Kerala High Court
Sabu @ Kumaran vs The Sub Inspector Of Police on 22 August, 2012
Author: Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 22ND DAY OF AUGUST 2012/31ST SRAVANA 1934
CRL.A.No. 2000 of 2009 ( )
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SC.622/2005 of ADDL.SESSIONS COURT,THALASSERY
APPELLANT(S)/APPELLANT/ACCUSED 1 AND 3:
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1. SABU @ KUMARAN, S/O.KARIKKAN,
AGED 38 YEARS, AARALAM AMSOM, CHATHIRUR 110 COLONY
KANNUR DISTRICT.
2. BABU S/O.KARTHIKEYAN, AGED 38 YEARS,
DO.
BY ADV. SRI.CIBI THOMAS
RESPONDENT(S)/COMPLAINANT & STATE:
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1. THE SUB INSPECTOR OF POLICE,
AARALAM POLICE STATION.
2. STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. PUBLIC PROSECUTORSRI.ROY THOMAS MUVATTUPUZHA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-08-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.SASIDHARAN NAMBIAR & P.BHAVADASAN, JJ.
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CRL.A.NO.2000 OF 2009
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Dated 22nd August, 2012
JUDGMENT
Sasidharan Nambiar,J.
Appellants are accused 1 and 3 in S.C.622/2005 on the file of Additional Sessions Court, Thalassery. They were convicted and sentenced to imprisonment for life and fine of Rs.10,000/- and in default simple imprisonment for six months for the offence under Section 302 and rigorous imprisonment for three years and a fine of Rs.3,000/- and in default simple imprisonment for one month each for the offence under Section 452 and simple imprisonment for one month each for the offence under Section 341 and rigorous imprisonment for one year each for the offence under Section 324 of Indian Penal Code. Accused 2 and 4 who were convicted CRA 2000/09 2 and sentenced only for the offences under Sections 452, 341 and 324 of Indian Penal Code, did not file an appeal. The prosecution case is that on 25/12/2001 at about 9 p.m the four accused in furtherance of their common intention trespassed into house No.AP-IX-389 of 110 colony at Chathirur of Aralam village and wrongfully restrained deceased Meenakshi, when deceased Meenakshi along with PW4 got into the house. It is the case that the accused threw stones at them when Meenakshi objected the accused consuming liquor in front of their house. Then Meenakshi got into the house. The accused in furtherance of their common intention poured kerosene on the body of Meenakshi and set fire and caused her death. They also inflicted injuries on Pws.1 and 8, by throwing stones at them and thereby committed the offences under Sections 452, 341, 324 and CRA 2000/09 3 302 read with Section 34 of Indian Penal Code. According to the prosecution after the accused set fire on deceased Meenakshi, PW1 Sujatha her sister poured water and changed the dresses worn by Meenakshi. Meenakshi sustained severe burns. She was immediately taken to Government Hospital, Kannur from where PW11 Dr.Vinod Kumar examined Meenakshi and prepared Ext.P7 wound certificate and admitted her as an inpatient. PW11 also examined PW1 Sujatha and prepared Ext.P6 wound certificate. PW11 also examined PW8 Madhu and prepared Ext.P5 wound certificate. PW1 furnished Ext.P1 FI statement, recorded by PW5 the head Constable, who reached General Hospital on getting information. Based on Ext.P1 FI statement, PW6 Assistant Sub Inspector prepared Ext.P1(a) FIR and registered crime No.125/2001 of Aralam police station for the offences under Sections 452, 341, 324 and CRA 2000/09 4 307 read with Section 34 of Indian Penal Code. While Meenakshi was undergoing treatment as an inpatient, on the requisition submitted by the police, PW12 Smt.Mridula, Judicial First Class Magistrate-II, Kannur recorded Ext.P9 dying declaration, after getting the fitness of Meenakshi to give dying declaration certified by Dr.Deepa. Meenakshi succumbed to injuries on 2/1/2002. The offence was therefore, altered to Section 302 of Indian Penal Code. PW13 Sub Inspector of Police prepared Ext.P4 scene mahazar and arrested the accused and produced them before the Magistrate. After incorporation of the offence under Section 302 of Indian Penal Code, PW14 Dy.S.P conducted inquest and prepared Ext.P15 inquest report and continued the investigation. MO.1 can allegedly used for pouring kerosene on the body of Meenakshi, MO.2 piece of churidar, MO.3 match box, MO.4 match CRA 2000/09 5 sticks, MO.5 stone and Mo.6 hairs were recovered and produced in Court. Dr.Mohammed Musthaque who was not available for examination, conducted autopsy on 3/1/2012 and prepared Ext.P8 postmortem certificate stating that death was caused due to burns sustained by Meenakshi. Ext.P16 forwarding note was submitted to sent the material objects to chemical examiner's laboratory and obtained Ext.P17 report. After completing the investigation PW16 laid the charge before Judicial First Class Magistrate, Mattannur who committed the case to the Sessions Court, Thalassery. Learned Sessions Judge made over the case to Additional Sessions Court for trial. When learned Sessions Judge framed charges for the offences under Sections 452, 341, 324 and 302 read with Section 34 of Indian Penal Code, all the accused pleaded not guilty. CRA 2000/09 6 The prosecution examined 6 witnesses and marked 18 exhibits and identified six material objects. After closing the prosecution evidence accused were questioned under Section 313 of Code of Criminal Procedure. The accused denied all the incriminating evidence put to them and contended that they are innocent. Learned Sessions Judge though called upon the accused to enter on their defence and adduce defence evidence, they did not adduce any evidence. Learned Additional Sessions Judge based on the evidence found accused 1 and 3 guilty of the offence under Section 302 read with Section 34 of Indian Penal Code and all the accused guilty of the offences under Sections 452, 341 and 324 read with Section 34 of Indian Penal Code. After hearing the accused they were sentenced as stated earlier. The conviction and sentence are challenged by accused 1 and 3 in this CRA 2000/09 7 appeal.
2. Learned counsel appearing for the appellants and learned Public Prosecutor were heard.
3. Argument of the learned counsel appearing for the appellants is that Ext.P9 dying declaration shows that when PW12 recorded Ext.P9 dying declaration, case of deceased Meenakshi was that some unknown persons poured kerosene and set fire to her. It is further stated by her that it was one Kumaran, her neighbour who poured kerosene and set fire and that Kumaran is not her relative. Learned counsel pointed out that first accused is Sabu and there is no evidence to show that he was called Kumaran or known as Kumaran and therefore, Kumaran referred to in Ext.P9 can never be the first appellant. It was argued that evidence of PW1 shows that first appellant CRA 2000/09 8 is a relative of PW1 who is none other than the daughter of the sister of Meenakshi and therefore, when first appellant is a relative of Meenakshi, Kumaran referred to in Ext.P9, who is specifically stated not a relative of Meenakshi, can never be the first appellant. It is also pointed out that Exts.P5 to P7 wound certificates prepared by PW11 also shows the names of Kumaran as one of the assailants and evidence of PW11 that the name mentioned as Kannan can never be true and the entries in Exts.P5 to P7 corroborate the fact mentioned in Ext.P9 dying declaration and in such circumstances, the prosecution case can never be believed. Learned counsel also argued that as per the prosecution case the accused started consuming liquor in front of the house, where Meenakshi, PW4 Balan her husband, PW1 and PW7 Santha, were residing, and Meenakshi objected CRA 2000/09 9 to the consuming of liquor in front of that house and then the accused started pelting stones at Meenakshi, PW1, PW4 and PW7. PW4 took Meenakshi inside the house. It was alleged that the accused at that time trespassed into the house through the door of the kitchen and took MO.1 can and poured kerosene on deceased Meenakshi and set fire. It was pointed out that as per Ext.P1 version of PW1, it was the first accused who poured kerosene and set fire on the deceased and there was no case that kerosene was poured by first accused and match stick was lighted by the third accused as deposed by PW1 from the box. Learned counsel also argued that evidence of PW4 and PW7 do not corroborate that evidence and though PW4 and PW7 deposed that first accused poured kerosene and third accused set fire by lighting the match stick, in the light of the version in CRA 2000/09 10 Ext.P1, that case could only be developed later. Learned counsel argued that if the evidence of PW1, PW4 and PW7 from the box is true, Meenakshi would not have disclosed otherwise when her Ext.P9 dying declaration was recorded by PW12. Learned counsel appearing for the appellant argued that from the nature of the evidence, it cannot be believed as the accused have no other reason, except the alleged objection raised for consuming liquor, in order to trespass into the house and set fire on Meenakshi by pouring kerosene and therefore, the prosecution case cannot be believed. Learned counsel finally argued that in any case, in the light of the unsatisfactory evidence, learned Sessions Judge should not have found that appellants committed the offences under Section 302 and at best the offence would only come under Section 304 of CRA 2000/09 11 Indian Penal Code.
4. Learned Public Prosecutor submitted that even in the remand report it was specifically stated that the first accused is known as Kumaran and therefore, the disclosure in Ext.P9 that Kumaran poured kerosene and set fire, will not go against the prosecution case, as the first accused is known as Kumaran. Learned Public Prosecutor argued that evidence of PW11 shows that name of one of the assailants mentioned in Exts.P5 to P7 is Kannan and not Kumaran and in such circumstances, based on Ext.P9, appellants are not entitled to contend that, they are not involved in the incident. Learned Public Prosecutor also argued that evidence of PW11 shows that Meenakshi was under sedation and not capable of giving rational answers and in such circumstances, her statement in Ext.P9 cannot be given much weight CRA 2000/09 12 as against the evidence of PW1, PW4 and PW7. Learned Public prosecutor also argued that there is no material contradiction in the evidence of PW1, PW4 and PW8 and considering the fact that they belong to Paniya community and rustic illiterate witnesses, the minor contradictions cannot be taken as a ground to disbelieve their evidence and learned Sessions Judge rightly appreciated the evidence and found that first accused poured kerosene and set fire on deceased Meenakshi and caused her death and therefore, conviction of the appellants for the offence under Section 302 of Indian Penal Code is perfectly correct. Learned Public Prosecutor also submitted that the evidence of Pws.1,4 and 7 establish that the accused were consuming liquor in front of the house of Pws.1,4, 7 and Meenakshi on the night of 25/12/2001 and when Meenakshi objected to CRA 2000/09 13 it, they pelted stones and caused hurt to PW1, evidenced by Ext.P6 wound certificate and also to PW8 Madhu who reached there, evidenced by Ext.P5 wound certificate, and in such circumstances, conviction of the appellants for the offence under Sections 452, 341 and 324 read with Section 34 of Indian Penal Code is also perfectly correct and warrants no interference.
5. The fact that deceased Meenakshi and PW1 Sujatha daughter of her sister were living in the same house along with PW4 the husband of Meenakshi and PW7 Santha was not disputed at the time of evidence. The appellants are also residing in the same colony. PW1 admitted that first appellant is her relative, being the son of her uncle. It is also clear from the evidence of PW1 that though Meenakshi was living with PW4 as his wife, she was earlier CRA 2000/09 14 married to another person. Similarly, PW1 admitted that fourth accused was her first husband and she left him and started to live along with Meenakshi and Sudish, her later husband. The fact that Meenakshi sustained burn injuries, when she was set fire after pouring kerosene is conclusively proved by the evidence of PW11, the doctor who examined her and prepared Ext.P7 wound certificate. Evidence of PW11 with Ext.P8 establish that at the time of autopsy 60% burns on the body of Meenakshi was found. Autopsy was at 12.30 a.m on 26/12/2001. The fact that death of Meenakshi was caused by the said burn injuries, is proved by Ext.P8 postmortem certificate. Dr.Mohammed Musthaque, who conducted the autopsy and prepared Ext.P8 postmortem certificate was not available for examination and therefore, it was proved through PW11, who was acquainted with the CRA 2000/09 15 signature of Dr.Mohammed Musthaque. When PW11 was cross examined, the cause of death stated in Ext.P8 postmortem certificate was not challenged. In such circumstances, it is conclusively proved that Meenakshi died due to the burns sustained on the night of 25/12/2001 from her house.
6. While Meenakshi was being treated as an inpatient at Government Hospital, PW12 Judicial First Class Magistrate recorded her Ext.P9 dying declaration. Though Dr.Deepa, who certified that Meenakshi was fully conscious and oriented and her dying declaration could be recorded, was not examined, the evidence of PW12 establish that PW12 was satisfied that Meenakshi was physically and mentally fit to give a dying declaration. Evidence of PW12 also establish that the fitness of Meenakshi to give dying declaration was certified by Dr.Deepa. In CRA 2000/09 16 such circumstances, when the prosecution has no case that Meenakshi at that time was not conscious or not mentally and physically fit to give a dying declaration, the statement of Meenakshi as to the cause of the burns sustained by her is to be taken as correct. The relevant portion of Ext.P9 reads;
"Fss Csse cm{Xn Btcm hsv s]mEn(XmWv. Fsb ho+np h(mWv s]mEn(Xv. Fsb ho+np R'D 3 t]cmWv. Fsb `@/mhpw Fsb A\nb/nbpw. Fsb ho+nsb ASp/pE Ipamc3 FsbmfmWv Fss as.. Hgn(v Xo I/n(Xv. _Tphq. Ah@ R'tfmSv C/ncn ]nW!sams!bpov."
("Yesterday night somebody caused burns. It was from my house. In my house there were three inmates, my husband, myself and my sister. It was Kumaran who is residing near to CRA 2000/09 17 my house who poured kerosene and set fire. He is not my relative. He was on inimical terms.") From this statement it is clear that case of Meenakshi, who sustained the burns was that it happened at her house on that night and it was Kumaran who poured kerosene on her and set fire. It also shows that the said Kumaran was her neighbour and that he is not her relative. If the said statement of Meenakshi is to be taken as correct, it can never be the first appellant as found by the learned Sessions Judge. Evidence of PW1 shows that first appellant is the son of her uncle. PW1 is the daughter of sister of Meenakshi. Therefore, necessarily, first appellant shall be a relative of Meenakshi. When Kumaran referred to in Ext.P9, is not a relative of Meenakshi as stated by her in Ext.P9, it cannot be the first CRA 2000/09 18 appellant. Pws.1,4 and 7 are all illiterate rustic witnesses. If first appellant is either known as Kumaran or called as Kumaran, being rustic witnesses when they give evidence they would have referred first appellant by name Kumaran and not Sabu. We find that neither PW1 nor PW4 mentioned the first appellant as Kumaran. Instead all of them specifically referred first appellant as Sabu. That itself indicate that first appellant is not Kumaran. There is absolutely no evidence to prove that first appellant was called Kumaran or known as Kumaran. None of the prosecution witnesses deposed that he was called Kumaran or known as Kumaran. True, PW13 Sub Inspector deposed that he arrested first appellant and in the remand report and arrest memo, he mentioned the name of the first appellant as Sabu @ Kumaran. But in cross examination PW13 admitted that he did CRA 2000/09 19 not make any enquiry as to whether first appellant is known as Kumaran or called Kumaran. PW13 also deposed that he is unaware whether there is any other Kumaran in that colony. The evidence of the other investigating officers also show that they also did not conduct any enquiry to find out whether there is any other Kumaran in the said colony and whether first appellant was known as Kumaran or called as Kumaran. In such circumstances, we cannot agree with the finding of the learned Sessions Judge that first appellant is also called Kumaran and therefore, mentioning of the name Kumaran in Ext.P9, alleging that it was Kumaran who poured kerosene and set fire to her, is not fatal to the prosecution case.
7. The entries in Exts.P5 to P7 wound certificates prepared by PW11 also strengthens said conclusion. True, PW11 at the time of his CRA 2000/09 20 evidence stated that he cannot say whether the name seen in Exts.P5 to P7, is Kumaran or Kannan. But a careful scrutiny of Exts.P5 to P7 establish that, as recorded therein, the alleged cause of injury sustained by PW1, PW8 and Meenakshi was caused by Kumaran and not Kannan. Second letter of the name of the accused in all the wound certificates is not 'a' but 'u'. So also there is 'r' in the remaining letters, which establish that what is recorded is not Kannan but Kumaran. If that be so, at the time of examination of Meenakshi, PW1 and PW8 what was disclosed to PW11 was that it was Kumaran and Sabu who caused the injuries recorded in the wound certificates, which strengthens the statement of Meenakshi before PW12 and recorded in Ext.P9 that it was Kumaran who poured kerosene and set fire on her. In such circumstances, we cannot accept CRA 2000/09 21 the findings of the learned Sessions Judge that it was the first appellant who poured kerosene on deceased Meenakshi and second appellant (third accused) set fire on her.
8. The first version with regard to the incident was given by PW1 in Ext.P1 FI statement. Though in Ext.P1 FI statement PW1 alleged that first appellant poured kerosene and set fire to Meenakshi, as stated earlier, being a rustic witness if first accused was known as Kumaran he would have been mentioned only as Kumaran being, the person who poured kerosene and set fire on Meenakshi. Whatever it be, as per the version in Ext.P1 the person who poured kerosene, set fire on Meenakshi and it could only be the same person and not two persons. Therefore, the evidence of PW1 to the contrary from the witness box that it was the first accused who poured kerosene and it was CRA 2000/09 22 the second appellant who set fire by lighting match stick cannot be true. At least the appellants are entitled to the benefit of doubt on the commission of offence under Section 302 read with Section 34 of Indian Penal Code.
9. Evidence of PW1, PW4 and PW7 establish that on the night of 25/12/2001 they were sitting on the varandha of their house, in 110 colony. Accused started consuming liquor in front of their house. It was objected to by Meenakshi. Though PW1, PW4 and PW7 were cross examined on this aspect, we find no material contradictions in their evidence. Their evidence that accused then started pelting stones on Meenakshi and others, is also trust worthy and reliable. Exts.P5 to P7 wound certificates with the evidence of PW11 corroborates the evidence of Pws.1,4 and 7 that appellants along with the remaining CRA 2000/09 23 accused trespassed into the house. But their evidence that first accused poured kerosene on the deceased and third accused set fire by lighting a match stick is not trustworthy, in the light of the statement of Meenakshi in Ext.P9. On the evidence we find no reason to disbelieve the evidence of PW1, PW4 and PW7 that appellants committed house trespass on that night. The evidence establish that appellants committed the offences under Sections 452 and 324 read with Section 34 of Indian Penal Code. As there is no acceptable evidence to prove that appellants wrongfully restrained Meenakshi or poured kerosene on her and set fire, the conviction of the appellants for the offence under Section 302 read with Section 34 and Section 341 read with Section 34 of Indian Penal Code, cannot be sustained. Appellants can only be convicted for the offences under CRA 2000/09 24 Sections 452 and 324 read with Section 34 of Indian Penal Code.
10. Then the question is regarding the sentence. Learned Sessions Judge sentenced appellants for the said offence to rigorous imprisonment for three years and one year respectively and a fine of Rs.3,000/- and in default rigorous imprisonment for one month. We find no reason to interfere with the sentence also.
Appeal is allowed in part. Conviction and sentence of the appellants for the offences under Sections 302 read with Section 34 and 341 read with Section 34 of Indian Penal Code by Additional Sessions Judge, Thalssery in S.C.622/2005 is set aside. They are acquitted of the offences. Their conviction and sentence for the offences under Sections 452 read with Section 34 and 324 read with Section 34 of CRA 2000/09 25 Indian Penal Code is confirmed. If the period of imprisonment for the said offences is already over and the fine is also paid, appellants shall be released from prison forthwith.
M.SASIDHARAN NAMBIAR, (Judge).
P.BHAVADASAN, (Judge).
uj.