IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941
CRL.A.No.1217 OF 2015
AGAINST THE ORDER/JUDGMENT IN CP 73/2010 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -I,PERUMBAVOOR
AGAINST THE ORDER/JUDGMENT IN SC 511/2011 DATED 28-02-2015 OF
ADDITIONAL DISTRICT COURT SESSIONS COURT – VIII, ERNAKULAM
CRIME NO.621/2010 OF Kuruppampady Police Station , Ernakulam
APPELLANT/ACCUSED:
ANILKUMAR
AGED 45 YEARS
S/O.RAMAN NAIR, PONEKKUDY HOUSE, KARIPPELIPADY
BHAGOM, RAYAMANGALAM VILLAGE, RAYAMANGALAM KARA.
BY ADV. SRI.LAVARAJ M.G.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN-682 031.
R1 BY SR.PP MR.K B UDAYAKUMAR
R1 BY SMT.PRAICY JOSEPH SPL. GOVERNMENT PLEADER
OTHER PRESENT:
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.1217 OF 2015
2
JUDGMENT
Dated this the 27th day of November 2019
Hariprasad, J.
The appellant stands charge sheeted for uxoricide. On this
allegation, Kuruppampady police registered crime No.621/2010.
Ext.P10 is the F.I. Statement recorded by PW16, S.I. of Police on
26.09.2010 at 2’0 clock in the noon. According to the averments in
Ext.P10, the deceased herself deposed before PW16 that the
appellant, who is her husband, used to ill-treat her both physically and
mentally and on the fateful day, when she poured kerosene on her
body to deter him from torturing her, he set fire on her with a lighted
matchstick. She has emphatically stated that he did so with an
intention to kill her. It is her version that the incident happened at
about 9’O clock in the morning on 26.09.2010. On the basis of this
information, a crime was initially registered against the appellant
under Section 307 of the Indian Penal Code (‘SectionI.P.C.’, for short). Later,
when she died at 3 a.m on 27.09.2010, the crime was altered with
charges under Sections 498A and Section302 of IPC.
2. In order to establish the prosecution case, 21 witnesses
were examined on its side and 23 documents were marked. Ext.D1 is
CRL.A.No.1217 OF 2015
3
the defence document and DW1 is a doctor cited by the defence to
prove Ext.X1 series. Material objects are MOs 1 to 7.
3. We heard the learned counsel for the appellant and the
learned Senior Public Prosecutor.
4. It is an admitted fact that the appellant married the
deceased about 11 years before the incident and in the marital
relationship they were having a boy and a girl. PW3 is the son of the
appellant and deceased. Prosecution has a consistent case that the
appellant used to physically assault and mentally torment the
deceased frequently. It is also the case of the prosecution that the
appellant attacked her in a drunken bout making her life miserable.
On account of this ill-treatment meted out to the deceased, she had to
take shelter in her family house on many occasions and once she had
to stay along with her brothers (PWs 4, 10 and 11) for about one year.
Thereafter, the appellant went and patched up the disputes. The
deceased and her family members though that a real rapprochement
had arrived at between the parties. While so, on 26.09.2010 the
incident had happened.
5. This is a case wherein multiple dying declarations are
pressed into service by the prosecution. Ext.P10 F.I. Statement itself
is a dying declaration because by virtue of Section 32 (1) of the Indian
CRL.A.No.1217 OF 2015
4
SectionEvidence Act, 1872 (“SectionEvidence Act”, for short), it operates as a
statement made by the deceased indicating the cause of her death
and also the circumstances of the transaction which resulted in her
death. In addition to that, the prosecution would rely on the Ext.P1
dying declaration recorded by PW5 Sri.A. Ijas, Judicial First Class
Magistrate -I, Ernakulam, authorized by the Chief Judicial Magistrate,
Ernakulam to record the dying declaration. Furthermore, PWs 4, 10
and 11, who are the brothers of the deceased, also deposed that the
deceased had informed them of the fact that the appellant was
responsible for setting fire on her body when she was wet in kerosene.
This also would operate as dying declaration, if the prosecution
succeeded in proving the credibility of these witnesses.
6. Apart from the above dying declarations, we also find
testimony of PW3 Vishnu, who is the son of the appellant and the
deceased insinuating the appellant that he used to physically assault
her on flimsy reasons. Ext.X1 medical records caused to be produced
from General Hospital, Ernakulam and proved through DW1 also
shows that the deceased at the time of admission to hospital at 11
a.m. on 26.09.2010 narrated that burn injuries on her body was on
account of alleged assault by her husband (appellant) in the morning
on 26.09.2010 following which the deceased had poured kerosene on
CRL.A.No.1217 OF 2015
5
her and her husband set fire on her. We shall consider other medical
records also indicating a different version in the succeeding
paragraphs.
7. PW1 is a neighbour of the appellant and deceased. He
spoke to the effect that on 26. 09.2010 at about 9’O clock the incident
had happened. On that day, at 8 a.m., the deceased had gone to
PW1’s house and wanted some repairs to be done on the roofing sheet
on her house. At about 9 a.m., he came to the house of the appellant
and at that time he found the appellant quarreling with deceased. The
deceased even showed to PW1 a wound scar on her hand allegedly
caused by her husband on a previous occasion. In the course of
quarrel, the appellant pushed the deceased and she fell down. On
seeing this, PW1 left the place. At that time the appellant’s children
were playing in the courtyard. After a short while, PW1 heard a
scream from the appellant’s house and when he came back running,
found the deceased engulfed in fire and lying face down. Her dress
was completely burnt. PW1 immediately went to the house of PW2 and
procured a vehicle and he along with PW2 and the appellant took the
injured/victim to Government Hospital, Perumbavoor. Since the victim
had extensive burns, she was referred to General Hospital, Ernakulam.
After sometime, relatives of the victim came to General Hospital,
CRL.A.No.1217 OF 2015
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Ernakulam. In cross examination, this witness stated that when he
saw the victim, she was drenched as somebody had poured water on
her body to douse the fire. It is the version of PW1 in cross
examination that, while the victim was carried in PW2’s jeep, she was
murmuring that she need not be saved as she wanted to die. In cross
examination, the credibility of PW1 could not be shaken.
8. PW2 is the person in whose vehicle the victim was taken to
Government Hospital, Perumbavoor, initially, and then to General
Hospital, Ernakulam. He also stated in agreement with the testimony
of PW1.
9. PW3 is the son of the appellant and deceased. Appellant
was admittedly a lorry driver. The deceased was supporting her family
by doing manual labour. PW3 deposed that his father used to beat his
mother for silly reasons and it was a routine incident in the house.
According to his testimony, on 26.09.2010, when the deceased
complained that rafters of the roofing sheet were eaten by termite, the
appellant assaulted her. According to the testimony of PW3, since it
was a usual incident, he did not take much care. Thereafter, he went
out and on hearing a loud cry of his mother, he peeped through the
window and then found his mother burning. Immediately he took
water and poured, then his mother fell down. PW3 deposed that a can
CRL.A.No.1217 OF 2015
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containing kerosene and a matchbox were present in the kitchen at
that time. Appellant himself took the deceased out and laid her under
a water tap to douse the fire. PW3 emotionally deposed that, his
mother gave him a last kiss and asked the children to go to her family
house. On hearing the shriek by PW3, lot of neighbours converged
and the deceased was taken to hospital.
10. In cross examination also PW3 adhered to the versions that
his father used to beat his mother for silliest of the reasons. The
suggestion put by the defence counsel in cross examination, that he
was deposing against his father as tutored by his maternal uncles, is
strongly denied by PW3. PWs 4, 10 and 11 are brothers of the
deceased and brother-in-law of the appellant. All of them
harmoniously deposed that the marital life of the deceased was
miserable after euphoric period of one year. These witnesses deposed
that she had to seek help of her brothers on many occasions and had
to stay away from the matrimonial home for almost one year because
of the ill-treatment and harassment meted out by the appellant. It is
also deposed that the children had to be admitted in a school near the
family house. After one year, the appellant sought pardon from his
wife and took the deceased and children back to the matrimonial
home. Thereafter, the incident had happened. PWs 4, 10 and 11 would
CRL.A.No.1217 OF 2015
8
say that they had met their sister in an utter desperate condition in
General Hospital, Ernakulam and she had told them that when she
poured kerosene on her body to threaten the appellant, he shouted
that better the injured die and set fire on her body by throwing a
lighted matchstick. Even though in cross examination a suggestion
was made to these witnesses that they were having bitter enmity
towards the appellant, they in one voice said that their enmity towards
the appellant was only on the reason that he had continuously ill-
treated their one and only sister and made her life miserable.
11. Viewing from any standard, we cannot find any unnaturality
in these witnesses speaking against their brother-in-law, who had
continuously ill-treated their only sister. We find no reason to discard
the reliable testimony of PWs 4, 10 and 11 regarding the manner in
which the victim sustained burn injuries.
12. It is attempted to be brought out in cross examination that
there is some incongruity in the depositions of PWs 4, 10 and 11 about
the time they reached General Hospital, Ernakulam. According to
PW11, he reached the hospital only at 6 p.m. whereas PW10 would
say that he met PW11 at about 2 p.m. True, there is some incongruity
in the time of arrival of these witnesses to the hospital. But we find no
reason to disbelieve them on this minor contradictions and discard
CRL.A.No.1217 OF 2015
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their testimony regarding narration of the incident by the deceased
touching the cause of her death.
13. To crown all these things, we have to consider Ext.P1 and
the testimony of PW5. Ext.P1 is the dying declaration recorded by
PW5. From Ext.P1 it can be seen that PW5 had elicited answers from
the injured to understand her state of mind. He was satisfied that the
injured was in a fit mental and psychical condition to coherently
answer the questions put to her. Thereafter, relevant matters were
elicited from the victim by PW5. She narrated before PW5 that she,
along with the appellant and two children, stayed in their matrimonial
home at Rayamangalam. Appellant was a driver at that time. She
stated that the appellant was having acute drinking habits and he used
to assault her in intoxicated state. It is also deposed by PW2 that
there were criminal cases filed against the appellant in this connection.
This aspect is proved by the testimony of PW21, the Investigating
Officer as well.
14. According to her dying declaration, on 26.09.2010 at about
9’O clock in the morning appellant assaulted her in an inebriated
mood. He stamped on her chest. She deposed that their children were
playing outside. Apart from the appellant and victim, there was
nobody present in the house. When the assault became unbearable,
CRL.A.No.1217 OF 2015
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she took kerosene from a can kept in the kitchen and poured it on her
body. Immediately her husband lit her body with a burning
matchstick. She informed the Magistrate that the appellant used to
threaten to kill her. According to her version, 11 years of her marital
life was miserable except for the first year. Testimony of PW5 would
show the regularity and the correctness of recording Ext.P1
Statement. He deposed that before recording Ext.P1 dying declaration,
he got a certificate from PW14 Dr. K. Venugopal, working in the
General Hospital, Ernakulam. At that time, the patient was coherent
and oriented. PW14 also supports this version of PW5. Despite cross
examination, we find no reason to believe that the victim was not able
to depose before PW5 and Ext.P1 is vitiated in any manner.
15. As mentioned earlier, Ext.P1 has to be considered along
with Ext.P10 F.I.S., wherein also the victim has narrated the same
versions regarding the incident and she insinuated the appellant for
causing the burn injuries.
16. We may refer to certain other medical records produced in
this case, which tend to show a different version. PWs 7 and 8 are the
doctors, who had occasion to see the victim from Government
hospital. PW7, Dr. G.Manoj saw the victim on 26.09.2010 in General
Hospital, Ernakulam. He issued Ext.P3 certificate. As per Ext.P3, the
CRL.A.No.1217 OF 2015
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victim sustained burn injury when a stove burst from her house. But
Ext.P3 would show that the patient was brought by the appellant and
relatives. Similarly, PW8 is the doctor, who examined the victim from
Government Hospital, Perumbavoor. She issued Ext.P4 certificate. In
Ext.P4 also it is mentioned that the burn injury was sustained on
bursting a stove. But it is also mentioned therein that it was done with
an intention to commit suicide. At the time of recording Ext.P4 the
appellant was present.
17. The learned counsel for the appellant would contend that
these documents produced by the prosecution itself would show that
there is no consistency in the prosecution case. It is the definite case
of the appellant that may be on account of ill-treatment meted out,
the deceased with an intention to commit suicide could have poured
kerosene on her body and set herself on fire.
18. We do not find from the cross examination of material
witnesses that the accused, at any point of time has put forward a
case that the burn injury was on account of bursting of stove. In other
words, not even a suggestion is put to any of the prosecution
witnesses that fire happened on account of an accidental bursting of
stove. It is the consistent case of the appellant that she herself set
fire on her body after pouring kerosene. Therefore, we find no
CRL.A.No.1217 OF 2015
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significance in the testimony of PWs 7 and 8 and also Exts.P3 and P4.
It can only be considered as a version projected by the appellant to
safeguard his interest.
19. As mentioned earlier, PW16 recorded Ext.P10 F.I.S. which
can be treated as a dying declaration falling under Section 32 (1) of
the SectionEvidence Act. PW17 is the S.I. of Police, who registered the
Ext.P11 F.I.R. It is the specific case of PW17 and PW21, the
investigating officer, that immediately on receiving the information
about the incident, two police personnel were placed on guard duty.
The defence case that somebody must have tampered with the scene
is improbabilised by the unimpeached testimony of PWs 17 and 21.
Similarly, lot of questions were asked on the handwriting of the person
who recorded Ext.P10 F.I.S. while the victim was in hospital. It is the
case of PWs 16 and 21 that, a Woman Police Constable by name Rathi,
recorded the statement. According to the learned defence counsel,
there was no document produced to show that Woman Police
Constable, Rathi, also accompanied PW16 to the General Hospital to
record the statement of the victim. We do not find any reason to
disbelieve the testimony of PWs 16 and 21 that it was recorded by a
Woman Police Constable, who accompanied PW16.
20. Another contention raised by the learned counsel for the
CRL.A.No.1217 OF 2015
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appellant is that the victim must not have been in a position to affix
her left thump impression on Ext.P10 because she was having nearly
100% burn injuries. Documents including postmortem certificate
would show that she was having 96% burn injuries and only body
parts not affected by the burns were back of neck and bottom of feet.
It is therefore argued that she could not have affixed her thump
impression on Ext.P10. It is to be remembered in this context that we
are not supposed to examine the genuineness of thump impression of
the victim. The question is whether she had put her mark on Ext.P10.
This fact is emphatically spoken to by PW16. Going by Section 3 (56)
of the SectionGeneral Clauses Act, 1897, “sign”, with its grammatical
variations and cognate expressions, shall, with reference to a person
who is unable to write his name, include “mark”. It may be difficult to
believe that she did not put her finger on Ext.P10 after giving the
statement. Therefore, the credibility of Ext.P10 and the depositions of
PW16 and 21 in this regard cannot be challenged. Ext.P12 is the
postmortem certificate, which was proved through PW18. The victim
died due to extensive burn injuries.
21. Regarding the guarding of scene, one more aspect that is
borne out from record is the testimony of PW20, who was the
Scientific Assistant (Document), Regional Forensic Science Laboratory,
CRL.A.No.1217 OF 2015
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Thrissur. It is her version that she inspected the crime scene on
28.09.2010 and picked up certain dress materials from the floor-mat
in the kitchen as wells as from the adjacent hall. In cross examination
she deposed that there were police personnel on duty to guard the
scene at the time of her visit on 28.09.2010. Apart from this aspect,
the testimony of PW20 would show that a can containing kerosene and
matchbox were found lying scattered on the kitchen floor.
22. On a reconsideration of the entire evidence, we are of the
view that there are overwhelming materials on record to accept the
prosecution case that the appellant was responsible for igniting his
wife who was standing drenched in kerosene. It would appear from
the facts and circumstances that he did not waste that opportunity and
put a lighted matchstick on her, causing extensive burn injuries, which
ultimately led to her death. The defence case that this is a case of self
immolation cannot be accepted in the light of the credible dying
declaration in many forms appearing in evidence. Case of accidental
fire by explosion of stove initially tried to be developed was not
pursued by the defence at the time of trial. It is also came out in
evidence that the appellant made the life of the victim miserable
during their matrimony. According to the testimony of PW21, two
cases were pending against the appellant at the time of incident.
CRL.A.No.1217 OF 2015
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23. Having regard to the facts and circumstances of the case,
we find that the trial court has appreciated the evidence correctly and
entered a finding that the appellant is guilty of the offences under
Sections 498A and Section302 IPC. Notwithstanding the fact that the learned
counsel for the appellant tried to develop a case that the prosecution
evidence, if believed in its entirety, could only attract an offence under
Section 304 Part II of IPC, we are not impressed about the contention,
since we find no legal reason to apply any of the exceptions to Section
300 of IPC to bring the guilt under Section 304 Part II of IPC.
Therefore, we have no hesitation to hold that the appellant is guilty of
the offences under Sections 498A of IPC and also 302 of SectionIPC.
In the result, we find no merit in the appeal. Accordingly, the
appeal is dismissed.
Sd/-
A.HARIPRASAD
JUDGE
Sd/-
N.ANIL KUMAR
JUDGE
shg
