Kerala High Court
Manikandan vs Stateof Kerala on 29 June, 2009
Author: M.L.Joseph Francis
Bench: K.T.Sankaran, M.L.Joseph Francis
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.T.SANKARAN
&
THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS
MONDAY, THE 26TH DAY OF AUGUST 2013/4TH BHADRA, 1935
CRL.A.No. 2133 of 2009 (B)
AGAINST THE JUDGMENT IN SC 176/2008 OF THE COURT OF THE II ADDL.SESSIONS
JUDGE,KOLLAM DATED 29-06-2009
APPELLANT/ACCUSED:
--------------------------------
MANIKANDAN, C.NO.4128,
CENTRAL PRISON,
THIRUVANANTHAPURAM
BY STATE BRIEF - ADV. SRI.GOPAKUMAR.G. (ALUVA)
RESPONDENT/COMPLAINANT:
------------------------------------------
STATEOF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2013, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.T.SANKARAN &
M.L.JOSEPH FRANCIS, JJ.
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CRL. A. NO.2133 OF 2009 B
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Dated this the 27th day of August, 2013
JUDGMENT
K.T.Sankaran, J.
The appellant was found guilty for the offence under Section 302 of the Indian Penal Code in S.C.No.176 of 2008 on the file of the Court of the II Additional Sessions Judge, Kollam and he was sentenced to undergo imprisonment for life and to pay a fine of `25,000/-. The appellant is aggrieved by the conviction and sentence.
2. The appellant married the deceased (Sindhu) on 6.9.2004. A child was born in that wedlock. The prosecution case is that they were residing in a thatched shed situated in the property belonging to Sindhu, which was given to her as dowry. Frequent quarrels arose between the accused and Sindhu. It was alleged that the accused was a drunkard and he used to ill-treat Sindhu and the child CRL. A. NO.2133 OF 2009 B :: 2 ::
regularly. Sindhu had occasion to complain to the police and other authorities. Finally, she made Ext.P1 petition dated 26.1.2007 to the Sub Inspector of Police, Chathannoor (PW16), in which, Sindhu alleged about the brutal torture made by the accused. It was also alleged that the accused had misappropriated the gold and properties given to the deceased as dowry. In Ext.P1 it was also alleged that the accused threatened to kill Sindhu and her child. The evidence of PW16 would disclose that at the intervention of police, Sindhu agreed to live with her husband, the accused, and he undertook not to torture Sindhu and the child.
3. In the present case, the allegation of the prosecution is that on 12.5.2007 at 10.45 pm., the accused poured kerosene on the body of Sindhu and set fire on her with an intention to kill her. It was also alleged that after the incident the accused ran away from the place of incident. Sindhu was taken to the District Hospital, Kollam and thereafter to the Medical College Hospital, Thiruvananthapuram. Sindhu died on 18.5.2007 while undergoing treatment in the Medical College Hospital, Thiruvananthapuram.
CRL. A. NO.2133 OF 2009 B :: 3 ::
4. When Sindhu was admitted in the hospital on 12.5.2007, the matter was intimated to the police. PW15, the Assistant Sub Inspector of Police, Parippally, went to the hospital and recorded Ext.P13 First Information Statement, in which, Ext.P13(a) thump impression of Sindhu was taken. PW17, the Sub Inspector registered Ext.P15 First Information Report for the offences under Sections 498A and 307 of the Indian Penal Code. In Ext.P13 First Information Statement, Sindhu stated that on 12.5.2007 by about 8.30 pm., the accused came home. After supper, Sindhu went to bed. The accused was lying down, singing songs. After some time, the accused picked quarrel with Sindhu and stated several scandals about her. The accused took a can containing kerosene, poured kerosene on the body of Sindhu and ignited. She sustained burn injuries and she cried aloud. The neighbours came to the scene and they forcibly opened the door. On seeing the neighbours, the accused ran away. Sindhu was taken in an autorickshaw to the District Hospital, Kollam and thereafter, to the Medical College Hospital. Sindhu stated in the First Information Statement that the accused had doubts about her chastity and kerosene was poured on her and ignited in order to kill her.
CRL. A. NO.2133 OF 2009 B :: 4 ::
5. While undergoing treatment in the Medical College Hospital, Sindhu died on 18.5.2007. PW17 conducted the inquest. PW14 conducted postmortem and issued Ext.P12 postmortem certificate. PW18 prepared Ext.P15 scene mahazar. On a search in the house, MO1 to MO7 were seized and they were sent for chemical analysis. The accused was arrested on 15.5.2007 at 7 am., at a place called Kottiyam. Ext.P19 FSL report shows that the presence of kerosene was detected on the material objects (on almost all the items). PW18 conducted the investigation and laid the charge.
6. On behalf of the prosecution, PW1 to PW18 were examined, Exts.P1 to P25 were marked and MO1 to MO7 were identified.
7. Immediately after Sindhu was admitted in the Medical College Hospital, on intimation by the police, PW13, the Judicial Magistrate of the First Class, Karunagapally, came to the hospital and recorded Ext.P11 dying declaration of Sindhu. Ext.P11 dying declaration was taken in the presence of PW10, after the Magistrate was fully satisfied on the basis of Ext.P8 certificate issued by PW10 CRL. A. NO.2133 OF 2009 B :: 5 ::
that Sindhu was conscious and oriented. The prosecution heavily relied on the dying declaration of Sindhu to bring home the guilt of the accused.
8. Learned counsel for the appellant submitted that the evidence available in the case would not establish the offence and the theory of Sindhu having committed suicide cannot be ruled out. It is submitted that the dying declaration is the weakest piece of evidence and without corroboration, the same cannot be accepted. It is also submitted by the learned counsel for the appellant that the prosecution failed to establish that the accused had the intention to kill Sindhu and that there was a motive for the same.
9. Learned Public Prosecutor submitted that the dying declaration made by Sindhu, when considered along with the oral evidence in the case, Ext.P13 FIS and the contents of Ext.P1 petition filed by Sindhu before the police about four months ago, would establish that the accused had the requisite intention to kill Sindhu and that it was a brutal murder.
CRL. A. NO.2133 OF 2009 B :: 6 ::
10. PW1 is the younger sister of Sindhu. She came to know about the incident and Sindhu being admitted in the hospital. PW1 went to the District Hospital, Kollam. The doctor referred Sindhu to the Medical College Hospital. PW1 stated that the accused had apprehension in the chastity of Sindhu and he used to falsely connect her with some other males.
11. PW2 is a neighbour of the deceased. She stated that the deceased used to tell her about the ill-treatment made by the accused. On the night of the date of incident, she heard a hue and cry. The witness also cried aloud. Her son Mukesh and neighbour Rajesh went to the scene of occurrence and took the injured to the hospital in an autorickshaw belonging to PW3. PW2 stated that the injured (Sindhu) had to walk a distance for about five minutes to go to autorickshaw. PW2 also stated that Sindhu stated to her as to how she sustained the burn injuries. Sindhu stated to PW2 that the accused had poured kerosene on her and ignited.
12. PW3 is an autorickshaw driver. Sindhu was taken to the hospital in his autorickshaw. PW3 also stated that Sindhu told while CRL. A. NO.2133 OF 2009 B :: 7 ::
travelling in his autorickshaw as to how she sustained the burn injuries and the role of the accused in causing the same.
13. PW4 Rajesh is another person who went to the house of the deceased on hearing a hue and cry. PW4 stated that on reaching the spot, Sindhu stated to him that her husband did the offending act by pouring kerosene on her body. PW4 also narrated the incident of taking Sindhu to the District Hospital, Kollam in the autorickshaw belonging to PW3 and thereafter, to the Medical College Hospital in an ambulance.
14. PW8, the Assistant Surgeon attached to the District Hospital, Kollam issued Ext.P6 wound certificate, in which, it is noted that Sindhu sustained 80% burns. The cause of injury is stated to be that her husband poured kerosene and ignited. PW8 stated in evidence to a court question that while examination in the hospital, Sindhu was oriented and she stated to him about the cause of injury.
15. PW9, the doctor attached to the Medical College Hospital, Thiruvananthapuram stated that Sindhu was admitted in the Medical CRL. A. NO.2133 OF 2009 B :: 8 ::
College Hospital at 2.24 am. on 13.5.2007 and she had sustained homicidal burns to an extent of 90%. He also stated that Sindhu died at 5.30 am. on 18.5.2007. He issued Ext.P7 treatment certificate. In cross examination, PW9 stated that at the time of admission, he saw Sindhu and she was conscious.
16. PW10, who is a Post Graduate student attached to the Medical College Hospital, stated that Sindhu was fully conscious as well as oriented. She was able to answer questions correctly. PW10 issued Ext.P8 certificate showing the condition of health of Sindhu. He stated that he was present at the time when PW13 recorded the dying declaration of Sindhu.
17. PW13, Judicial Magistrate of the First Class, Karunagapally recorded the dying declaration of Sindhu at 5.30 pm on 13.5.2007. He referred to Ext.P8 certificate before recording the dying declaration. PW13 put questions to Sindhu to ascertain whether she was conscious and oriented. After being fully satisfied about the ability of Sindhu to give a dying declaration, he recorded Ext.P11 dying declaration. In Ext.P11 dying declaration, Sindhu CRL. A. NO.2133 OF 2009 B :: 9 ::
stated that the accused took a can from behind the almirah and poured kerosene on her. A lantern was available in the room and he put on fire to the maxi worn by Sindhu. She also stated that the accused poured water on her after she sustained burn injuries. She also stated that when neighbours came to the scene of occurrence, the accused ran away. In the dying declaration it was also stated by Sindhu that the accused used to make scandals about her involving other males. The accused used to reach home after fully drunk. To a question put by the learned Magistrate as to what transpired on the date of incident, Sindhu narrated the same. She also stated in the dying declaration that if something happens to her, her son should not be given to her husband.
18. In Ext.P12 postmortem certificate, the injury is noted as follows:
"INJURY (ANTE MORTEM) Infected burns affecting the face, an area 17x7 cm on front of neck, 16x14 cm on the left breast, 35x26 cm involving the lower part of front of chest and adjoining part of abdomen, the whole of right arm, front and inner aspect of right forearm and wrist, upper half of right thigh, the whole of right leg, top of right foot, whole of left upper limb, upper 2/3rd of left thigh, CRL. A. NO.2133 OF 2009 B :: 10 ::
whole of left leg and an area 42x36 cm involving the upper 2/3rd of back of trunk."
The opinion as to cause of death is recorded as "due to burns affecting about 69% of the body surface".
19. On a careful scrutiny of the evidence in the case, it can be seen that Sindhu gave Ext.P11 dying declaration when she was fully conscious and oriented. PW13 recorded the dying declaration after satisfying all the legal requirements. There is no circumstance indicating that the dying declaration was given by the victim on the influence of any other person or under pressure by anybody. PW10 Doctor who issued Ext.P8 certificate was present at the time when the dying declaration was recorded. The evidence in the case would disclose that none else was present at the time when the dying declaration was recorded by PW13. There is no circumstance warranting any inference being taken that the dying declaration was not properly recorded. Therefore, we are of the view that the court below was fully justified in relying on Ext.P11 dying declaration.
20. The dying declaration is further corroborated by the evidence of PW2, PW3 and PW4. Ext.P13 First Information CRL. A. NO.2133 OF 2009 B :: 11 ::
Statement given by the victim would also corroborate Ext.P11 dying declaration.
21. In K.Ramachandra Reddy and another v. The Public Prosecutor (AIR 1976 SC 1994), the Supreme Court quoted with approval the following passage from the judgment of the Supreme Court in Khushal Rao v. State of Bombay (AIR 1958 SC 22):
".....(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human CRL. A. NO.2133 OF 2009 B :: 12 ::
character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.
Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination."
22. In K.Ramachandra Reddy and another v. The Public Prosecutor (AIR 1976 SC 1994) , the Supreme Court also noticed that the observations in AIR 1958 SC 22 were fully endorsed by a Bench of five Judges of the Supreme Court in Harbans Singh v. State of Punjab (AIR 1962 SC 439). It was held by the Supreme CRL. A. NO.2133 OF 2009 B :: 13 ::
Court in Ramachandra Reddy's case that a dying declaration which has been recorded by a competent Magistrate in the proper manner stands on a much higher footing than a dying declaration which depends upon the oral testimony which may suffer from all the infirmities of human memory and human character.
23. In State of Uttar Pradesh v. Ram Sagar Yadav and others (AIR 1985 SC 416), the Supreme Court held thus:
"13. It is well-settled that, as a matter of law, a dying declaration can be acted upon without corroboration., See Khushal Rao v. State of Bombay 1958 SCR 552: (AIR 1958 SC 22); Harbans Singh v. State of Punjab 1962 Supp. (1) SCR 104: AIR 1962 SC 439: Gopalsingh v. State of M.P. (1972) 3 SCC 268: (AIR 1972 SC 1557). There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the Court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear of convincing that the Court may, for its assurance, look for corroboration to the dying declaration...."
CRL. A. NO.2133 OF 2009 B :: 14 ::
24. In the present case, the dying declaration was recorded in a proper manner. Apart from the dying declaration, there are enough materials and evidence to corroborate the statements made by the victim in the dying declaration. The undisputed Ext.P1 would disclose that the victim had alleged about the threat made by the accused to kill her, even four months before the incident. The accused was alcoholic and he used to pick quarrel with his wife almost on every night. The evidence would also disclose that the accused poured kerosene on the body of Sindhu and set her on fire. He ran away after the incident. He could be arrested only on 17.5.2007. The accused has not stated anything about the actual incident, in the statement given by him under Section 313 of the Code of Criminal Procedure. To the pointed questions with reference to the burn injury sustained by his wife, he pretended ignorance. He has no case in Section 313 statement that his wife Sindhu attempted to commit suicide and that was how she sustained injuries. Though some stray suggestions were made to some of the prosecution witnesses about the suicide theory, the accused has no case that he took his wife to the hospital or that he was attending to her. On the other hand, a careful scrutiny of the answers given by the accused in CRL. A. NO.2133 OF 2009 B :: 15 ::
Section 313 statement would show that the case of the accused is that he was quite unaware of the incident. In the facts and circumstances, we are not inclined to accept the case put forward by the appellant/accused that Sindhu had poured kerosene on her and ignited of her own in order to commit suicide. It is also apposite to note here that the medical evidence in the case would indicate that Sindhu did not make any attempt to commit suicide. PW14 stated in evidence that had it been a case of attempt to commit suicide, most of the burn injuries would have been on the scalp and front side, while in the present case there is no injury on the scalp.
25. Learned counsel for the appellant submitted that the statement made by Sindhu in her dying declaration would show that the accused had poured a bucket of water on her. This would show that he had no intention to murder Sindhu. The learned counsel also submitted that such a statement does not find a place in the First Information Statement or in the evidence of any of the witnesses.
The accused has no case that he had poured water on Sindhu after she sustained the burn injuries. On the other hand, the specific case while he was examined under Section 313 of the Code of Criminal CRL. A. NO.2133 OF 2009 B :: 16 ::
Procedure is that he was quite unaware of the incident. It is true that Sindhu stated in her dying declaration that the accused poured water on her after she sustained burn injuries. At best, this would show that only after Sindhu sustained burn injuries, water was splashed on her. That act by itself would not take away the offence committed by the accused. In the facts and circumstances, we are not inclined to accept the case put forward by the accused. We hold that the accused did the act with an intention to commit murder.
26. Lastly, the learned counsel for the appellant submitted that even if it is taken that the accused committed the offending acts, they would only attract the second part of Section 304 of the Indian Penal Code. We are not inclined to accept that contention as well. It has been established in the case that the accused intended to inflict such bodily injuries which he knew it to be likely to cause death and that those injuries are sufficient in the ordinary course of nature to cause death. It cannot be said that after pouring kerosene on the body of Sindhu and setting her on fire, he tried to save her by pouring water and, therefore, he has not committed the offence under Section 302 of the Indian Penal Code. By the very act of causing burn injuries on CRL. A. NO.2133 OF 2009 B :: 17 ::
the victim, the offence is complete and any subsequent attempt to minimize the magnitude of the injury or to save the injured would not take away the offence from the purview of Section 302 of the Indian Penal Code, if death of the victim takes place.
On a careful consideration of the oral and documentary evidence in the case and the arguments put forward by the learned counsel, we do not find any ground to interfere with the conviction and sentence. The Criminal Appeal is, accordingly, dismissed.
(K.T.SANKARAN) Judge (M.L.JOSEPH FRANCIS) Judge ahz/