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Anilkumar vs State Of Kerala on 27 November, 2019

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

6

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

7

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

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