Narendra Singh Bisth vs The State Of Kerala on 17 May, 2012

[Cites 11, Cited by 1]

Kerala High Court

Narendra Singh Bisth vs The State Of Kerala on 17 May, 2012

The sole accused in Sessions Case No.261/2007 on the files of the Addl. Sessions Court (Adhoc-I), Ernakulam is the appellant herein, challenging the conviction and sentence imposed under section 302 of Indian Penal Code. The appellant was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.5 lakhs and in default of payment to undergo rigorous imprisonment for 3 years. The trial court further directed that the entire fine Crl.Appeal 1068/2012 2 amount, if realised, shall be paid as compensation to the dependents of the deceased. Set off under section 428 Cr.P.C. was also permitted.

2. The prosecution case in brief is that, the appellant and the deceased are close friends, both hailing from the State of Uttaranchal. Both of them were working at the Naval Base, INS Venduruthy. The deceased was a Sailor and the accused was a Cook. On 12.10.2005, on the date of 'Dehra' festival, the deceased came along with the appellant to the house where the appellant is residing with his family, situated at Konthuruthy in Elamkulam Village, bearing Door No.CC.26/192 B of Kochi Corporation. They drank and dined together from the house. The deceased has not returned on that night and slept together with the appellant in one of the rooms in the house. The Crl.Appeal 1068/2012 3 wife of the appellant along with his son and 2 daughters slept in another room. At about 1.00 a.m. after mid night (on the early hours of 13.10.2005) the deceased attempted to molest the wife of the appellant (PW5) and on hearing the loud voice of PW5 the appellant got agitated and he, with an intention and preparation to cause murder of the deceased, had splashed Kerosene on him while the deceased was urinating in the bath room of the house, which is attached to kitchen; and lit fire by lighting a Match Box and thereby burnt the deceased. The deceased was rushed immediately to INS Sanjeevani Hospital in the Naval Base, Kochi and admitted therein. He succumbed to the burn injuries sustained, at about 10.45 a.m. On 22.10.2005; and the appellant thereby committed the offence punishable under section 302 IPC, is the Crl.Appeal 1068/2012 4 accusation.

3. The prosecution evidence consisted of the oral testimony of Pws 1 to 17, Exts P1 to 26 documents were marked and MO1 and MO2 series objects were identified. Ext.X1 to X1(d) were also marked. Exts. D1 to D3 were marked on behalf of the defence. The case in question was registered by the police based on Ext.P16 intimation received from INS Sanjeevani regarding the admission of the deceased with the burn injuries, at 1.00 a.m. on 13.10.2005. PW16, Sub Inspector of Police, registered Ext.P17 FIR based on the said intimation, noting the case as "Fire occurrence". In Ext.P17 it is mentioned that, eventhough an attempt was made to record a statement of the deceased, it could not be possible because he was admitted in the Intensive Care unit . PW16 submitted Crl.Appeal 1068/2012 5 Ext.P19 request before the Chief Judicial Magistrate Court, Ernakulam to take steps for recording the statement of the deceased, on 13.10.2015 itself. He had also submitted Ext.P18 report before the Additional Chief Judicial Magistrate Court for altering the case as one coming under section 307 IPC. Evidently Ext.P15 request was also submitted before the Additional Chief Judicial Magistrate Court, Ernakulam to take steps for recording the statement of the deceased by the Magistrate. Accordingly PW14, the then Additional Chief Judicial Magistrate, Ernakulam recorded Ext.P14 dying declaration of the deceased, based on which PW17 took over the investigation. He visited the site on 14.10.2005 and prepared Ext.P2 Scene Mahazar. A Kerosene can (MO1) was recovered from the house of the appellant by preparing Ext.P7 Mahazar. He conducted Crl.Appeal 1068/2012 6 investigation by recording the statement of witnesses. MO2 series dress and other articles owned by the deceased at the time of occurrence was seized from the hospital, by preparing Ext.P8 Mahazar. On 22.10.2005, on getting information about death of the deceased, PW17 conducted examination on the body and prepared Ext.P23 Inquest Report. He submitted Ext.P22 Report to the court altering the offence as one punishable under section 302 IPC. The accused in the case was arrested at about 2.30 p.m. on 14.10.2005 from Konthuruthy; vide Arrest Memo Ext.P21. PW17 concluded the investigation and laid the charge in the case.

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4. On re-appreciation of the entire evidence on record, this Court is convinced that the prosecution could not succeed in bringing any independent or direct evidence with respect to the act of the appellant in pouring Kerosene on the deceased and setting him to fire. PW1 to PW5, PW9, PW10, PW12 and PW13, who were cited as occurrence witnesses, turned hostile to the prosecution. But their evidence would corroborate the fact that the deceased sustained burn injuries from the house of the appellant on the date and the time as alleged by the prosecution. PW7, the Doctor who conducted the autopsy on the body of the deceased had deposed that, the deceased died of the burn injuries sustained and it could be caused by pouring Kerosene and by litting fire. The said version is supported by Ext. P9, the Post Mortem Certificate. But Crl.Appeal 1068/2012 8 there is no opinion expressed as to whether it is a homicide or suicide. Ext. P14 is the dying declaration of the deceased recorded by PW14, the Additional Chief Judicial Magistrate, Ernakulam, on 13-10-2005 at 4.30 p.m. The deceased had given statement that, on the previous day evening he had taken liquor and food along with the appellant at the house of the latter at Thevara and slept together with him during the night in a room in his house. According to him, the wife of the appellant was sleeping another room. He said that, during night he had a call of nature and was passing urine in the toilet. At that time, Kerosene was poured on his body from behind. When he turned back, the appellant lit a Match Stick and put the same to his body. He had seen the appellant when the latter had lit the Match Stick. His body caught fire and the Crl.Appeal 1068/2012 9 appellant ran away from the scene. He came to the road and sat there crying for help. At that time, two navy personnel who came there had called the police. The police came there had taken him to the hospital. The deceased had categorically stated that he does not know why the appellant had done like this. He said that there was no previous enmity between him and the appellant. PW14, while examined had deposed that, he had recorded Ext. P14 after obtaining an opinion from the Doctor who was attending the deceased and that the deceased was in a fit state of mind to give such a statement. He further deposed that the deceased had given the statement in Hindi which was translated by PW11, the duty Nurse and was recorded in Malayalam. Ext. P14 bears attestation of PW11 as well as the duty Doctor to the above effect. Crl.Appeal 1068/2012 10

5. PW15 is the Doctor who was working as Surgical Specialist at INHS Sanjeevini Naval Hospital at the relevant time. He deposed of having treated the deceased on the night of 12-10-2005 and on the early morning of the succeeding day. According to him, he came to the hospital on receiving call from the duty Doctor regarding admission of the deceased. He made categoric statement about the burn injuries sustained by the deceased and also about the details of the treatment administered on him at the Hospital. According to him, the Death Certificate was issued by him on 22-10-2005. PW15 had oproduced the entire Case Sheet relating to the treatment of the deceased at INHS Sanjeevini Hospital, which is marked as Ext. X1. The Death Certificate issued by PW15 is marked as Ext. X1 (a). The history alleged to have been narrated by the Crl.Appeal 1068/2012 11 deceased, which was recorded in Ext. X1 Case Sheet was identified by PW15 and marked as Ext. X1 (d). It would indicate that, according to the deceased, he was dining together with the appellant at his residence and at about 22.30 hours. When the deceased had gone to the toilet, the appellant spashed some liquor (Kerosence) and set him to fire with a Match Stick. On hearing his scream, son of the appellant who is 18 years old, rushed to the Bathroom and extinguished the fire. In the cross-examination of PW15 it is brought out that, the said witness had not given any statement to the police with respect to the alleged narrations made by the deceased about the cause of the injury or about recording of the alleged history of the cause of injury in the Sase Sheet. Advocate Sri. Sujesh Menon V.B., the learned counsel for the appellant contended that, Crl.Appeal 1068/2012 12 Ext. X1 is a document which could not be accepted as the same was not produced by the prosecution nor noticed at the time of the investigation. It is contended that the version put forth by PW15 regarding the narration made by the deceased and about recording of the history of the cause of injury sustained by the deceased, is an embellishment and such evidence could not be accepted, there being a clear omission to mention those aspects in the statement recorded under Section 161 Cr.P.C. However, on a perusal of the proceedings of the trial court, we notice that Ext. X1 Case Sheet was produced on the basis of summons issued from the Court to the Commanding Officer, Ins Venduruthi, Naval Base, Cochin, and it is marked through PW15. Contention of the appellant is that, the accused was denied of opportunity to Crl.Appeal 1068/2012 13 have access to the said document and it is not supplied to him along with the copy of the Case Diary. Further contention is that he was not put to notice about production of any such document. We notice that Ext. X1 is not a document forwarded to the Magistrate along with the final report of the police, filed under Section 173. Therefore, the non-furnishing of a copy of X1 along with the copy of the final report cannot be attributed against the investigating officer. Ext.X1 is a document summoned by the court on the request of the prosecution at the time of trial of the case. Evidently, a list of the witnesses and the documents to be summoned was filed with advance copy supplied to the accused and he was given proper notice about summoning of the document. Of course, the records would show that the appellant accused had opposed the Crl.Appeal 1068/2012 14 summoning and marking of the said document, through written objections filed. However, while giving evidence, PW15 had deposed that he is not remembering as to whether he had disclosed about Ext. X1 (d) to the Investigating Officer.

6. Learned counsel for the appellant contended that there are ever so many material discrepancies in the case put forth by the prosecution and in the evidence adduced in support of the same. It is pointed out that, the copy of the records submitted along with the final report contains a statement of the deceased which was recorded by PW16, from the hospital. We take note of such a document which is available in the records. The learned counsel pointed out that, the said statement contains a Crl.Appeal 1068/2012 15 different version that what is mentioned in the charge sheet and in Ext. P14 and X1 (d), as well as in the case framed against the appellant. The said statement was seen recorded by PW16, as if it is a statement given by the deceased, under Section 161 Cr.P.C. That statement, being one contains about the cause of the death of the deceased, had all the characteristics of a dying declaration, which is having evidentiary value under Section 32 (1) of the Evidence Act, 1872, is the contention. It is further contended that the non-production of such a document in evidence, will amount to a material suppression made by the prosecution. We notice that the version given by the deceased in the said statement is that, the appellant had poured Kerosene while he was sitting in the toilet. Crl.Appeal 1068/2012 16

7. Learned counsel also pointed out that, the records produced along with the charge-sheet contains the Wound Certificate issued by CW18, the duty Doctor, who examined the deceased at the time of his admission on 13- 10-2005 at 1.00 hors. On a perusal of the said document available in the records, it is revealed that the deceased was conscious and well-oriented at the time of the admission in the Hospital. It further reveals that he gave the history of the incident as one occurred at the house of the appellant. The history narrated to the doctor contained in the wound certificate is that at 22.30 hours on 12-10- 2005, he consumed alcohol along with the appellant and he was feeling dizzy and at the insistence of the appellant he agreed to stay back there for the night. It is said that, after a while, when he got up to go to toilet and was Crl.Appeal 1068/2012 17 proceeding, the appellant splashed some liquor on him and lighted. It is further stated that the appellant tried to push the deceased to the bathroom and closed the door. But he could come out of the room when the appellant's son helped him to put out the fire with water and blanket, and the son got engaged in a quarrel with the appellant. Eventhough CW18 was not examined, the Wound Certificate would indicate that the history narrated therein was given by the deceased. Therefore, this court is of the considered opinion that, such a statement made by the deceased before CW18 would also amount to a dying declaration, coming within the ambit of section 32 (1) of the Evidence Act. hence, there is suppression with respect to that material piece of evidence also.

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8. The learned counsel for the appellant also argued that, PW17, the Investigating Officer, while examined before the Court had given a version contrary to that contained in the charge-sheet. Our attention is drawn to the charge-sheet submitted, wherein it is mentioned that, while going to the toilet, leg of the deceased had touched the body of PW5, who is the appellant's wife and she cried aloud and that the appellant had a misunderstanding that the deceased had caused mischief on his wife. On the basis of such an impression the appellant had poured the Kerosene and set fire the deceased with an intention of murdering him. But we notice that, in the charge framed by the court, the allegation is that the deceased tried to molest PW5 and having agitated on that the appellant had committed Crl.Appeal 1068/2012 19 murder by pouring Kerosene on the deceased.

9. Apart from the above aspects, learned counsel for the appellant had pointed out the contents in Ext. D2 Remand Report, which was submitted by PW17 on 15-10- 2005, while producing the appellant before the Magistrate. The version mentioned therein is that, it is because of enmity towards the deceased for having talked to PW5 in an indecent manner while they were drinking and dining together that the appellant had set fire by pouring Kerosene at about 12.15 a.m. on 13-10-2005.

10. From the above narrated aspects it is clear that the prosecution had totally contradictory versions with respect to the motive, the provocation and the genesis Crl.Appeal 1068/2012 20 of the incident. There is also material suppression of the vital evidence in this regard. Smt. Jasmine, learned Public Prosecutor contended that, even without any proof regarding the aspect of motive or pre-meditation, the actual incident of pouring Kerosene by the appellant on the body of the deceased and litting him to fire, stands proved through Ext. P14, the dying declaration as well as through Ext. X1 (d), the history of the injury recorded in the Case Sheet by the Doctor who examined the deceased on the date of incident itself. It is settled that, when there is acceptable evidence regarding the incident itself, non- establishment of the motive is irrelevant. Therefore the question mooted for decision is as to whether the evidence adduced through Ext. P14 and Ext. X1 (d) can be accepted as genuine and reliable. The statements made by the Crl.Appeal 1068/2012 21 deceased with respect to the cause of his death assumes evidentiary value under Section 32 (1) of the Indian Evidence Act, 1872. The court has to give more credence to such statements, despite non examination of the person who made the statement. Section 32 put such statements on a different pedestal than the general category of hearsay evidence. It puts an exemption with respect to the acceptance of such evidence. While accepting such statement as genuine evidence, the court should exercise more care and caution. The court should bear in mind that there exists an impossibility to conduct test on the veracity of such statements on the touchstone of cross-examination. Therefore, the courts have to adopt other methods in order to satisfy its judicial conscience, that the dying declaration contains nothing but proof alone.

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11. In a decision of the honourable Supreme Court in Dandu Lakshmi Reddy v. State of A.P. (AIR 1999 SC 3255), it is observed that, the first among such tests is to scrutinise whether there are inherent improbabilities in that version. The next test is whether there is any inherent contradiction therein. If the dying declaration does not stand scrutiny when tested on the touchstone of credence and corroboration, , it will be unsafe to convict any person on the strength of such a fragile and rickety dying declaration. The honourable Apex Court in a subsequent decision in Sharda v. State of Rajastan (AIR 2010 SC

408), observed that, it is indicative of the fact that a man who is on a death bed would not tell lie to falsely implicate an innocent person. This is the reason in law to accept the veractiy of such statement. It is for this reason that the Crl.Appeal 1068/2012 23 requirements of oath and cross-examination are dispensed with. Besides, if the dying declaration is to be completely excluded in a given case, it may even amount to miscarriage of justice, as the victim alone being the eye- witness in a serious crime. The exclusion of such statement would leave the court without a scrap of evidence in such situations. But the court further observed that, it is to be kept in mind that the accused had no chance of cross-examination. Such a right of cross-examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness.

12. In yet another decision of the Apex Court in Uka Ram v. State of Rajasthan (AIR 2001 SC 1814), it was Crl.Appeal 1068/2012 24 observed that, such statements are admitted upon the consideration that those declarations are made in the extremity, when the maker is at the point of death and when every hope of this world has gone, when other every motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. The principle on which the dying declarations are admitted in evidence is based upon the legal maxim 'Nemo moriturus praesumitur mentire' i.e, a man will not meet his maker with a lie in his mouth. It is observed by the court that, it is essential for the court to insist that the dying declaration should be of such nature as to inspire full confidence of the court in its correctness. The Court is obliged to rule out all the possibility of the statement being the result of either tutoring, prompting or vindictive or the product of Crl.Appeal 1068/2012 25 imagination. Before relying upon a dying declaration, the court should be satisfied that the deceased was in a fit state of mind to make the statement. In the said decision, the Apex Court had refused to accept the dying declaration finding that the deceased has not referred to any situation which allegedly prompted the appellant to commit the crime.

13. The above settled legal precedents on the aspect of reliability of the dying declaration,was followed in the decision of this court in State of Kerala v. Moideenkutty Haji [1993(2) KLJ 515] and also in a recent decision rendered by a Division Bench of this Court, which is authored by one among us (Sudheendrakumar J.) in Ashraf and another v. State of Kerala [2015(3) KHC 578]. The dictum remaining settled on the question mooted for Crl.Appeal 1068/2012 26 consideration is that, a conviction solely depending upon dying declaration can be sustained only if the declaration inspires full confidence of the court with respect to its correctness. In ascertaining the genuineness or the veracity of the version contained in such declaration, it is mandatory that the court should rule out all possibility of the statement being made for extraneous reasons such as tutoring, prompting or vindictiveness or imagination. So also, it is necessary that such declaration should contain an acceptable reason which had allegedly prompted the appellant to commit the crime. On the facts of the case at hand, as discussed in the forgoing paragraphs, there exist a lot of inconsistencies and discrepancies on the version put forth by the prosecution relating to the incident which provoked the appellant to pour Kerosene on the body of the Crl.Appeal 1068/2012 27 deceased and to lit fire on him. While giving Ext.P14 statement the deceased pretended ignorance as to the reason for which the appellant had done the act. He reiterated that there is no enmity of any sort between the appellant and the deceased. Further, on an overall consideration of the dying declarations we feel that the same is not in the sequence of a natural narration of the incident made by the person who sustained very severe injuries and is about to death. As we already pointed out, there is material contradictions with respect to the genesis of the incident between the versions contained in Ext.P14, Ext.X1(d) the declaration given to PW16, and the history narrated to CW18 at the time of admission, etc. Therefore, we are of the considered opinion that, neither Ext.P14 nor Ext.X1 inspires confidence on the mind of this court to Crl.Appeal 1068/2012 28 accept it as nothing but truth and to rely the conviction solely based on such an evidence. The learned Sessions Judge has not considered the matter in the above perspective, while imposing the conviction under Section 302 I.P.C.

14. Result of the above discussion is that, the prosecution has not succeeded in establishing guilt of the appellant to sustain a conviction under Section 302 I.P.C. Therefore, the appeal is hereby allowed. The conviction and sentence imposed by the court below in the impugned judgment is hereby set aside. The appellant is set at liberty. He shall be released forthwith, if his continued detention is not required in any other case.

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The Registry will forward the gist of this judgment to the Superintendent of the jail concerned to facilitate compliance of the direction contained in the judgment, forthwith.

Sd/-

C.K.ABDUL REHIM, JUDGE Sd/-

B.SUDHEENDRA KUMAR, JUDGE dl/ani/8.6.16 // True Copy // PA to Judge

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