Suresh Kannan v. State of Kerala and The SHO, Kannur Railway Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 30[TH] DAY OF OCTOBER 2023 / 8TH KARTHIKA, 1945 CRL.APPEAL NO. 455 OF 2021** **AGAINST THE JUDGMENT DATED 28.05.2018 IN SC 241/2015 OF SPECIAL COURT FOR TRIAL OF OFFENCES AGAINST WOMEN AND** **CHILDREN), THALASSERY** **CRIME NO.195/2014 OF RAILWAY POLICE STATION, KANNUR,** ## **KANNUR** ## **APPELLANT/ACCUSED:** **SURESH KANNAN** **AGED 31 YEARS, S/O PACHIYAPPAN, AMBEDKAR COLONY, KAMAKSHIPURAM, ODAPETTI, KAMBAM, SEEPALAKUTTA, UTHAMAPALAYAM, THENI, TAMILNADU-625 533.** **BY ADV T.U.SUJITH KUMAR** ## **RESPONDENTS/COMPLAINANTS:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 THE SHO, KANNUR RAILWAY POLICE STATION, KANNUR-670 001.** **BY SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 13.10.2023, THE COURT ON 30.10.2023 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.455 of 2021 P.B. SURESH KUMAR & P.G. AJITHKUMAR, JJ. ----------------------------------------------------------------Crl.Appeal No.455 of 2021 ----------------------------------------------------------------Dated this the 30[th] day of October, 2023 ## JUDGMENT ## P.G.Ajithkumar, J. The appellant was the accused in S.C.No.241 of 2015 before the Special Judge for the Trial of Offences against Women and Children, Thalassery. The Special Judge, after trial, convicted and sentenced the appellant for the offences punishable under 302 of the Indian Penal Code, 1860 (IPC) and under Section 151 of the Railways Act, 1989. The appellant assails his conviction and sentence in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code). 2. Briefly, the prosecution case is as follows: At 4.45 a.m. on 20.10.2014, Smt.Pathu @ Pathumma was sitting in the coupe having seat Nos.67, 68 and 69 in the 5[th] compartment (from the rear side) of Train No.16308/Kannur Alappuzha Executive Express, which was stationed in platform No.1. The appellant, out of the grudge developed on account of her refusal to accompany him to Mangalore and his sexual 3 Crl.Appeal No.455 of 2021 desire, poured petrol at her body and set fire. Caught ablaze, she ran out of the coach. She was rushed to the District Hospital, Kannur by the fire force and police personnel. She was taken for expert treatment to the Medical College Hospital, Kozhikode, But she succumbed to the burn injuries. As a result of setting fire, loss to a tune of Rs.15,000/- was occasioned to the Indian Railways. Thereby the appellant committed the aforesaid offences. 3. Crime No.195/2014 of Kannur Railway Police Station was registered regarding the incident based on the statement of one Govindan, who is no more. PW36, after investigation, submitted the final report before the Judicial Magistrate of the First Class-II, Kannur. On committal, the Sessions Court, Thalassery, after taking cognizance, made over the case to the Special Court. When the charge was framed and read over, the appellant denied the charges. The prosecution has examined PWs.1 to 37 and Exts.P1 to P35 to bring home its case. MOs.1 to 13 were identified as well. On the close of the prosecution evidence, the appellant was questioned under Section 313(1)(b) of the Code. He had 4 Crl.Appeal No.455 of 2021 denied all the incriminating circumstances appeared against him. He has filed a written statement pleading innocence. After recording a finding that he was not entitled to be acquitted under Section 232 of the Code, the appellant was asked to enter on his defence. He did not tender any evidence. 4. The appellant assails the conviction and sentence on many grounds, which would be dealt with at appropriate places. 5. Heard the learned counsel appearing for the appellant and the learned Senior Public Prosecutor in detail. 6. The points that require consideration are,- - (i) Did Smt. Pathu @ Pathumma sustain burn injuries and she succumb to such injuries? - (ii) Did the appellant lit fire to the body of the deceased causing her fatal injuries? - (iv) Had the appellant caused the death of Smt.Pathu @ Pathumma? - (v) Do the conviction and sentence of the appellant require interference? 5 Crl.Appeal No.455 of 2021 ## Point No.(i) 7. PW20 was working as Assistant Station Officer at Fire and Rescue Station, Kannur on 20.10.2014. On getting an information from the Railway Station, Kannur, that a woman sustained burn injuries at the station, he along with his colleagues rushed to the Railway Station. At about 4.47 a.m., they reached the Railway Station and the injured was found sitting on a cement bench in Platform No.1. The platform was full of fumes and fire was already extinguished. He took the injured in the Ambulance to the District Hospital, Kannur. The injured walked a little, but weak and hence she was taken in a stretcher to the ambulance. He as well as PW24, a Senior Civil Police Officer, who was on duty at the Railway Station, accompanied the injured to the hospital. 8. PW24 deposed that while he was on duty at the Railway Station, at about 4.45 a.m. noticed fumes coming from the train stationed on the platform and when he rushed to that area saw a woman sitting on a cement bench near Milma Booth with burn injuries. He inspected the train and found that cushion seats inside the coach had caught fire. The 6 Crl.Appeal No.455 of 2021 fire was already brought under control. He along with PW20 took the injured to District Hospital, Kannur. 9. While in the ambulance, the injured told PW24 that she came to Kannur along with a youngster from Kozhikode and as his demand to accompany him to Mangalore was declined, he set her ablaze after pouring some liquid. She further stated that she had no prior acquaintance with the offender. The further version of PW24 is that the injured was taken to the Medical College Hospital, Kozhikode as referred from the District Hospital, Kannur and she succumbed to the injuries. 10. At the District Hospital, Kannur, the injured was attended by one Dr.Remya. Ext.P17 is the wound certificate regarding examination of the injured. Since Dr.Remya was abroad, PW30, who was a Junior Consultant in the District Hospital, Kannur was examined to prove Ext.P17. He deposed that he knew the handwriting and signature of Smt.Remya and proved Ext.P17. She was brought to the Hospital with the alleged history that an unknown person poured kerosene and set her on fire. It was recorded in Ext.P17 that she had 54% 7 Crl.Appeal No.455 of 2021 burns. At the Medical College Hospital, Kozhikode, Smt.Pathumma succumbed to the burn injuries. PW35 had conducted a postmortem on her body. Ext.P20 is the certificate of autopsy. PW35 deposed that the deceased had extensive burn injuries and burns covered 45% of the body surface. But the final opinion regarding the cause of death could not immediately be given. The samples of hair and skin collected from her body were therefore sent for chemical examination. Exts.P21, P22, P22(a) and P22(b) are the reports obtained after chemical analysis. On the basis of the report of chemical analysis, PW35 concluded that the death of Smt.Pathumma was due to burns and inhalational injury. The report confirmed that the accelerant used for the fire was petrol. Thus, his final opinion was that Smt.Pathumma died due to burns involving 45% of the body surface and inhalational injury. 11. PWs.20 and 24 are accidental witnesses, but their presence at the place of occurrence and the possibility of their reaching the place and taking the deceased to the hospital are quite obvious and believable. On getting information regarding the fire caught on the train and burn injuries to the deceased, 8 Crl.Appeal No.455 of 2021 PW20 in his official capacity reached there. Similar was the reason for PW24 to be there. He was on duty in the Railway Station. Their versions before the court are quite natural and devoid of any inconsistency. When Smt.Pathumma succumbed to the burn injuries she sustained on 20.10.2014, what she stated regarding the cause of injury to PW24 became a statement relevant under Section 32(1) of the Indian Evidence Act, 1872. 12. What the deceased stated to PW24 is that a young man, who accompanied her from Kozhikode to Kannur lit fire at her body since she refused his demand to accompany him to Mangalore. The said statement contains the cause of her death, therefore, the version of PW24 in that regard, which stands reliable, can be acted upon as a dying declaration. The said evidence gets affirmation from the evidence tendered by PWs.20, 30 and 35. The opinion of PW35 is that Smt.Pathumma died of the burn injuries and inhalational injury. Thus it is established that she died as a result of the burn injuries sustained at or around 4.45 a.m. on 20.10.2014 inside the train compartment at Kannur Railway Station. 9 Crl.Appeal No.455 of 2021 13. The case of the prosecution is that the deceased along with the appellant came to Kannur Railway Station from Kozhikode and following the dispute between them, the appellant lit fire at her. PWs.4 and 9 stated that they saw the deceased at Kozhikode Railway Station along with the accused. PW4 is an employee under the parking contractor in Kozhikode Railway Station. The deceased approached him during the night on 19.10.2014 and demanded ‘hans’. He had acquaintance with her and he gave 'hans' to her. She soon went inside the Railway Station and at that time the appellant was along with her. PW9 is an autorickshaw driver at Kozhikode. His version is that while waiting in the Railway platform at Kozhikode, during the right intervening 19.10.2014 and 20.10.2014, saw the deceased there. He also stated that she along with the appellant boarded the Ajmer Train. PW9 claimed that he knew the deceased for several years and he could identify the appellant as the person along with her. Although some doubt about his veracity was tried to be created, we find no reason to disbelieve him. PWs.4 and 9 are totally disinterested witnesses. Being persons having 10 Crl.Appeal No.455 of 2021 acquaintance with the deceased, they tendered evidence. Their evidence can well be believed. 14. PW6 is a Porter working at a parcel office in Kannur Railway Station. It is his version that between 1.30 and 2.00 a.m. on 20.10.2014, he happened to see the deceased quarreling with the appellant at the Railway Station, near a Milma Booth in the platform. He further stated that the deceased was seen sitting on a chair thereafter and also boarding a train, which reached Platform No.1. He also deposed that after sometime the deceased came running out of the compartment with fire on her body and the appellant taking on his heels along the middle door of that compartment. He added that the appellant ran southward from the platform. 15. PW7, a newspaper vendor in the Kannur Railway Station, stated that at around 4.45 a.m. he saw the appellant running towards south along platform No.1. He added that the appellant ran out along the main gate of the Railway Station. PW7 did not however state as to how the lady sustained burn injuries, although he knew about that. His statement was 11 Crl.Appeal No.455 of 2021 recorded by a Magistrate under Section 164 of the Code. On a detailed consideration of the oral testimonies of PWs.6 and 7, we find no reason to disbelieve them. 16. PW16, a Guard in Kannur Railway Station, and PW18, a Superintendent in that Railway Station, Kannur, deposed before the court that they saw a lady with burn injuries on platform No. 1 at around 4.30 a.m. on 20.10.2014 in the Railway Station. They are quite natural witnesses. Their evidence lends sufficient support to the oral testimony of PW6, who stated that the deceased came out of a compartment of the train stationed in the Kannur Railway Station with flames on the body and sat on a bench on the platform. The said evidence proved that Smt.Pathumma sustained burn injuries from inside the train. 17. PW14 is a Mechanical Technician, PW15 is a Loco Pilot, PW16 is a Guard, PW17 is a Shunting Loco Pilot, PW18 is a Superintendent and PW19 is a Senior Section Engineer, all working in Kannur Railway Station. They deposed in court that they were on duty on 20.10.2014 and witnessed the fire occurred inside a compartment of Train No.16308, which was 12 Crl.Appeal No.455 of 2021 stationed in the Railway Station. It was explained that seats No. 67, 68 and 69 in that coach were damaged in the fire and the fire had occurred at or around 4.30 a.m. PW19, the Senior Section Engineer deposed that on account of the fire, the Railway suffered a loss of Rs.15,000/-. There is no reason to disbelieve those witnesses, whose versions are consistent. From their evidence, it is proved that the deceased sustained burn injuries at the coupe having seats No. 67, 68 and 69. PW36, the investigating officer prepared Exts.P9 to P13 scene mahazars, in which the damages in the train compartment are narrated. That further strengthens that the incident of setting fire to the deceased had occurred in that compartment. ## Point Nos.(ii) and (iii) 18. From the evidence of PWs.4 and 9, it is established that the deceased accompanied by the appellant left Kozhikode for Kannur. PW6 stated vividly about his noticing both the deceased and the appellant in Kannur Railway Station together. The deceased is a person known to those witnesses. They stated that the deceased was a person who frequented the Railway Station. PW10 is a salesman in the 13 Crl.Appeal No.455 of 2021 Milma Booth at Kannur Railway Station. It is his version that while he was in the Milma Booth, in the early morning of 20.10.2014, the accused came there and bought a cigarette. After loitering there for some time, took an empty pet bottle from near his shop. 19. Another person stated about the presence of the accused on the premises of the Railway Station is PW8. He is an autorickshaw driver. It is his version that while he was waiting with his autorickshaw near the bus stand, saw the accused running away from the Railway Station side saying in Tamil that he killed a lady and could read the news in the newspaper. The way in which PW8 narrated the incident creates some suspicion. We are of the view that it is not safe to rely on the evidence of PW8 in view of the infirmities in his evidence. Even in the absence of his evidence, the identity of the appellant as the person who ran out of the train and then out of the Railway Station immediately after Smt.Pathumma sustaining burn injuries has been established. PWs.4, 7 and 8 identified the appellant during the test identification parade conducted by the Judicial Magistrate, whose report is Ext.P33. 14 Crl.Appeal No.455 of 2021 The Magistrate, who conducted the parade, is no more. His report is one prepared in the discharge of his professional duty in his official capacity. It is relevant under Section 32(2) of the Evidence Act. PWs.4, 7 and 8 deposed in court that they identified the appellant during the test identification parade. The learned counsel appearing for the appellant alleged that after five days of the arrest of the appellant, the parade was conducted and therefore the report cannot be relied on. There is nothing on record to show that the said witnesses had occasion to see the appellant ever before the identification parade after the incident. Hence, we find no merit to the said submission. 20. PW11 is a salesman in a petrol pump named, Alunkal Kannan, near the Railway Station, Kannur. He deposed that he was on night duty on 19.10.2014 and on the early morning of 20.10.2014, the appellant came there with a bottle and bought petrol for Rs.40/-. He duly had identified the appellate before the court. The said facts were deposed by him before the Magistrate when he was examined under Section 164 of the Code. The sale of petrol at around 15 Crl.Appeal No.455 of 2021 4.00 p.m. is proved by his evidence coupled with the oral evidence of PW12, who is the owner of the petrol pump. He deposed in court on the basis of the record kept in his petrol pump that at 4.03 a.m. sold petrol worth Rs.40/- from his pump. Of course, he produced a computer-generated statement regarding the sales on that day in his petrol pump. Ext.P8 is that statement. It is a computer-generated statement and inadmissible for want of a valid certification under Section 65B of the Evidence Act. But the version of PW12 regarding such a sale is from his personal verification of the computer in his custody. Therefore, his version can be accepted as primary evidence. When his evidence corroborates the oral testimony of PW11, it can certainly be held that the appellant purchased petrol for Rs.40/- at 4.03 a.m. on 20.10.2014 in a bottle. 21. The evidence tendered by the prosecution establishes that the appellant and the deceased were together in the Railway Station, they indulged into a quarrel during the night at or around 2.00 a.m. on 20.10.2014, the deceased boarded Executive Express Train No. 16308 and at around 4.45 a.m. she was set at fire and soon the appellant ran out of 16 Crl.Appeal No.455 of 2021 the same compartment in that train. In the light of the said evidence, the dying declaration of the deceased that the person who accompanied her to the Kannur Railway Station from Kozhikode establishes that it was the appellant who lit fire at the body of the deceased. From the statement of the deceased, it is proved that the appellant had sufficient provocation to set ablaze the deceased. It follows that the prosecution succeeded in proving beyond doubt that the appellant lit fire at the body of the deceased and the injuries she sustained thereby resulted in her death. 22. The prosecution places reliance also on the confession made by the appellants before PW37 who was the Judicial Magistrate of the First Class-I, Kannur. Ext.P35 is the confession recorded by him. The appellant made revelations before PW37 that he poured petrol on the body of the lady sitting inside the train and lit fire. His version was that the lady gave to him her name as Shalini, but from the other descriptions, it is quite explicit that the woman he referred to in his statement, Ext.P35, is the deceased Smt.Pathumma. His statement before PW37 was that he lit fire at her while she 17 Crl.Appeal No.455 of 2021 was sitting inside the train and he ran away from the scene after leaving the petrol bottle there. Certainly, that amounts to admission of his guilt and therefore it is a confession. 23. The learned counsel appearing for the appellant would contend that Ext.P35 does not satisfy the requirements of Section 164 of the Code and therefore it cannot be relied on. The court below considered the said question and took the view that the confession is smacked by procedural infractions and hence it could not be taken into consideration. The main reason for assailing the confession is that the appellant was not given time for reflection before recording the confession and therefore it cannot be termed as a voluntary one. 24. On a perusal of Ext.P35, it can be seen that the appellant was produced before PW37 at 2.30 p.m. on 13.11.2014 from the Special Sub Jail, Kannur. He was not in police custody. The proceedings of PW37 would show that a few questions were put to the appellant, of which the essential ones are whether he was coerced by anyone to confess and that was he aware of the consequence of giving such a confession. From the answers given by the appellant, PW37 18 Crl.Appeal No.455 of 2021 concluded that he volunteered to make revelations regarding the guilt and therefore he straight away proceeded to record the confession at 2.40 p.m. It is evident that without affording time for the appellant to have a reflection as to whether or not he should give such a confession, PW37 recorded the statement of the appellant. A certification is insisted by Section 164(4) of the Code is, however, made by PW37 at the foot of the confession. 25. The Apex court considered the requirement of giving cooling time to an accused before recording his confession in a slew of decisions. The requirement of Section 164 of the Code is that the person making the confession shall be informed that he was not bound to make a confession and that if he does so it might be used against him. No doubt, it is the obligation of every Magistrate recording the confession that he should be convinced that the confession is made voluntarily. 26. In Shankaria v. State of Rajasthan [(1978) 3 SCC 435] a three Judge Bench of the Apex Court considered the question as to the need of affording reasonable time for 19 Crl.Appeal No.455 of 2021 reflection before recording confession. The accused in that case was arrested on 03.06.1974. He remained in police custody upto 12.06.1974. He was taken to a Judicial Magistrate of the First Class on that day to record his confession. Under the orders of the Magistrate, the accused was committed to judicial lock up. On the next day an application was submitted to the Magistrate, requesting him to record the confession of the accused. On that application, the Magistrate issued directions to produce the accused from the Judicial lock before the Magistrate at 8.20 a.m on 14.06.1974. After preliminary examination to ensure whether he wanted to make a confession voluntarily, the Magistrate proceeded to record the confession after 15 minutes. 27. The Court observed that although the interval between the preliminary questioning of the appellant and his confession was about 15 minutes, the appellant had not less than 38 hours at his disposal, whilst he was in judicial custody free from fear or influence of the Police, to think and decide whether or not to make a confession. The confession was therefore held to be voluntary. It is clear from the facts that 20 Crl.Appeal No.455 of 2021 the accused got about 38 or 40 hours to think over whether he should give confession or not. Therefore the gap of 15 minutes between the preliminary questioning and recording of confession was held to be sufficient. In that context it was held, “39. It is true that the interval between the preliminary examination of the appellant and the recording of his confessional statement was about 15 minutes. But there is no statutory provision in S.164 CrPC or else where, or even an executive direction issued by the High Court, that there should be an interval of 24 hours or more between the preliminary questioning of the accused and the recording of his confession. The condition precedent for recording a confession by the Magistrate in the course of Police investigation is provided in S.164(2) CrPC which mandates the Magistrate not to record any confession, unless upon questioning the accused person making it, he has reason to believe that it is being made voluntarily.” 28. The Apex Court in Ranjit Singh @ Jithaand and others v. State of Punjab [AIR 2002 SC 3247] held that before adverting to the facts said to have been narrated by the accused as recorded in the confessional statements, it deserves to be noticed that in case the recording officer of the confessional statement on administering the statutory 21 Crl.Appeal No.455 of 2021 warning to the accused forms a belief that the accused should be granted some time to think over the matter, it becomes obligatory on him to grant reasonable time for the purpose to the accused. In other words, the cooling time that is granted has to be reasonable. What time should be granted depends upon the facts and circumstances of each case. At the same time, however, when the time to think over is granted that cannot be a mere farce for the sake of granting time. In a given case, depending on facts, the recording officer without granting any time may straight away proceed to record the confessional statement but if he thinks it appropriate to grant time, it cannot be a mechanical exercise for completing a formality. 29. The Apex Court in Rabindra Kumar Pal @ Dhara Singh v. Republic of India [AIR 2011 SC 1436], evolved the following principles with regard to the parameters of Section 164 of the Code: - (i) The provisions of S.164 CrPC must be complied with not only in form but in essence. - (ii) Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced 22 Crl.Appeal No.455 of 2021 and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution. (iii) A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial. (iv) The maker should be granted sufficient time for reflection. (v) He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement. (vi) A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession. (vii) Non-compliance of S.164 CrPC goes to the root of the Magistrate's jurisdiction to record the confession and renders the confession unworthy of credence. (viii) During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him. (ix) At the time of recording the statement of the accused, no police or police official shall be present in the open Court. (x) Confession of a co-accused is a weak type of 23 Crl.Appeal No.455 of 2021 evidence. (xi) Usually the Court requires some corroboration to the confessional statement before convicting the accused person on such a statement. 30. From the above, what we can cull out is that even if the accused is produced from judicial custody, a reasonable time shall be given to him to reflect before making a decision on whether or not he has to make a confession. Unless the person gets reasonable cooling period, it cannot be said that the voluntariness of the person to make the confession is an informed one and really voluntary. It is true that there cannot be a hard and fast rule as to what shall be the period of cooling time. In a case where the accused is produced from police custody, the minimum period for reflection shall be 24 hours. If, the production is from the judicial custody or the person appears voluntarily or on summons, the cooling period need not necessarily be 24 hours, but there shall be a reasonable period and the records should reflect the period afforded to the petitioner. The Magistrate shall also record his satisfaction based on the answers given by the person that he took the decision to make the confession after understanding the consequence of making the confession. 24 Crl.Appeal No.455 of 2021 31. In the instant case, the appellant was produced at 2.30 p.m. and PW37 started recording the confession at 2.40 p.m. There is nothing on record to show that before his production at 2.30 p.m. On 13.11.2014 before PW37, he was aware that his confession was about to be recorded. When his confession was recorded straight away and without affording time for reflection, it cannot be said that his confession was a voluntary one. Hence we are of the view that the court below was right in refusing to act upon Ext. P35 confession. ## Point No.(iv) 32. As stated, the prosecution has proved beyond doubt that the appellant set the deceased at fire with an intention to cause bodily injury to her as is likely to cause her death. When the said act resulted in her death, his act became the offence of murder. The evidence adverted to above sufficiently has proved that Indian Railway sustained loss on account of the act of the accused. Therefore his conviction under Section 302 of the IPC and Section 151 of the Railways Act is liable to be confirmed. The sentences imposed 25 Crl.Appeal No.455 of 2021 on the appellant are commensurate to the offence and we find no reason to interfere with the conviction or sentence. The appeal therefore fails and the appeal is dismissed. Sd/P.B. SURESH KUMAR, JUDGE Sd/- P.G. AJITHKUMAR, JUDGE dkr