Sankaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY ,THE 04TH DAY OF JANUARY 2019 / 14TH POUSHA, 1940** **CRL.A.No. 850 of 2015** **AGAINST THE JUDGMENT IN SC 204/2014 of ADDITIONAL SESSIONS COURT - I, KALPETTA DATED 02-07-2015** **CRIME NO. 274/2012 OF Kambalakkad Police Station, Wayanad** ## **APPELLANT:** **SANKARAN, S/O.PULAYAN, C.NO.541/15, CENTRAL PRISON, KANNUR** **BY ADV. PREETHY R NAIR (STATE BRIEF)** **RESPONDENT:** **STATE OF KERALA (KAMBALAKKAD POLICE STATION CR.NO.274/12)** **BY SMT.S.AMBIKA DEVI, SPL PP FOR OFFENCES AGAINST WOMEN AND CHILDREN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.11.2018, THE COURT ON THE 04.01.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.850/15 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been preferred by the appellant challenging the verdict passed by the Additional Sessions Judge – I, Kalpetta in S.C. No. 204 of 2014 by which the appellant is found guilty for the offence under Section 302 of the Indian Penal Code, 1860 ( for short, 'IPC') and sentenced to undergo imprisonment for life and also to pay a fine of `25,000/- (Rupees Twenty Five Thousand only) in default of which to undergo rigorous imprisonment for one year for the said offence. 2. The prosecution case is that the appellant owing to his doubt about the chastity of his wife Bindu, on 20/08/2012, at about 1.00 a.m., poured kerosene on her body and set her ablaze due to which she sustained 78% burn injuries and she succumbed to her injuries on 24/08/2012 in the hospital. 3. Prosecution examined PWs 1 to 16 as witnesses, documents Exts. P1 to P18 were marked and MO1 to MO3 were identified. In the 313 Cr.P.C. examination, the appellant denied the prosecution case and pleaded innocence. Defence had not Crl.Appeal No.850/15 -:3:- adduced any evidence. 4. The learned counsel appearing for and on behalf of the appellant, Adv.Preethy R. Nair argued that the Court below erred in arriving at the conclusion that the appellant is guilty. Motive for the crime is not proved by the prosecution. There is no direct evidence in the case. Appellant was trying to save his wife from burns and during the process he also got burns. The dying declaration relied on by the prosecution is infirm as the deceased was not in a mental state to make a statement. Forensic evidence does not disclose presence of kerosene as alleged by the prosecution. The evidence of the relatives of deceased should not have been relied upon by the trial Court. The prosecution miserably failed to prove the chain of circumstance and hence the appellant may be acquitted extending benefit of doubt to him. She relied on the judgment of this Court in _**Narendra Singh Bisth v. State of Kerala**_ [2017(3) KHC 204 (DB)]. Paragraphs 10 and 11 reads thus:- _“10. From the above narrated aspects it is clear that the prosecution had totally contradictory versions with respect to the motive, the provocation and the genesis of the incident. There is also material suppression of_ Crl.Appeal No.850/15 -:4:- _the vital evidence in this regard. Smt. Jasmine, learned Public Prosecutor contended that, even without any proof regarding the aspect of motive or pre - meditation, the actual incident of pouring Kerosene by the appellant on the body of the deceased and litting him to fire, stands proved through Ext. P14, the dying declaration as well as through Ext. X1 (d), the history of the injury recorded in the Case Sheet by the Doctor who examined the deceased on the date of incident itself. It is settled that, when there is acceptable evidence regarding the incident itself, non - establishment of the motive is irrelevant. Therefore the question mooted for decision is as to whether the evidence adduced through Ext. P14 and Ext. X1(d) can be accepted as genuine and reliable. The statements made by the deceased with respect to the cause of his death assumes evidentiary value under S.32(1) of the Indian Evidence Act, 1872. The Court has to give more credence to such statements, despite non examination of the person who made the statement. S.32 put such statements on a different pedestal than the general category of hearsay evidence. It puts an exemption with respect to the acceptance of such evidence. While accepting such statement as genuine evidence, the Court should exercise more care and caution. The Court should bear in mind that there exists an impossibility to conduct test on the veracity of such statements on the touchstone of cross - examination. Therefore, the Courts have to adopt other methods in order to satisfy its judicial conscience, that the dying declaration contains nothing but proof alone._ Crl.Appeal No.850/15 -:5:- 11. _In a decision of the honourable Supreme Court in Dandu Lakshmi Reddy v. State of A. P., 1999 KHC 744 : AIR 1999 SC 3255 : 1999 (3) KLT SN 41 : 1999 (7) SCC 69 : 1999 CriLJ 4287 : 1999 AIR SCW 3235 : 1999 (4) Crimes 90 : JT 1999 (6) SC 166 : 1999 (5) SCALE 118 : 1999 SCC (Cri) 1176 : 1999 (7) Supreme 354, it is observed that, the first among such tests is to scrutinise whether there are inherent improbabilities in that version. The next test is whether there is any inherent contradiction therein. If the dying declaration does not stand scrutiny when tested on the touchstone of credence and corroboration, it will be unsafe to convict any person on the strength of such a fragile and rickety dying declaration. The honourable Apex Court in a subsequent decision in Sharda v. State of Rajastan, 2010 KHC 6066 : AIR 2010 SC 408 : 2010 (2) SCC 85 : 2010 (2) SCC (Cri) 980 : 2010 (1) UPLJ 31 : 2010 (85) AIC 80 : 2010 (2) KCCR 1098, observed that, it is indicative of the fact that a man who is on a death bed would not tell lie to falsely implicate an innocent person. This is the reason in law to accept the veractiy of such statement. It is for this reason that the requirements of oath and cross - examination are dispensed with. Besides, if the dying declaration is to be completely excluded in a given case, it may even amount to miscarriage of justice, as the victim alone being the eyewitness in a serious crime. The exclusion of such statement would leave the Court without a scrap of evidence in such situations. But the Court further observed that, it is to be kept in mind that the accused had no chance of cross - examination. Such a_ Crl.Appeal No.850/15 ## -:6:- _right of cross - examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the Court insists that the dying declaration should be such which inspires full confidence of the Court of its correctness.”_ 5. On the other hand, the learned Public Prosecutor argued that the prosecution proved the case beyond reasonable doubt and the trial Court is fully justified in finding the appellant guilty. There is evidence to show that the deceased was suffering at the hands of the appellant. On the date of incident also there was quarrel. The dying declaration of Bindu made to her own son and father inspires full confidence. That alone is sufficient to prove the guilt of the appellant. In this case, the ocular, medical, and forensic evidence unerringly points to the guilt of the appellant. The trial Court's judgment is just and sentence is proper and hence there is no need to disturb the same. 6. We heard both sides and perused the records. 7. Coming to the evidence, PW1 Bolli is father's sister of the deceased. She gave Ext.P1 F.I. Statement to police. She came to know about the incident from PW2 her brother, who is the father of the deceased. It is her version that the deceased told Crl.Appeal No.850/15 -:7:- her that the appellant had beaten her on the fateful day. Thereafter, Bindu did not speak. She turned hostile to the prosecution. 8. PW2 Noonjan is the father of the deceased. He was told by PW3, his grandson, about the incident. When he came to the spot, Bindu told him that she was set ablaze by the appellant after pouring kerosene. 9. PW3 Vinod is the son of the appellant and the deceased. At the time of incident, he was 16 years. It is his version that on hearing the screaming of his mother, he rushed to the spot where his mother was found with burn injuries. She told him that the appellant set her ablaze. 10. PW4 Babu is an attestor to Ext.P2 scene mahazar. 11. PW5 Balan is an attestor to Ext.P3 inquest report. 12. PW6 is the then Special Village Officer, Kaniyambetta who prepared Ext.P4 scene plan. 13. PW7 is the then Secretary of Kaniyambetta Panchayat. He issued Ext.P5 ownership certificate. 14. PW8 is the Scientific Assistant, Waynad District Police Department. He deposed that he collected materials from the Crl.Appeal No.850/15 -:8:- place of occurrence, packed them, labelled and handed them over to the investigating officer. Ext.P6 is the report. 15. PW9 is the photographer attached to DCRB, Waynadu. He took Ext.P7 series photographs. 16. PW10 is the Medical Officer, Casualty in District Hospital, Mananthavady. He examined Bindu and issued Ext.P8 wound certificate. According to him, she had wide spread burns of 78% on her body. 17. PW11 is the Medical Officer who examined the appellant and issued Ext.P9 certificate. According to him, the appellant was conscious and oriented. He had not noted any injuries on him. 18. PW12 is the then S.I. of Police, Kambalakkad. He recorded Ext.P1 F.I.S of PW1 and based on which registered Ext.P10 FIR. 19. PW13 is the then Circle Inspector of Police, Meenangadi. He conducted the investigation and laid chargesheet. He prepared Ext.P2 scene mahazar, seized MO1 to MO3, questioned witnesses and recorded their statements. Ext.P14 is the FSL report proved through him. Crl.Appeal No.850/15 -:9:- 20. PW14 is the then Assistant Professor and Deputy Police Surgeon, Department of Forensic Medicine, Kozhikode. He conducted post-mortem examination of the deceased and issued Ext.P15 post-mortem certificate. He opined that the deceased had died due to the burns. 21. PW15 is the then S.I. of Police, Kambalakkad who conducted inquest and prepared Ext.P3 inquest report. On 04/09/2012, he arrested the appellant. Ext.P16 is the arrest memo and Ext.P17 is the remand report. 22. PW16 is the Assistant Professor of Surgery, Medical College Hospital, Kozhikode. He proved Ext.P18 treatment certificate of the deceased which was issued by Dr.Chandrasekharan of the same hospital at the relevant time. 23. The Court below primarily relied upon the deposition of PW3 who is the son of the appellant and the deceased as to the statement made by his mother about the cause of her death soon after the alleged incident. He deposed: “ . അമയട� കരച�ൽ കകട� ഞ�ൻ ഓ��ടചന അമ കരഞടക�ണ� അച�ൻ ത� ടക�ളത� എന പറഞ,” (which means, hearing my mother's cry, I ran to the spot. Mother told me weeping that Crl.Appeal No.850/15 -:10:- father set her ablaze) “അചൻ ത� ടക�ളത� എന പറഞ� അമ കരഞ.” (which means she wept by saying that father set her ablaze) 24. He further deposed that he found his mother with burns and she was crying aloud. His father was not present near the injured. 25. PW1, though turned hostile to the prosecution, deposed that the deceased told her that she was beaten by her husband on the date of incident. 26. Evidence of PW3 also shows that usually there were quarrel between his father and his mother. He also deposed that when he reached the spot where Bindu was dying, she told him that the accused had set her ablaze. The Apex Court in _**Patel Hiralal Joitaram v. State of Gujarat**_ [2002 KHC 1760] considered similar circumstances wherein at paragraphs 34 to 38, it was held thus:- _“34. Shri U. R. Lalit, learned senior counsel then made an alternative argument that the offence would not escalate beyond culpable homicide not amounting to murder. This argument was made on the premise that the burns caused to her did not result in her death during the initial fatal_ Crl.Appeal No.850/15 -:11:- _period and that her death happened on account of setting in of some later complications._ _35. S.299, IPC defines 'culpable homicide' as "whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."_ _36. Explanation 2 to S.299 has a material bearing on the said contention and hence that is extracted below :_ _"Explanation 2.- Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented."_ _37. S.300, IPC carves out two segments, one is culpable homicide amounting to murder and the second segment consists of culpable homicide not amounting to murder. Four clauses enumerated in the section are enveloped in the first segment. What is set apart for the second segment is compendiously described as "except in the cases hereinafter excepted" from out of the first segment. For the purpose of this case we deem it necessary to quote only the second clause in S.300, IPC._ _"2ndly.- If it is done with the intention of causing such bodily injury as the offender knows to be_ Crl.Appeal No.850/15 -:12:- _likely to cause the death of the person to whom the harm is caused."_ _38. In the present case, appellant did not even make an effort to bring the case within any of the four exceptions enumerated in S.300. Hence the only question to be answered is whether he did the act with the intention of causing such bodily injury as he knew "to be likely to cause death of the deceased". It is inconceivable that appellant would not have known that setting a human being ablaze after soaking her clothes with inflammable liquid would cause her death as the type of burns resulting therefrom would at least be "likely" to cause her death (if not they are sufficient in the ordinary course of nature to cause her death). The fact that she died only after a fortnight of sustaining those burn injuries cannot evacuate the act out of the contours of the "2ndly" clause of S.300, IPC. There was a little abatement of the ferocity of the flames which engulfed her as she, in the instinctive human thirst of getting extricated from the gobbling tentacles of the fire, succeeded in tracing out a water flow. Such a reflex action performed by her had mitigated the conflagration of the flames but did not save her from the fatality of the calamity. Hence the interval of fourteen days between the attack and her death is not a cause for mitigation of the offence perpetuated by the offender. We are, therefore, not impressed by the alternative argument advanced by the learned senior counsel_ Crl.Appeal No.850/15 -:13:- _for the appellant.”_ 27. According to the prosecution, the incident happened at around 2.00 a.m. The appellant had given his version for the first time at 10.00 a.m, which can be seen in his wound certificate. It is to be noted that the appellant does not have a case even in 313 statement as to how the injuries were caused to his wife who was admittedly with him during night on the fateful day. But he does not have a case that his wife poured kerosene over herself and set ablaze or that it was an accident. The specific case of the appellant is that he tried to save his wife from burns and during the course of which he also suffered injuries. The explanation given by the appellant is not at all believable in the light of available evidence. PW3, his own son, stated that his father was not present near his mother when he reached the spot hearing her cry. The appellant never tried to save his wife, nor did he visit her in hospital. 28. The medical evidence would show that the deceased suffered 78% burn injuries and it was fatal. The evidence of Doctors, PW10, PW11 and PW14 and Ext.P8, Ext.P9 and Ext.P15 when read together would show that the deceased breathed her Crl.Appeal No.850/15 -:14:- last due to burn injuries caused by the appellant. Medical evidence fully tally with the dying declaration and other evidence. In FSL report also, there is traces of kerosene in item nos. 1 to 3, which proves presence of kerosene. 29. In the case on hand, the dying declaration which has been relied upon by the prosecution regarding the cause of death of the deceased is spontaneous. According to PW2 and PW3, the victim on their arrival in the scene where she was lying outside her house told them that she was set ablaze by her husband. When she was taken to the hospital, she was unable to speak. Learned counsel for the appellant would argue that since the victim had burns on her face, the prosecution case that she had given a dying declaration and it was heard by PW2 and PW3 cannot be believed. The victim suffered 78% burn injuries as evident from the medical records. Even according to PW3, he suddenly woke up hearing a screaming voice and when he came out, he saw his mother lying down in a 'thodu'. She was in fact running out from her house and was lying in a 'thodu'. It is at that time she had informed PW3 initially and thereafter to PW2 about the cause of her burns. In so far as the statement was given Crl.Appeal No.850/15 -:15:- immediately after the incident, the possibility of the victim giving such a statement cannot be ruled out. The only aspect which requires to be noticed is whether the dying declaration can be the sole basis for conviction. The principles had been well settled in _**Narendra Singh Bisth**_ (supra). In _**Waikhom Yaima Singh v. State of Manipur**_ [(2011) 13 SCC 125], the Apex Court held that the dying declaration should be proved to be wholly reliable, voluntary and truthful and that the maker must be in a fit medical condition to make it. In this case, as already mentioned, son of the accused had given evidence before Court regarding the statement given by his mother while she was injured. We do not find any reason to treat the said evidence as an embellishment at all. That apart, the same evidence was given by PW2, father of the deceased. 30. If at all the dying declaration requires corroboration, in the case on hand, the conduct of the accused clearly proves his involvement in the crime. First of all, the accused and the victim alone were in the house during the relevant time. Though during questioning u/s 313 Cr.P.C., he took up a contention that he suffered burn injuries when he was trying to put out the fire of his Crl.Appeal No.850/15 -:16:- wife, he does not have a case as to how she caught fire. He pleads ignorance. Under S.106 of the Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. This provision of law applies to the accused as well. Apparently, no such explanation has been offered by the accused as to how she came in contact with fire. There is evidence to prove that cause of fire was on account of pouring of kerosene on her body. As to how she suffered the said burning ought to have been explained by the accused. In _**Dnyaneshwar v. State of Maharashtra**_ [(2007) 10 SCC 445], the Apex Court held that when the couple was last seen together in a premises to which an outsider may not have any access, it was for the husband to explain the ground for unnatural death of his wife. 31. Further, the conduct of the accused also has to be considered which gives strength to the prosecution case and the dying declaration made by the victim. While the deceased was lying outside her house in a thodu, the accused was sitting in his house. He did not attempt to take her to the hospital. Though he has a case that he also suffered burns while trying to put out the Crl.Appeal No.850/15 -:17:- fire, it was on the next day that he was taken to the hospital by a few others where he gave a statement that he tried to save his wife from burn injury during the course of which he suffered injuries. Under normal circumstances, if he has absolutely no role in the crime, he would have been the first person to take her to the hospital despite the fact that he also suffered some burns. His attitude in remaining at home after attempting to put out the fire on his wife itself indicates a conduct which is incriminating. 32. Viewed in the light of the aforesaid facts, we have no hesitation to confirm the view taken by the Court below regarding the conviction and sentence of the accused. In the result, the appeal is dismissed. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/A.M.BABU** Rp //True copy// **JUDGE** PS to Judge