State of Kerala v. Joy S/O Xavier and Omana

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY ,THE 22ND DAY OF JANUARY 2019 / 2ND MAGHA, 1940** ## **CRL.A.No. 678 of 2014** **AGAINST THE JUDGMENT IN SC 2244/2006 of ADDITIONAL SESSIONS COURT - VI, THIRUVANANTHAPURAM DATED 13-09-2013** **CRIME NO. 220/2003 OF Poojappura Police Station, Thiruvananthapuram** ## **APPELLANT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, MUSEUM POLICE STATION.** **BY ADV. SR. PUBLIC PROSECUTOR SRI.S.U.NAZAR** ## **RESPONDENTS/ACCUSED:** **1 JOY S/O.XAVIER, BINDHU VILASAM VEEDU, PARAYIL COVIL, THIRUMALA - 695 006. 2 OMANA D/O.CHELLAMMA, BINDHU VILASAM VEEDU, VALIYAVO;A. THIRUMALA - 695 006.** **BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.01.2019, THE COURT ON 22.01.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.678/14 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ State of Kerala preferred this appeal challenging the verdict passed by the 6[th] Additional Sessions Judge, Thiruvananthapuram in S.C. No. 2244 of 2006 by which both accused were acquitted of all the charges levelled against them. 2. Prosecution case as seen in the impugned judgment is that the first accused and the deceased were husband and wife and they were residing at Bindu Vilasom Veedu, Parayil Colony, Valiyavila, Thirumala, Thiruvananthapuram. Two children were born in their wedlock. At the time of marriage, the parents of the deceased Bindu had given `50,000/- (Rupees Fifty Thousand only) towards her share. In return, the 2[nd] accused and others executed a document in the joint name of the 1[st] accused and the deceased in respect of 2½ cents of landed property and a part of their family house. Bindu applied before authorities for the construction of a residential building in the said land under a Government scheme. In response to the said application, the authorities had taken steps. While so, the accused came to know Crl.Appeal No.678/14 -:3:- that a new residential building could be constructed only after the demolition of part of the building which had been given in the joint name of A1 and the deceased. So, they opposed the plan for constructing new building in the said property. On 05/11/2003, the officials came to the property to measure out the same in consequence of the application submitted by the deceased. So, the accused picked up quarrel with the deceased and ill-treated her physically and mentally. Out of mental agony, the deceased, on 08/11/2003, at about 09.00 a.m., while she was in the kitchen, attempted to commit suicide and doused kerosene on her body and set fire and thereby sustained burn injuries. She succumbed to the said injuries on 21/11/2003. The allegation was that the accused had ill-treated the deceased physically and mentally in furtherance of their common intention, which prompted her to commit suicide. 3. FIR was lodged by PW1 on 21/11/2003 at about 10.45 p.m. to PW7 the S.I. of Police, Poojappura Police Station and Crime No. 220/03 was registered under Section 174 of the Code of Criminal Procedure, 1973 (for brevity 'Cr.P.C.’). Police filed final report charging accused for offences under Sections 498A and Crl.Appeal No.678/14 -:4:- 306 read with S.34 of the Indian Penal Code, 1860 (for short 'IPC'). Trial Court originally framed charge against the accused for offence under the above Sections. Subsequently, on an application CMP No.326 of 2013 filed by the Additional Public Prosecutor, the trial Court framed an additional charge against the 1[st] accused alleging offence under Section 302 also. 4. CWs 1, 2, 3, 15, 13, 11, 18 and 19 were examined as PWs 1 to 8. Exts.P1 to P9 documents were marked and MO1 to MO3 were identified on the side of the prosecution. CW4 and CW17 were no more. CWs 5, 6, 7, 8, 9 and 16 were given up. PW1 to PW3 were re-called and re-examined. Both sides conceded that PW4 need not be re-called and re-examined. 5. During 313 examination, both the accused denied all incriminating evidence against them. They jointly filed additional statement as under: The deceased committed suicide as she suffered a lot from her family. A letter allegedly written by her was produced along with the additional statement. As per the order of the Family Court, Thiruvananthapuram in OP No.322/2004, the child was given to the custody of the 1[st] accused and because of that enmity, the mother of the deceased Crl.Appeal No.678/14 -:5:- deposed against the accused before the Court. The accused pleaded innocence. The letter produced is not marked by the defence. No evidence was adduced by the defence, apart from Exts.D1 to D3 contradictions being marked through PW2. 6. The learned Public Prosecutor Sri.Udayakumar argued that the Court below erred in appreciating the available evidence in this case. Evidence of PW1 to PW3 were brushed aside by the trial Court citing flimsy reasons. Their evidence is reliable. Medical evidence also corroborates their version. The Court below ought to have found the accused guilty. Of course, there are flaws in the investigation. By placing reliance on the decision of the Apex Court in _**State of Karnataka v. K. Yarappa Reddy**_ (AIR 2000 SC 185), he contended that flaws in investigation should not fetter the Courts of justice from administering justice when there is reliable evidence before them. He argued for a reversal of finding and imposition of sentence in accordance with law. 7. On the contrary, the learned counsel appearing for and on behalf of the accused, Sri.Sasthamangalam S.Ajithkumar submitted that the Court below is fully justified in arriving at its conclusion. The accused are innocent and they are falsely Crl.Appeal No.678/14 -:6:- implicated in the case. Prosecution miserably failed to prove the case beyond reasonable doubt. Evidence of PW1 to PW3 are full of contradictions and embellishments. Court below rightly rejected their version. Even medical evidence did not favour prosecution story of homicide. The appeal is devoid of any merit and it has to be dismissed, he argued. 8. This is an appeal against the acquittal verdict passed by the trial Court. It is well settled that unless there are compelling reasons like perversity, unreasonableness etc., the appellate Court is not expected to disturb a probable view taken by the trial Court in a judgment of acquittal. The question to be looked into is whether the view taken by the Court below is a probable view in the light of available evidence in regard to both the accused. For the same, we have to consider the entire evidence afresh. 9. Evidence in short are as under: PW1 is the younger sister of the mother of the deceased. PW2 is one of the neighbours of the deceased and is an independent witness. PW3 is the mother of the deceased. Ext.P2 is the copy of petition submitted by PW3 to the Chief Minister in Crl.Appeal No.678/14 -:7:- connection with the offence. PW4 is the Medical Officer who conducted the post-mortem of the deceased and he issued Ext.P3 certificate. PW5 is the Doctor who treated the victim at Sree Krishna Hospital, Thirumala. Ext.P4 is the treatment certificate dated 22/04/2004 issued by PW5. PW6 is the Secretary of Sahodara Samajam of local N.S.S. Karayogam. Ext.P5 is the marriage certificate dated 08/04/2004 issued from the said Samajam. PW7 is the ASI, Poojappura who recorded Ext.P1 FIS of PW1 based on which he registered Ext.P1(a) FIR and conducted part of the investigation. PW8 is the then C.I. of Police, Museum Police Station who prepared Ext.P6 inquest report dated 22/11/2003, prepared scene mahazar, the carbon copy of which is marked as Ext.P7. Ext.P8 is the report regarding the alteration of the Section and the name and address of the accused. Ext.P9 is the recovery mahazar dated 08/04/2004. He also seized MO1 nighty and MO2 underskirt worn by the deceased. MO3 is a can of 5 litres capacity which is green in colour. PW8 completed the investigation and filed final report before Court. 10. It is admitted that there is no direct evidence in the case. Prosecution relied on certain circumstances to prove the Crl.Appeal No.678/14 -:8:- guilt of the accused. PW1 to PW3 were examined to prove the immediate circumstances that led to the death of the victim. They relied, _inter alia_ , the following circumstances to prove the guilt of the accused: (i) The deceased, the 1[st] accused and the minor children alone were there in the house at the time of the incident. (ii) A1 did not attempt to extinguish fire though the deceased was found burning. (iii) Three days prior to the incident, A1 and A2 picked up quarrel with the deceased. (iv) The minor children made hue and cry at the time of the incident. A1 who was the only adult person present at the time of the incident in the house, did not make any hue and cry. 11. Court below held that the prosecution failed to prove the core circumstances of the case to its satisfaction. All the evidence including the oral evidence of witnesses PW1 to PW3 were disbelieved by the Court below. It had arrived at a conclusion that the prosecution failed to prove the case against the accused beyond reasonable doubt. 12. Court below came to a conclusion that prosecution Crl.Appeal No.678/14 -:9:- failed to prove beyond reasonable doubt how the death of the victim occurred. Prosecution neither proved it to be a homicide nor a suicide by adducing evidence. Ext.P1 and evidence of PW5 would indicate that the death was accidental. None of the witnesses had a case of homicide at the time of incident or during the time when the victim was alive with capacity to depose. Evidence of PW5 would show that the victim was admitted in his hospital at Thirumala on 08/11/2003 at about 09.00 a.m and he referred the patient to Medical College Hospital, Thiruvananthapuram on 08/11/2003 itself and she was shifted to MCH only on 09/11/2003 morning. Ext.P5 is the case sheet issued by PW5. 13. PW4 is the Doctor who conducted post-mortem examination on the corpse of the deceased. Ext.P3 is the certificate issued by him. He deposed that the following antemortem injuries were noted in the body as burns over an area:- _“1. Burns over an area a) 16x16 cm on the front of neck and adjoining part of under chin region in midlilne. b) 26 x 23 cm on outer aspect of right side of trunk 8 cm outer to midline and 20 cm below collar bone. c) 30x15 cm on right side of back of trunk 12 cm below top of shoulder and just outer to midline. d) involving whole of_ Crl.Appeal No.678/14 ## -:10:- _right upper limb e) 25x11 cm on outer aspect of right thigh 30 cm below top of hip bone. f) whole of right leg, knee and an area 17 x 15 cm on the inner aspect of lower part of right thigh adjoining to knee. g) involving lower 2/3[rd] of left thigh and whole of left leg.”_ 14. The death was due to septicemia following burns. The opinion evidence of PW4 is not fully supporting the prosecution case. According to him, the burns in this case are involving mainly the right side of the body. Left side, head and face are not burned. He denied the suggestion put by the Prosecutor that the said injuries could be caused due to pouring of kerosene over the head of the victim. It can be seen that to a question regarding the possibility of the kerosene being accidentally falling from MO3 kerosene container from hip level of the victim, PW4 deposed that the burns are seen involving the lower and upper part of the body. Thus, medical opinion adduced by the prosecution only shows some possibilities. In our view, it did not fully probabilize the prosecution case. 15. Admittedly, the incident happened on 08/11/2003 at about 09.00 a.m. According to the prosecution, the victim, the 1[st] accused and their two children were present in the house at the Crl.Appeal No.678/14 -:11:- time of the incident. Ext.P1 is the F.I. Statement given by PW1 who is the younger sister of the mother of the deceased. Court below did not place reliance on the statement given by PW1 in Court citing the reason that she did not have such a case during the stage of investigation. Ext.P1 is totally silent even as to the quarrel between the 1[st] accused and the deceased much less the alleged setting ablaze of the victim by the 1[st] accused which she deposed in Court. The cause of incident stated in Ext.P1 is that while the victim was doing household works at kitchen, a can containing kerosene placed above the stove fell on her accidentally and as a result of which kerosene fell on her body and she got burned. PW1 clearly stated in Ext.P1 that the victim was conscious for almost 13 days i.e., from the date of incident till her death. PW1 also stated that she entertained no suspicion regarding the incident. She also stated that she caught fire from the back side. How the fire is caught on the victim is not deposed to by PW1. She does not even have a case during examination in Court that the 1[st] accused is the one who set ablaze the victim. Her version is that at the time when the victim disclosed that the 1[st] accused set her ablaze, PW3 was also present. PW1 admitted Crl.Appeal No.678/14 -:12:- that he had signed on a written paper in the Police Station. We find no error with the trial Court in disbelieving the version of PW1 as a subsequent embellishment, seeing obvious inconsistencies. 16. PW3 is the mother of the deceased. She deposed to the circumstances that resulted in the death of her daughter. She lodged Ext.P2 complaint on 23.01.2004 to the Chief Minister of Kerala seeking relief in the matter. According to her, the 1[st] accused informed at her neighbouring house over phone that the deceased had sustained burn injuries and was hospitalized. She reached the house of the deceased, but nobody was there. Kerosene was seen spread in the kitchen area. She went to Sree Krishna Hospital and asked 1[st] accused what had happened. He did not reply. It is her version that she asked the victim about the incident and the victim replied that the 1[st] accused doused kerosene on her body and as she came out of the house to take a bath, the 1[st] accused called her back for preparing tea for him and when she entered into the kitchen, she got fire. The 1[st] accused played television and tape recorder in loud volume. It is her further version that the victim told her that she should not Crl.Appeal No.678/14 -:13:- disclose it to anybody else. The victim asked PW3 to take her children with PW3. According to PW3, two days prior to the incident also, the 1[st] accused assaulted the victim. Ext.P2 is the complaint lodged by PW3 after two months of the incident. Specific allegation in Ext.P2 is that, in the morning on 08/11/2003, the 1[st] accused physically assaulted the victim and when she had become shattered and weak, he poured kerosene on her body and as she was trying to run away, the 1[st] accused lit a match box and threw at her and fire caught from her back side and the 1[st] accused drew the victim to the kitchen and set her ablaze. But it can be seen that PW3, who is the mother of the victim, did not venture to lodge a complaint immediately to the authorities in spite of allegedly getting such crucial information about the death of her daughter that too from the mouth of her injured daughter. Only after two months, she had a case of homicide against the 1[st] accused in Ext.P2. At the time of examination in Court, she had a different narration of the incident. We find sense in the conclusion of the trial Court that the testimony of PW3 is not believable as such. 17. PW2 is a neighbour of the deceased. According to her, Crl.Appeal No.678/14 -:14:- on 08/11/2003, at about 09.00 a.m., she heard hue and cry of the minor children of the deceased from the house of the deceased. She rushed to the spot. It is her version that the deceased was found burning. She poured water over the victim's body and extinguished fire. According to her, she was told that 1[st] accused poured kerosene over the body of the deceased. So, she gave 3 fist blows to 1[st] accused. In her evidence, Ext.D1 would show that the 1[st] accused and the deceased were leading a happy married life, which is contrary to her deposition in Court. Ext.D2 shows that PW2 had given statement before police that the victim did not say anything when she had asked her how she sustained injuries. She also had no case that she entertained suspicion about the occurrence. Ext.D3 is also marked. PW2 also admitted that the statement was read over to her by the police and she found it different from what she stated before Court. She did not complain about the same and she had no protest on it as well. Court below did not place reliance on her testimony also. 18. The above discussion of testimonies and proved materials reveals the following:- As far as A2 is concerned, there is no charge of 302 against Crl.Appeal No.678/14 -:15:- her. Even according to the prosecution, she was not present in the house at the time of the offence. As already discussed earlier, prosecution failed to prove beyond reasonable doubt that the victim committed suicide. Nothing cogent is brought out in evidence to prove that the victim was subjected to cruelty by the accused as alleged by the prosecution. In the light of the above discussion, we are in agreement with the Court below in its finding that prosecution miserably failed to prove the charges levelled against both the accused under Sections 498A and 306 read with S.34 of IPC. 19. 1[st] accused alone is charged with offence under S.302 of I.P.C. As already elaborated, we do not find any cogent evidence even to conclude that the death of the victim was one of homicide. It is in evidence that the 1[st] accused tried to put off the flames on the victim. Admittedly, he was present in the hospital throughout the day along with others. Prosecution utterly failed to prove their allegation against the first accused. Of course, it is brought in evidence that the 1[st] accused was a private driver of a police officer. It can be seen that no venture was made either from the side of the relatives or from hospital Crl.Appeal No.678/14 -:16:- authorities to get the statement of the victim recorded by a Magistrate. FIR was lodged only after the death of the victim and that too under Section 174 of Cr.P.C. Evidence would further reveal that there were materials and circumstances to register and investigate a crime of unnatural death and that too of a woman's death within 6 years of her marriage in her matrimonial home. What prevented the investigating agency from conducting proper investigation is not known. Prosecution is yet to prove what is the exact nature of death of the victim - accidental, suicidal or homicidal. 20. In our anxious consideration, we do not find any error with the trial Court in arriving at its conclusion. In the result, the appeal is dismissed. ## **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/A.M.BABU** Rp //True Copy// **JUDGE** PS to Judge