Kerala High Court
Sakthidas vs State Of Kerala on 25 October, 2018
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
THURSDAY ,THE 25TH DAY OF OCTOBER 2018 / 3RD KARTHIKA, 1940
CRL.A.No. 682 of 2015
AGAINST THE JUDGMENT IN SC 326/2010 of SESSIONS COURT,
KOZHIKODE DATED 18-03-2014
CRIME NO. 429/2009 OF Chevayur Police Station , Kozhikode
APPELLANT:
SAKTHIDAS, S/O.RADHAKRISHNAN, CONVICT NO.2689,
CENTRAL PRISON, KANNUR,
PALLIKUNNU PO, KANNUR 670004.
BY ADV. SHERLYMOL THOMAS (STATE BRIEF)
RESPONDENT:
STATE OF KERALA
BY ADV. SR PUBLIC PROSECUTOR SRI.K.B.UDAYAKUMAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.10.2018, THE COURT ON 25.10.2018 DELIVERED THE FOLLOWING:
Crl.Appeal No.682/2015
-:2:-
JUDGMENT
Shaffique, J.
This appeal is preferred by the appellant Sakthidas challenging the judgment passed by the learned 1 st Additional Sessions Judge, Kozhikode in S.C. No. 326 of 2010 arising out of Crime No. 429 of 2009 of Chevayur Police Station.
2. The accused/appellant is the husband of the deceased Sheejamani. They got married on 06/07/2008 and it was a love marriage. Case of the Prosecution is that while they were living together at 13/546, Patrons Complex at Kuruvattoor, the appellant subjected her to cruelty by demanding gold ornaments and cash. On 09/11/2009, between 01.20 p.m. and 02.20 p. m., while she went to pass urine in the bathroom, the accused poured kerosene on her body and set fire keeping her inside the bathroom by locking the door. After sometime, the accused opened the bathroom and took her to Medical College Hospital, Kozhikode. While under treatment, she succumbed to the injuries. Prosecution alleged that the accused caused the death of Sheejamani by burns or otherwise than under normal circumstances within seven years of marriage by harassing her Crl.Appeal No.682/2015 -:3:- demanding dowry. He was charge-sheeted and tried for the offences under Sections 498-A, 302 and 304-B of the Indian Penal Code, 1860 (45 of 1860).
3. Prosecution examined witnesses PWs 1 to 18, produced documents and marked them as Exts. P1 to P18. They also produced and identified material objects as MOs 1 to 5. Accused was convicted under Section 302 I.P.C.
4. The learned Counsel for the appellant argued that the accused is innocent in this case. He is a man of good character. Even neighbours deposed that they have good opinion about him. His marriage with the deceased was a love marriage and he has taken care of her well. One child is also born in the wedlock. Their relationship was not strained. On the fateful day, due to unknown reasons, his wife tried to commit suicide. Hearing a cry, he came to the rescue of her. Immediately he poured water over her body and taken her out on his shoulder and brought her to the hospital. He did all that he could to save her. He left the hospital only in the evening due to the threat of the relatives of the deceased. The evidence adduced by the prosecution is concocted and the case is false. The trial Court acquitted the Crl.Appeal No.682/2015 -:4:- appellant both for offences under Sections 498-A and 304-B of the I.P.C. It shows that there is no proof for alleged dowry demand and cruelty. The dying declaration is pre-meditated one. It is not properly recorded as the deceased was not mentally or physically capable of giving it. The evidence given by PW2 is an omission and cannot be believed as she is a highly interested witness. The evidence are put forward by relatives of the deceased who were not happy with the appellant marrying the deceased. They have ill-will towards the appellant. He did not bring the kerosene. Prosecution has failed to prove any motive or intention on the part of the appellant to commit the crime. On the other hand, there are ample evidences to infer that she committed suicide. The case is a fabricated one.
5. On the other hand, the learned Public Prosecutor argued that this is a case in which a young woman of 31 years met her death at the hands of her husband whom she trusted and left her parents to live together with him. There is cogent evidence to prove the guilt of the accused. The depositions of witnesses and the dying declaration made by the deceased are reliable and they prove beyond reasonable doubt, the Crl.Appeal No.682/2015 -:5:- involvement of the accused in the murder of his wife. The depositions of witnesses corroborate the dying declaration made by the deceased. All the available evidence points to the guilt of the appellant and hence no disturbance be made to the just finding of the trial Court. According to him, the appeal is liable to be dismissed.
6. We heard both the counsel and perused the records.
7. After trial, the Sessions Court acquitted him for the offences under Sections 498-A and 304-B. To convict the appellant under Section 302 of the I.P.C., the Court primarily relied on the dying declaration of the deceased. The finding of the Court below is that other available evidence including medical evidence would corroborate the dying declaration and hence the appellant is guilty for the murder of his wife Sheejamani. The question to be determined is whether the trial Court was justified in convicting the accused relying on the dying declaration and other available evidence including medical evidence.
8. Coming to the evidence, Ext.P6 document shows that the deceased was married to the accused on 06/07/2008. Crl.Appeal No.682/2015 -:6:-
9. Evidence of PW3 that the accused and the deceased were living together in his apartment at Patrons Complex at Kuruvattoor which is the place of incident, is undisputed.
10. Depositions of witnesses proves that Sheejamani sustained burn injuries on 09/11/2009 between 01.20 p. m. and 02.20 p. m. and she was taken to Medical College Hospital, Kozhikode for treatment and succumbed to injuries after one month on 10/12/2009.
11. PW1 is the uncle of the deceased. He lodged Ext.P1 FIS before Chevayur Police on 12/11/2009.
12. PW8 is the Doctor who conducted the autopsy and issued Ext.P5 post-mortem certificate. She opined that the lady died of inhalational injury and 20% skin burns due to conflagration assisted by splash of inflammable liquid.
13. PW9 is the neighbour of the deceased and the appellant. She deposed that she heard a not-so-loud but crying sound from Sheejamani's house on 09/11/2009 at around 2.30 p.m. She shared the same to Ashitha who was conducting a beauty parlour near to her house. When PW9 returned to her house, again she heard the same kind of voice. Then PW4, PW9 Crl.Appeal No.682/2015 -:7:- and Aaikka went in front of the house of Sheejamani and knocked at the door. For five minutes, the door was not opened. Then appellant came and opened the door. Then he went inside the house and brought Sheejamani out. According to PW9, Sheejamani's face was found darkened. She was unable to speak. Her hand and face were burned. An auto was called and Sheejamani was taken to hospital. She entered into the house to take the little child and at that time she found a kerosene can and a match box in the bathroom. PW4 also deposed the fact that the appellant did not open the door for five minutes and his conduct was not one which reveals his intention to save the deceased, as he came out without her initially and only after seeing the neighbours he went inside to take her.
14. The Counsel for the appellant questioned the validity of the dying declaration and argued that it was tutored, pre- meditated and was recorded improperly. According to her, the Court below erred in relying upon it and convicting the accused. She further argued that the medical evidence supports her version rather than the version of the prosecution and at any rate the appellant is entitled to the benefit of doubt as two views are Crl.Appeal No.682/2015 -:8:- possible in this case. We went through the evidence to see the sustainability of those contentions.
15. PW15 is one of the Doctors who treated the deceased. He deposed that he recorded the endorsements in Ext.P11 on the basis of the contents in the case sheet. She was suffering from more than 40% burns and her condition was grievous. He further deposed that Sheejamani was not on sedatives and could speak only after closing tracheostomy tube. He deposed that Sheejamani was conscious and oriented. Under these circumstances, he certified that the deceased was fit and sound while her dying declaration was recorded. He aided PW14, the Magistrate, to record the dying declaration of Sheejamani by closing tracheostomy tube.
16. PW14, the Judicial First Class Magistrate, Kunnamangalam recorded the dying declaration of the deceased. On the basis of the certification of PW15, the Doctor and based on his own satisfaction, he deposed that the lady was sound in mind and conscious to give the statement.
17. It is seen that Ext.P11 dying declaration is not under serious challenge in terms of the maker or the manner in which it Crl.Appeal No.682/2015 -:9:- was recorded. Nothing is brought out to show that the maker was influenced by somebody else or was tutored. PW15 deposed that the deceased was in a fit condition to give statement to the learned Magistrate. The evidence of PW14, the Judicial First Class Magistrate, Kunnamangalam also shows that Sheejamani was sound in mind and conscious to give statement. He obtained the thumb impression in Ext.P11 which also is not disputed. The evidence on record shows that the deceased gave Ext.P11 while she was sound and conscious. She indeed intended to inform the Magistrate and it was free from any infirmities.
18. As stated earlier, whether the burn injuries found on the deceased were self-inflicted or done by the appellant was hotly contested before us. The counsel for the appellant vehemently argued that the pattern of injuries indicate the possibility of deliberate self-harm. She relied on the opinion of PW8 Dr. Sherly Vasu, who conducted autopsy and issued post- mortem certificate. PW8 opined that the pattern of burn injuries seen on the deceased is consistent with deliberate self-harm rather than by another person. Ext.P5 post-mortem certificate is issued by PW8. It shows the following injuries on the person of Crl.Appeal No.682/2015 -:10:- the deceased:
"Singeing of scalp hair on the hairlines at front and sides.
Dermo epidermal burns.
Face, ears and front of neck, front of chest over the right 4/5th (extreme left escaped burns) front and outer aspect of whole of right upper arm, elbow, forearm and right palm.
Small areas on back of right upper arm (lower half) Small areas on outer border of right forearm (middle).
Back of left wrist and hand.
Small areas on front of left upper arm (7.5x2cm) 5 cm below shoulder.
Small area inner aspect of left elbow (4.5x4.5cm) Small areas (6x4 cm) front to left wrist and hand. An area 15x29cm transverse on front of abdomen (midriff area).
Small scattered areas on front of thighs. Total area
-20%
19. Also there are difference in the opinion given by PW8 and PW15 regarding the application of tracheostomy tube on the deceased. It throws doubt on the very validity of the dying declaration. There is no eyewitness in the case. According to the appellant, the above injuries are possible only by attempt of self- harm and therefore, the benefit of doubt should go to the Crl.Appeal No.682/2015 -:11:- appellant.
20. Learned Public Prosecutor argued that PW15 is the Doctor who treated the deceased and his evidence is in tune with other witnesses like PW14, regarding the application of tracheostomy tube on the deceased. It is settled law that when there is different opinion regarding medical evidence, the one which go with the ocular version need to be relied on. According to the learned Public Prosecutor, the burn injuries found on the deceased are not the result of self-harm, but are intentionally caused by the appellant herein. He placed reliance on the opinion given by PW15. According to PW15, if a person pours kerosene on the person sitting in a European closet and set ablaze by lighting matchstick, usual chance of burns may be on face, front of neck, front of chest, abdomen, eyes and front upper limbs. The injuries herein are pointing only towards this theory and not to self- inflicted harm. The medical evidence amply corroborates the dying declaration made by the deceased at her death-bed.
21. It is true that there is difference of opinion in the medical evidence. But it can be seen that the nature of injuries - on examination in the light of other evidence and the case put Crl.Appeal No.682/2015 -:12:- forward by the prosecution and the defence - probabilize the version of prosecution and negate the defence case. As rightly pointed out by the learned Public Prosecutor, out of the two medical opinions, the one deposed by PW15 inspires our confidence as it is in line with the other evidence available in this case. It is pertinent to note that much burns are not seen on the upper part of the head of the victim. It heavily negates the theory of the appellant that the burns were deliberate self-harm. Hence, we are of the view that prosecution brought in sufficient evidence to indicate that the death was not a suicide but an attempt by the appellant to burn the victim alive.
22. It is settled law that when it is found that the dying declaration is reliable and credible, it alone is sufficient to base the conviction.
23. It is in evidence that at the relevant time, there were only appellant, deceased and their little child in the house. The appellant did not have a case that some other person committed or might have committed the offence.
24. The explanation of the accused for his disappearance from the hospital on the very same day of the incident was that Crl.Appeal No.682/2015 -:13:- one Kishore, the husband of Sheejamani's sister, threatened him. After the incident, for one month, he not even enquired about the fate of his wife. His explanation for his absence are quite unbelievable and hence rightly rejected. The FIR was lodged only on the third day of the incident i.e., on 12/11/2009. Even in the FIS, the informer entertained the impression that the death might be a suicide. So, the alleged intimidation in the evening of the date of incident is not credible. The absence of the appellant from the company of his wife, when she needed his presence and care utmost is an additional circumstance which goes against him.
25. Now the only question remaining is whether the trial Court was justified in convicting the appellant under Section 302 of the I.P.C.
26. It is proved that the appellant poured kerosene and set her ablaze. The motive for which he had done it, is known to him alone. He locked the door of the bathroom for quite sometime. It is evident that as a man of prudence, he should be knowing that his acts mentioned above would be likely to cause the death of the victim. These would show the knowledge of the Crl.Appeal No.682/2015 -:14:- accused to cause such bodily injury as is likely to cause death of his wife by burning.
27. At the same time, it is also in evidence, even in the dying declaration, that the appellant poured water over Sheejamani and brought her to hospital. He was there till in the evening. All these conducts along with attending circumstances is not revealing the evil heart of a cold blooded murderer. There is no evidence to prove a premeditation to commit murder. Therefore, we are of the view that the accused may not have committed murder, whereas his acts would surely fall for punishment under Section 304 Part II of I.P.C., which reads thus:-
"304. Punishment for culpable homicide not amounting to murder:-Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely Crl.Appeal No.682/2015 -:15:- to cause death."
28. It is trite law that Section 304 Part II comes into play when the death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death (Satish Narain Sawant v. State of Goa [AIR 2009 SC (Supp) 2635].
In the result, the appeal is partly allowed. The conviction and sentence passed by the trial Court under Section 302 is set aside. The appellant is convicted under Section 304 Part II of the I.P.C. and sentenced to undergo rigorous imprisonment for seven years. He shall be released from prison, if he has already undergone the period of sentence.
Sd/-
A.M.SHAFFIQUE Judge Sd/-
P.SOMARAJAN
Rp //True Copy// Judge
PS to Judge