also caught fire. She became unconscious. When she regained consciousness she was in an autorickshaw. He told her that he will take care of her even if it costs him several lakhs of rupees. Initially she was taken to a hospital at Athani and thereafter to Little Flower hospital, Angamaly and from there in an ambulance to Palarivattom. She also stated that he had offered to take care of her and he was also present at the time she gave the 1[st] statement. Thereafter he had not come to visit her. There was Crl.A. No. 634 of 2011 -20- nobody to take care of her and none to help her. The accused had poured kerosene and brandy over her and had burned her. 21. It is apparent that in Ext.P14 statement the signature and thumb impression of deceased had been taken and the witness is one Gopalakrishnan, son of Subramaniam, Karaode House, Elamkkunnapuzha Village. One Abhilash T Abraham was the attestor to the thumb impression of the deceased. 22. The scientific evidence available in the case, especially the report of the finger print expert would prove that finger print in two glasses marked as 'KS6', when compared to the index finger print of the accused proves that those were identical. The glasses were taken from the house of the deceased which are marked as MO2 series by PW17. This apparently proves the presence of the accused in the house of the deceased. At this juncture it will be worthwhile to take note of the statement given by the accused while questioned under Section 313 Cr.P.C. When he was asked whether there is anything else to state, his answer was that the deceased was residing 150 metres away from his house. On 1.9.2004 he had his house warming ceremony. He Crl.A. No. 634 of 2011 -21- along with his wife had gone to the house of the deceased to invite her. She gave them food. Next day he understood that she was in the hospital. On the date of his house warming, he fell down and suffered injuries on his hands and legs. He could not go to hospital. Chengamanad Police came and took him to the police station from his house and he was made an accused. Learned Public Prosecutor further contended that the scientific experts had found a few strands of hairs from the bed room of the deceased which belongs to the accused. 23. Even going by the statement of the deceased, either Ext.P11 or Ext.P14, the accused was a common visitor at her residence and they had sexual relationship. Therefore his presence in her house as borne out by the finger prints or hair strands by itself, cannot be a reason to implicate him into the crime. 24. But it is relevant to note that the accused also suffered burn injuries. Evidence of PW9 and Ext.P9 certificate would show that he had 8% burns on the right hand to elbow. The statement of the deceased, both in Ext.P11 and Ext.P14 contains the fact Crl.A. No. 634 of 2011 -22- that the accused was present at the time when she suffered burn injuries. There is no reason to disbelieve the said version. 25. When the presence of the accused is clear from the aforesaid evidence, then the only question is how she suffered the burn injuries. In Ext.P11 she states that it was an accident, whereas in Ext.P14 she says that she threatened the accused that she will commit suicide. The accused took the can of kerosene from her and poured it on her body. She removed her nighty immediately and tried to wipe off kerosene from her body the accused pulled her brassiere strap and broke it. He drank some brandy and asked her to drink brandy. He poured the liquor on her body. He took the cigarette lamp and threatened her that he will light fire. She repeatedly asked him not to do so but he lit the fire. PW1 while giving evidence stated that Usha told him that she herself had poured kerosene on her body. Still the accused did not go. She removed the nighty which was soaked with kerosene, the accused pulled on her brassiere and its strap broke. Accused poured kerosene on her body and lighted the lamp. There is discrepancies as to who had poured kerosene. Crl.A. No. 634 of 2011 -23- PW1's version is that Usha had stated that she herself had poured kerosene, whereas in her statement Ext.P14, the deceased states that the kerosene was poured by the accused. As far as PW1 is concerned, his evidence is hearsay, whereas the statement given by the deceased was recorded by PW14, duly attested by her, which has to be given more primacy, than the hearsay evidence of PW1. 26. Learned Public Prosecutor submitted that despite the fact as to who had poured kerosene the question is, who had lighted fire. Merely for the reason that A or B had poured kerosene on a person by itself may not be an offence. Only when it is lighted by a source of fire and it burns the consequence will follow and it becomes an offence. The deceased suffered burn injuries because the accused had set fire to her body which was soaked in kerosene and alcohol. In Ext.P14 and in the evidence of PW1 it is stated that the deceased removed her nighty and she was wiping away the kerosene from her body, which means that she had no intention to burn herself. The fact that only the accused and the deceased were in the house is evidenced from Crl.A. No. 634 of 2011 -24- the factual circumstances mentioned above. Who had lighted the fire is the question or was it an accident as stated in Ext.P11 by the accused. 27. Yet another argument by the counsel for appellant is with reference to the fact that the nighty though recovered as MO8 did not contain any traces of kerosene. In her statement Ext.P14 she states that the accused poured kerosene on her while she was wearing her nighty. She further states that she removed her nighty which was soaked in kerosene she takes a towel and was wiping off the kerosene. He again poured liquor on her body and thereafter lit fire. Ext.P2 is the seizure mahazar which indicates that that 5 items were taken. (1) Hair samples from bed room. (2) Hair samples from the western room. (3) Remnants of charred materials taken from the western room. (4) Fuel sample taken from the western room. (5) Cigarette lamp taken from the western room. Ext.P3 is the scene mahazar which indicates that the incident took place in the hall of the building and they found burned cloth and portions of burned towel, a portion of cigarette lighter, burned hair etc. In the Crl.A. No. 634 of 2011 -25- kitchen there were other articles, gas stove, gas cylinder etc. It is also stated that there is a space for storing firewood and on the top of the firewood there was a nighty with the smell of kerosene. They found a brassiere with the strap torn off. The Scientific Assistant had taken portions of the burned cloth and the towel. The cigarette lighter was functional and it was seized. Other materials were also collected by the Scientific Assistant. It could therefore be seen that the nighty which she was wearing, which she had removed was having the smell of kerosene at the time of seizure. But it is true that, when the nighty, brassiere, burned cloth and other articles were forwarded for scientific analysis, the kerosene could not be detected in the nighty, whereas it was detected in the brassiere. It is possible that kerosene was not detected in the nighty, due to long lapse of time, when it was taken for inspection. 28. Yet another argument raised by the learned counsel was that there was no investigation into the complaint filed by PW1 to the Superintendent of Police. In fact PW1 had stated that he had initially gone to the police station and had given a complaint to Crl.A. No. 634 of 2011 -26- the Superintendent of Police. The Circle Inspector of Police who had conducted investigation had clearly stated that the complaint given to the Superintendent of Police was forwarded to the Circle Inspector of Police. At any rate it could be seen that the First Information Report was prepared based on Ext.P14 statement recorded by PW14. 29. It is trite law that each case has to be considered on its own facts. In the case on hand, the involvement of the accused with the crime is proved by the following facts: 1) The presence of the accused in the house of the deceased on the fateful day which is proved by Ext.P11 statement and Ext.P14 statement of the deceased. 2) That Ext.P11 statement was given at the instance of the accused is evident from Ext.P14 statement. 3) That the accused was present at the time when Ext.P11 statement was given is proved by his thumb impression as evident from Ext.P11, coupled with the oral testimony of PW11, who has identified the accused as Rajan who was a witness to Ext.P11. Crl.A. No. 634 of 2011 -27- 4) Presence of the accused in the hospital on the relevant date is also evident from the evidence of PW1 who deposed that there was a person along with the deceased who claimed to be the husband of the deceased. 5) That the accused suffered burn injuries as evident from Ext.P9 is also a fact which would prove his presence at the time when deceased got burn injuries. 6)The deceased had no intention to commit suicide which is evident from the fact that she had removed her nighty which she was wearing when the kerosene was poured on her and she was trying to wipe out the kerosene from her body with a towel which is recovered as half burnt. - 7) The cigarette lighter by which the fire was lit as stated in Ext.P14 was recovered from the house of deceased. - 8) In the seizure mahazar Police could not identify a kerosene stove which had been burned or charred. 9) The deceased suffered 80% burn injuries and was unable to speak when the Magistrate came to take her dying declaration. 10) The deceased was taken to a nearby Doctor at Athani then to Crl.A. No. 634 of 2011 -28- Little Flower Hospital and thereafter to the Medical Trust Hospital. 11) There is every possibility that the accused himself had taken the deceased to these hospitals which fact is evident from Ext.P11 and the deposition of PW11 who recorded his presence at the Medical Trust Hospital. 30. Therefore this is a case in which the accused and the deceased alone were in the house of deceased at the time when she suffered burn injuries. The accused has a duty to explain under what circumstances she suffered a burn injury. He completely denies his presence in the scene of occurrence at the relevant time. When his presence is proved by the circumstances, it is for him to explain as to how the fire was caused in the light of Section 106 of the Evidence Act. In **Gajanan Dashrath Kharate v. State of Maharashtra** _[2016_ _(4) SCC 604]_ , the Apex Court while placing reliance on the earlier judgments in _Trimukh Maroti Kirkan_ v. _State of Maharashtra [(2006) 10 SCC 681]_ and _State of Rajasthan_ v. _Parthu [(2007) 12 SCC 754]_ held at paragraphs 13 and 14 as under: Crl.A. No. 634 of 2011 -29- **“13.** As seen from the evidence, appellant Gajanan and his father Dashrath and mother Mankarnabai were living together. On 7-4-2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7-4-2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission Crl.A. No. 634 of 2011 -30- of the crime. **14.** In _Trimukh Maroti Kirkan_ v. _State of Maharashtra [(2006) 10 SCC 681]_ , it was held as under: (SCC pp. 694-95, para 22) “ _22_ . Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In _Nika_ _Ram_ v. _State of H.P.[(1972 2 SCC 80]_ it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with “khukhri” and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In _Ganeshlal_ v. _State of Maharashtra [(1992) 3 SCC 106]_ the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible Crl.A. No. 634 of 2011 -31- explanation for the cause of her death in his statement under Section 313 CrPC. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In _State of U.P._ v. _Ravindra Prakash Mittal_ [(1992) 3 SCC 300] the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In _State of T.N._ v. _Rajendran_ [(1999) 8 SCC 679] the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the Crl.A. No. 634 of 2011 -32- hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.” Same view was reiterated by this Court in _State of Rajasthan_ v. _Parthu [(2007) 12 SCC 754].”_ 31. Learned counsel for appellant relied upon **Tomaso Bruno and Another v. State of Uttar Pradesh** (2015) 7 SCC 178, wherein the Apex Court held that where a case is based on circumstantial evidence, proof of motive will be an important corroborative piece of evidence. If motive is indicated and proved, it strengthens the probability of the commission of the offence. Motive to commit the crime is evident from Ext.P14 statement itself, wherein she had clearly stated his possessiveness and the doubt whether she was having relationship with other persons. Crl.A. No. 634 of 2011 -33- 32. Yet another judgment relied upon is **Amol Singh v. State of Madhya Pradesh** (2008) 5 SCC 468. In that case the Apex Court was considering the evidentiary value of dying declaration under Section 32 (1) of the Indian Evidence Act, especially with reference to inconsistencies and discrepancies of the last dying declaration. It was held by the Apex Court that if the dying declaration is voluntary and reliable and given in fit mental condition, it can be relied upon without any corroboration. However if the statement of the deceased had several discrepancies in the dying declaration and if there are more than one dying declaration, it should be consistent. If there is inconsistency the court should consider the nature and find out whether they are material or not. 33. In the case on hand Ext.P11 was the statement given by the deceased while in hospital where she did not implicate the accused. According to her, it was only an accidental fire. But thereafter when she found that the accused is not taking care of her, she had given a further statement, Ext.P14, explaining under what circumstances she had given the earlier statement. When Crl.A. No. 634 of 2011 -34- we look at the possibility that had arisen in the case and the evidence that has been adduced, it is rather clear that Ext.P11 statement was given in the presence of accused, which is evident from deposition of PW11 and the accused himself witnessed to Ext.P11. Therefore despite the inconsistency or discrepancy pointed out in Ext.P11 when considered in the light of all attending circumstances, tend this court to believe the statement of deceased proved as Ext.P14. 34. Learned counsel for the appellant placed reliance upon the following judgments in order to substantiate that the incriminating evidence of the hand writing expert was not put to him during section 313 Cr.P.C. questioning. In **Latu Mahto and Another v. State of Bihar** (2008) 8 SCC 395, Apex Court after referring to a three Judge bench judgment in **Hate Singh Bhagat Singh v. State of Madhya Bharat (** AIR 1953 SC 468) held that the objective of section 313 is intended to benefit the accused and is not intended to nail him any position, but to comply with the most salutary principle of natural justice enshrined in the maxim _audi alterm partem_ . If the court fails to Crl.A. No. 634 of 2011 -35- put the required question under clause (b) of Section 313 (1) it will result in a handicap to the accused and he can legitimately claim that no evidence without affording him the opportunity to explain, can be used against him. The principle is that the circumstances about with the accused was not asked to explain cannot be used against him. Similarly in **Shard v. State of Maharashtra** (AIR 1984 SC 1622), it was held that the circumstances which were not put to the appellant in his examination under Section 313 of the Cr.P.C have to be completely excluded from consideration. In **Prakash v. State of Karnataka** (2014) 12 SCC 133, Apex Court held that when the report of the Serologist was not put to the appellant when he was examined under Section 313 Cr.P.C., it is one thing to say that no prejudice was caused to the accused by not affording him to explain the serological report and quite another thing to say that the counsel in appeal should be given an opportunity to explain the report. It was held that conviction cannot be based on such material, despite the question whether they prejudice him or not. 35. Learned Public Prosecutor however placed reliance upon Crl.A. No. 634 of 2011 -36- judgment in **Nar Singh v. State of Haryana (** 2015) 1 SCC 496. In this case, the Court held that if there is non compliance of section 313 Cr.P.C. and still if the Appellate Court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide of the matter on merits which depends upon the facts and circumstances of each case. Yet another judgment relied upon is **Yuvaraj Ambar Mohite v. State of Maharashtra** 2006 (12) SCC 512, wherein also the Apex Court held that it may be true that the attention of the appellant had not been drawn to the contents of forensic report, but the same does not vitiate the judgment of conviction and sentence as the accused was not prejudiced thereby. Reference is also made to the judgment in **State (Delhi Administration) v. Dharampal** 2001 (10) SCC 372 and **State of Punjab v. Swaran Singh** 2005 (6) SCC 101. 36. The argument that the incriminating evidence of the finger print expert had not been put to the accused is correct. PW17 is the finger print expert who had produced Ext.P16 report. No question is being asked to the accused regarding Ext.P16 Crl.A. No. 634 of 2011 -37- report. The only question asked is, whether he had taken four chance finger prints and photograph relating to the same. But as we have already opined that the same has no relevance to the facts of the case, since the said finger prints in the glass by itself or the hair samples alone cannot prove the presence of the accused on the fateful date, since it is admitted by the deceased in her statements Ext.P11 and Ext.P14 that the accused used to visit her at her house occasionally and they were having a relationship. 37. **Sukumaran v. State of Kerala** (2004 (1) KLT 153) has been relied by the counsel for appellant to contend that the treatment given to the deceased was not forthcoming and therefore it could not be stated that the burns suffered by the deceased was sufficient to cause death. In the cited case a Division Bench of this court had after referring to various judgments of the Apex Court held that whether the injuries were sufficient in the ordinary course of nature to cause death has to be examined, not with reference to the date of death, but with reference to the date on which it was inflicted and when the Crl.A. No. 634 of 2011 -38- details regarding the treatment given to the deceased is not forthcoming it cannot be concluded that the death was due to other intervening factors which may accelerate the death. That was a case in which the death occurred 37 days after the incident and the Doctor who conducted postmortem did not reveal in his evidence that the injuries sustained by the victim was sufficient in the ordinary course to cause death. The Doctor deposed that there was infection on the wounds of the deceased. Further the Doctor who examined the deceased immediately after sustaining the injury did not specify about the degree of injuries, nor did he depose about the degree of burn injuries sustained. In the case on hand it is true that the case sheet was not produced. But the Doctor who examined the patient was examined before court. PW7 deposed that the total body surface area of 80% was injured. PW13 the Assistant Professor in Forensic Department opined that death was due to infective complications of burns. There was no cross examination. In a case of burn injury the cause of death may be due to various factors and one among the cause is the infection caused on account of the burn. In the case Crl.A. No. 634 of 2011 -39- on hand, the ante mortem injuries, injury no.2 would show that she had infected deep burns on the front of neck, front of both shoulders, both breast with involvement of areola and nipple, whole of abdomen sparing umbilicus, back of chest, whole of right upper limb except axilla, front of elbow, finger and palm. whole of left upper limb except an area of 25x5 cm on the outer aspect of upper arm, front of elbow, distal parts of fingers and palm, mons pubis, both buttocks, whole of right thigh, back of right knee, back of upper 2/3 of right leg, whole of leg thigh except front and outer aspect of lower 1/3[rd] and inner aspect of left knee. Further, she died on the 8[th] day of the incident. In **Sukumaran** (supra), it was seen that the accused poured acid on the body of the victim and she died after being hospitalised for 37 days. The court held that the accused is liable to be punished under part II of section 304 of the IPC. We don't think that the aforesaid judgment has any application to the facts of the present case. In this case kerosene was poured on whole body and she suffered 80% burns. It is quite usual that in cases where burn injuries are caused the intention is to cause death and nothing Crl.A. No. 634 of 2011 -40- else, and that too, when an inflammable substance like kerosene and alcohol is poured against a human being and fire is lit. In the light of aforesaid finding of ours, we do not think that there is any reason to interfere with the judgment of the court below. The appeal is therefore dismissed. Sd/- **A.M.SHAFFIQUE, JUDGE** **sd/-** **P.SOMARAJAN, JUDGE** kp