Kerala High Court
Paraman vs State Of Kerala on 4 February, 2004
Equivalent citations: 2004CRILJ3379, II(2004)DMC535
Bench: K.A. Abdul Gafoor, J.M. James
JUDGMENT Abdul Gafoor, J.
1. The sole accused in S. C. No. 17/98 on the file of the Sessions Court, Kozhikode is the appellant. He has been charged with offences punishable under Sections 498A and 302 of the Indian Penal Code for having committed murder of his wife Pushpa. He has been found guilty under those counts and convicted. On the first count, he has been sentenced to undergo rigorous imprisonment for one year and on the second count, he has been sentenced to undergo imprisonment for life. Therefore this appeal.
2. The prosecution case was that, on 15-3-1996 at about 5.30 p.m., the appellant/accused poured kerosene on his own wife Pushpa and set fire on her throwing a lighted match stick. The injured was taken to the Medical College Hospital, Calicut. While on treatment, she succumbed to the injuries on 22-3-1996 at about 4.15 p.m. It was also alleged that the appellant had been in the habit of causing mental and physical cruelty even prior to the occurrence towards his own wife, deceased Pushpa. It was on its basis that the appellant/accused has been charged as aforesaid.
3. The evidence consists of the oral testimony of P.Ws-1 to 21, documents Exts. P-1 to P-24 and M.Os. 1 to 4, viz., a packet of burnt clothes, kerosene bottle, match box and burnt match stick respectively.
4. There were no eye-witnesses to the occurrence. There were three dying declarations, as spoken to by PW-11, PW-5 and PW-13. On the basis of the circumstantial evidence and the oral testimony of the witnesses, the trial Court found him guilty, convicted and sentenced him as aforesaid.
5. It is submitted by the appellant that the dying declarations relied on by the Court below are not worthy to repose confidence in Court. There are discrepancies even with regard to the nature of the injury caused on the victim, as spoken to by her to the witnesses, who speak about the dying declarations. It is further submitted that none of the dying declarations disclosed before the Court below had been in first person. Therefore, it was not discernible as to what really the victim had told the witnesses. Hence, those dying declarations cannot be connected with any other evidence. It is further submitted that the post-mortem certificate, Ext. P-14, issued by PW-12, doctor who conducted the autopsy, discloses that the death had occurred due to burn injuries sustained by the victim which were complicated by pyemia. How did this complication arise? No evidence is available in the case. Therefore, it cannot be taken that the death was due to the burn injuries and not because of the further and subsequent complications. It is further contended that, as spoken to by various witnesses, while taking the injured to the hospital, the accused had also accompanied her. In such circumstances, it cannot be taken that he did have any intention to cause death. There was also no evidence with regard to any cruelty on his part towards his wife to find him guilty under Section 498A, IPC, except the evasive version given by PW-5. So, on any count, the conviction cannot be sustained.
6. Alternatively, it is contended that if at all a conviction is possible, it cannot be for committing murder, but only for manslaughter under Section 304, 1.P.C. In this regard, attacking the finding based on Ext. P-14 post-mortem certificate and relying on the evidence of PW-12, it is submitted that there was no evidence on record that the death was not due to any intervening circumstance. The decision reported in Kishore Singh v. State of M. P., AIR 1977 SC 2267 : (1977 Cri LJ 1937) is also relied on.
7. It is true that the doctor had deposed, the counsel for the appellant submits, that the burn injury caused was sufficient to cause death. Even in such circumstances, as nothing is brought out in evidence with regard to the intervening circumstances causing pyemia, the offence revealed is not one under Section 302, I.P.C. It can only come under Section 304, Part II of the I.P.C. In this regard, the decisions reported in Harish Kumar v. State (Delhi Administration), AIR 1993 SC 973 : (1993 Cri LJ 411) and Hari Shankar v. State of Rajasthan, AIR 1999 SC 2629 : (1999 Cri LJ 2902) are relied on.
8. On the other hand, it is submitted by the Public Prosecutor that the evidence on record is sufficient to conclude that the appellant was present all the while at the time of occurrence in his house. There is no reason to disbelieve the evidence of PW-5, the mother of the victim with regard to the cruelties by the accused towards the victim. The dying declarations spoken to by PWs-5, 11 and 13 and the wound certificate Ext. P-20 issued by PW-19 are sufficient enough to sustain the conviction. That the accused might have later attempted to save the deceased as is revealed by Ext. P-17 wound certificate and the version of PW-16 is not sufficient to escape conviction. It is further submitted, as is revealed by Ext. P-20 wound certificate, that there were 80% burn injuries. Treatment was given in one among the best hospitals available locally, the nearest Medical College. Therefore, there cannot have (sic) any failure in the treatment. The reasons shown in Ext. P-14 may be the obvious consequence of that much burn injuries. Therefore, there was no intervening circumstance and the death was caused only because of the burn injuries. The decision in Jagtar Singh v. State of Punjab, 1999 SCC (Cri) 120 : (1999 Cri LJ 20) is relied on. It is submitted that Pyemia is only septicaemia which can only be caused because of 80% of the burn injuries. The Public Prosecutor submits therefore that there is no reason to interfere with the conviction and sentence.
9. The contention raised by the appellant that he had never been present at the scene of occurrence and he came to his house hearing the hue and cry cannot be believed in the light of the evidence of PWs-1, 3 and 11. Of course, PWs-1 and 3 had turned hostile. That is only because they did not conform to their earlier version before the police regarding the dying declaration of the victim. But both of them had deposed before the Court below that they reached the house on hearing the hue and cry of the victim and at that time the appellant/accused was also present there. This is also spoken to by PW-11. In such circumstances the presence of the accused at the time of occurrence cannot be disputed.
10. P.W. 11 is a neighbour who was doing some work in the locality. He heard a hue and cry and rushed to the house of the victim. According to him, when he asked, the victim, who was crying with the burn injuries, had told him that appellant/accused had poured kerosene from out of the lantern and thereby she sustained injuries. It is true that he has not stated so when he appeared as a witness to Ext. P-13 inquest. Even then, there is no reason to disbelieve that dying declaration, especially when there is due corroboration by P.W. 5, the mother of the deceased. She came to the hospital, on being informed about the burn injuries of her daughter on the next day morning. She had been thereafter attending the victim all along until her death on 22-3-1996. According to her, when she came to the hospital, she asked the victim as to what happened and she had told her that the accused/appellant had poured kerosene and lighted fire on her. There is no reason to disbelieve this version also, even though there is slight discrepancy as to the manner of pouring of kerosene on her. It is true that P.W. 11 had stated that the victim had told him that the accused/appellant had poured kerosene from out of the lantern. P.W. 5 does not disclose as to how the accused/appellant poured the kerosene. P.W. 5 only stated that the victim had told her that the accused/appellant had poured kerosene on her. There is no real discrepancy between the two versions. Added to this, is the dying declaration recorded by P.W. 13 doctor.
11. P.W. 17 was the person who recorded the statement in the Medical College. Nothing is stated about the incident. He made Ext. P-18 requisition to the Superintendent of the Hospital for recording the dying declaration of the victim. According to him, he had attempted to contact the local Magistrate, but he was not available. As it will be a time consuming process to contact the Chief Judicial Magistrate to make appropriate arrangement for taking dying declaration, he thought it conducive to request the Superintendent of the Hospital to take the dying declaration. It was on its basis that P.W. 13 was entrusted the duty by the Superintendent of the Hospital. He had taken Ext. P-15 dying declaration. It is also in conformity with what P.Ws. 5 and 11 had stated. According to P.W. 13, the victim had told him that the appellant had poured kerosene and lit fire on her. There is no reason to disbelieve the version of P.W. 13 and Ext. P-15 dying declaration recorded by him. There is nothing unusual in Ext. P-15 on its perusal. Ext. P-20 wound certificate issued by P.W. 19, on admission of the victim in the Medical College Hospital also discloses that the deceased had told her about the incident. Of course, Ext. 20 has written in English except the words spoken to by the victim. It is in Malayalam itself. Obviously, as deposed by P.W. 19 he did not know how to write Malayalam. He did not know who had written it. He had also authenticated it. At the same time, it may not be possible for her to say who might have written it. Ext. P-20 also discloses the version given by the victim about the incident that her own husband had poured kerosene and lit fire on her. In such circumstances, these are sufficient enough to conclude that the accused-appellant caused the death of his wife.
12. P.W. 12 who conducted the postmortem examination and issued Ext. P-14 post-mortem certificate deposed before the Court below that the injury caused on the victim was sufficient in the ordinary course of nature to cause the death of the victim. But at the same time, Ext. P-14 post-mortem certificate disclosed that his opinion as to the cause of death was the burn injuries sustained by the deceased "complicated by pyemia". What is pyemia has not been explained through him. Medical dictionary discloses that pyemia may be either due to blood poisoning or septicaemia. Septicaemia is the result of the formation of pyemia and abscess. How the victim died is not explained. Is it because of the intervening causes between the date of injury and date of death, is not disclosed in the evidence. In such circumstances, merely because the doctor had opined that the injury caused is sufficient enough in the ordinary course of nature to cause the death, it will not be proper to fasten guilt under Section 302, IPC on the accused. In the decision reported in Kishore Singh v. State of M.P., AIR 1977 SC 2267 : (1977 Cri LJ 1937), it is found that: "Dr. C. N. Dafal (P.W. 13) who held the post-mortem examination was of opinion that death was due to injury to scalp and chest and its complications which were due to the same. He also opined that the injuries found on the dead body were sufficient in his opinion to cause death in the ordinary course of nature." Even in spite of that, in the said case, the Supreme Court was of the opinion that :
"The Court will have to judge objectively from the nature of the injuries and other evidence, including the medical opinion, as to whether the injuries intentionally inflicted by the appellants on the deceased were sufficient in the ordinary course of nature to cause death."
With this in view, the Supreme Court held that :
"Having regard to the entire evidence and the circumstances of the case and in view of the somewhat hesitant medical opinion with regard to the cause of death given by the three doctors and the further fact that the deceased died a month after the occurrence, we think that clause "3rdly" of Sec. 300, I.P.C. has not been established beyond reasonable doubt in this case." Accordingly, the Supreme Court found that:
"It is a fit case where the conviction of the appellants should be under S. 304 (Part I), I.P.C."
Thus, the medical opinion was not clear as to the intervening causes between the date of incident and the date of death. The Supreme Court found that it cannot be found that guilt under Section 302, IPC can be established. In this case also, as is revealed by Ext. P-14 post-mortem certificate, the opinion as to the cause of death expressed by P.W. 12 was the burn injuries complicated by pyemia. Even if it is septicamia as suggested by the Public Prosecutor, it can cause abscess and pyemia formation. The decision in Jagtar Singh v. State of Punjab, 1999 SCC (Cri) 120 : (1999 Cri LJ 20) cannot be of any help to sustain the conviction of the appellant herein under Section 302, IPC. There was sufficient evidence to disclose that septicaemia was the result of the injury caused on the victim in that case and the injury was inflicted by the accused himself. In this case, though the injury was inflicted by the accused, there was no evidence on record or explanation from P.W. 12 that the complication caused by pyemia was the natural consequence of the injuries and not because of any intervening cause. Therefore the offence for which the appellant can be convicted is under Section 304, IPC.
13. Relying on the decision in Hari Shankar v. State of Rajasthan, AIR 1999 SC 2629 : (1999 Cri LJ 2902), it is contended that the offence shall come only under Part II of Section 304, because there was no intention on the part of the accused to commit such bodily injury as is likely to cause death and there is no clear evidence to show that the death was as a result of the injury inflicted. In such circumstances, relying on the said decision, it is contended that the conviction shall only be under Section 304, Part II. That was a case where the appellant had thrown a burning stove while in a canteen on his friend who owed him Rs. 50,000/-. The facts and evidence are not seen discussed in the said decision.
14. Reliance is also placed on the decision in Harish Kumar v. State (Delhi Administration), AIR 1993 SC 973 : (1993 Cri LJ 411). That was a case where the doctor certified that the injury was sufficient in the ordinary course of nature to cause death coming within clause 3rdly of Section 300, I.P.C. On seeing the nature of the injuries and the gap between the infliction of the injury and the death, the Court found that there were no sufficient material as to the nature of the treatment given to the deceased during those two days. It was found that though the injuries had resulted in the death of the deceased, the Court was not able to conclusively say that it was sufficient to cause his death. Accordingly, the offence was found to be one under Section 304, Part II of IPC.
15. But in this case, unlike the one reported in Hari Shankar's case AIR 1999 SC 2629 : (1999 Cri LJ 2902) and Harish Kumar's case AIR 1993 SC 973 : (1993 Cri LJ 411), there was evidence through the dying declarations as discussed above from the victim herself that her husband, because of fury, poured kerosene on her and lighted I fire. In such circumstances, it cannot be ' taken that there was no intention to cause such a bodily injury as was likely to cause I death or that there was no intention to cause I death. The case in Hari Shankar's case AIR 1999 SC 2629 : (1999 Cri LJ 2902) arose because of a sudden fury on the part of one in throwing a burning stove on the other, when the latter did not pay back Rs. 50,000/-due to the former. The decision reported in Harish Kumar's case, AIR 1993 SC 973 : (1993 Cri LJ 411) was one where there was no sufficient evidence as to the nature of the treatment given to the deceased. In this case, the treatment was given in the best medical institution available, i.e. at the nearest Medical College Hospital. Therefore, we are not able to accept the contention of the appellant to convict him only under Part II of Section 304, IPC. Though the offence committed by the appellant will come only under Section 304, it shall have to be fitted in Part I thereof. Accordingly, we are of the view that the appellant is guilty of the offence punishable under Part I of Section 304, IPC. Hence, he shall have to be sentenced to undergo rigorous imprisonment for a period of 8 years.
16. P.W. 5 is the mother of the victim. She had also deposed about the earlier instances of cruelty as spoken to by the deceased. The version given by P.W. 5 discloses that the appellant was in the habit of committing cruelty towards his wife.
17. In such circumstances, the conviction by the Court below that the accused has been guilty of the offences charged against him under Section 498-A also cannot be said to be unjustified because there was wilful conduct on the part of the accused which is of such a nature as was likely to cause grievous injury or harm to affect her health. Accordingly, the conviction under Section 498-A is sustained.
Accordingly, allowing the appeal in part, we hold as follows :
(i) The conviction and sentence passed on the appellant under Section 498-A IPC is sustained.
(ii) The conviction and sentence passed on the appellant under Section 302, IPC are set aside and the accused-appellant is found guilty of the offence punishable under Section 304, Part I, IPC and is accordingly sentenced to undergo rigorous imprisonment for a period of 8 years.
(iii) The sentences shall run concurrently as held by the Court below.