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Kerala High Court
Jose, S/O Varunni vs State Of Kerala, Represented By on 15 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
CRL.APPEAL NO. 1374 OF 2007
AGAINST THE JUDGMENT DATED 24.04.2004 IN SC 396/2003 OF
THE SESSIONS COURT, THRISSUR
APPELLANT/ACCUSED:
JOSE, AGED 50, S/O VARUNNI
KURUTHUKULANGARA HOUSE, PANAMUKU, NEDUPUZHA,
THRISSUR DISTRICT.
BY ADV G.SREEKUMAR (CHELUR)
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY
CIRCLE INSPECTOR OF POLICE, PUDUKAD POLICE,
STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA AT ERNAKULAM.
BY SMT.SEENA C., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 15.02.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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P.G. AJITHKUMAR, J.
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Crl.Appeal No.1374 of 2007
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Dated this the 15th day of February, 2024
JUDGMENT
The accused in S.C.No.396 of 2003 on the files of the
Sessions Court, Thrissur is the appellant. He stands convicted
as per the judgment dated 24.04.2004 for the offences
punishable under Sections 304 Part II and 498A of the Indian
Penal Code, 1860 (IPC). He was sentenced to undergo
rigorous imprisonment for a period of five years under Section
304 Part II and one year under Section 498A of the IPC.
2. The facts forming the basis for initiating the
prosecution are the following;
Smt.Clara, expired due to burn injuries on 04.06.2000. The
appellant was her husband. They were living together along
with their three children. At about 10.00 p.m., on 01.06.2000,
the appellant reached home drunk. There occurred a quarrel
between himself and Smt.Clara. Following that, the appellant
poured kerosene and lit fire on the body of Smt.Clara. She
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sustained burn injuries and in his attempts to bring out the
fire, the appellant also suffered burn injuries at his both limbs.
Smt.Clara succumbed to the injuries while undergoing
treatment at the Jubilee Mission Hospital, Thrissur.
3. On a charge based on the said facts for the offences
under Sections 302 and 498A of the IPC, trial was held. At the
trial PWs.1 to 13 were examined and Exts.P1 to P16 were
marked. MOs.1 to 11 were identified. During the examination
under Section 313 of the Code, appellant denied all the
incriminating circumstances. He has submitted a written
statement wherein, he maintained that there was no quarrel
between himself and the deceased. They were living cordially.
On the fateful day, fire was spread from the stove in the kitchen
and on seeing that he tried to bring her out the fire and in that
course, he also sustained burn injuries. It was he who took the
deceased to the hospital. He, thus, claimed that he was
innocent. Exts.D1 and D1(a) were marked as defence exhibits.
4. The trial court, after considering the evidence in
detail, found that the statements contained in Exts.P5, P8 and
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P10 are reliable dying declarations of the deceased. Together
with the oral evidence tendered by the prosecution and the
said dying declarations the prosecution proved beyond doubt
that it was the appellant who set ablaze the deceased and the
reason. The dissatisfaction in the matrimonial relationship was
proved to be the reason. It was also held that the evidence,
particularly the oral testimonies of PWs.1 and 2, who are the
children, sufficiently proved that Smt.Clara was subjected to
cruelty by the appellant. The appellant assails the said
findings and contends that the conviction is totally wrong and
not supported by sufficient evidence.
5. Heard the learned counsel for the appellant and the
learned Public Prosecutor.
6. The prosecution proposed to adduce evidence
regarding the cruelty meted out by the appellant and also
setting ablaze the body of the deceased after pouring
kerosene, through her successive dying declarations and the
evidence of PWs.1 and 2. PW1 is the elder and PW2 the
younger daughter of the deceased and the appellant. Both of
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them stated that their mother died due to burn injuries but
they did not support the case that it was the appellant who
set ablaze the deceased and also that the appellant harassed
and treated Smt.Clara cruelly. They were therefore, treated as
hostile to the case of prosecution. They were extensively cross
examined by the learned Public Prosecutor; but they stuck to
the stand that they did not see the appellant setting fire at
the body of the deceased. As regards the alleged cruelties
meted out by the appellant against the deceased also they did
not support the prosecution. They denied their statements
before the police in that regard.
7. When the evidence of PWs.1 and 2 is not available in
support of the case of the prosecution, it can depend only on the
dying declarations and the circumstances brought on record,
especially through PW6, a neighbor. The learned counsel for the
appellant vehemently contended that the dying declaration
cannot be believed owing to the inter se contradictions and also
the infirmities in recording Ext.P8 by the learned Magistrate,
PW10. It is pointed out that the statement regarding cause of
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injury in Ext.P6 wound certificate was materially modified by the
deceased while giving Ext.P10, F.I. statement. Ext.P8, the dying
declaration recorded by PW10, does not contain a proper
certification by the Doctor and further it is too brief and vague to
be acted upon as a dying declaration.
8. The trial court extracted the statement of the
deceased contained in Ext.P6 wound certificate. It is to the
effect that it was the appellant who lit fire at the body after
pouring kerosene. It was recorded by PW8 as the alleged
cause of injuries sustained by the deceased. He was not
expected to record a detailed description at that point of time.
However, in Ext.P10 F.I. statement, which was recorded by a
police officer, necessary details have been stated. Obviously,
PW12 would have elicited the details. However, it cannot be
said that anything unusual has been stated in Ext.P10. The
additional facts in Ext.P10 are explanations to the cause of
injury stated in Ext.P6.
9. Coming to Ext.P8, what is stated is only the act of
the appellant of pouring kerosene and setting fire. It was also
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Crl.Appeal No.1374 of 2007
stated that following a quarrel, the appellant lit fire. It was
noted in Ext.P8 as stated by the deceased that she was
unable to speak more. The learned counsel for the appellant,
pointing out the said last statement along with the
inappropriate way of recording certification by the Doctor,
canvassed to reject Ext.P8. It is true that the Doctor is
expected to certify prior to and after recording the dying
declaration as to the physical and mental condition of the
deceased. The purpose is to ensure that the person was in a
condition of giving rational answers.
10. PW10 got an endorsement in Ext.P8 that the doctor
examined Smt.Clara at 01.10 p.m., and he was convinced that
she was able to give rational answers to the questions put to
her and that she was in a fit state of mind to make a
statement. The doctor, PW11 testified before the court that he
had examined Smt.Clara before the learned Magistrate
recording her statement. This substantiates what is stated by
the Magistrate in the statement. He started recording the
statement at 01.10 p.m., which states that before starting
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recording of the statement, PW11 Dr.P.V.Narayanan examined
her. In the circumstances, it can only be said that there is no
impropriety in recording Ext.P8 by the Magistrate.
11. When the statement of the deceased as to the
cause of death in all the three statements, Exts.P6, P8 and
P10 are consistent, it cannot be said that the said dying
declarations suffer from any kind of infirmity. The same can
safely be relied on.
12. The dying declaration is to the effect that the
appellant set ablaze the deceased after pouring kerosene at
10.30 p.m., on 01.06.2000. The attending circumstances that
she, along with the appellant, was taken to the hospital by
PW6, a neighbor and the appellant also had corresponding burn
injuries render corroboration to the dying declarations. Hence,
the dying declarations can be based on to enter a conviction
even in the absence of any independent corroboration
concerning the act of putting the deceased at fire.
13. As stated, the only evidence the prosecution can
rely on to prove the cruelty meted out by the appellant
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against the deceased is the oral testimonies of PWs.1 and 2.
They did not state anything about cruel treatment of the
deceased by the appellant. In order to constitute an offence
under Section 498A of the IPC, the cruelty shall be one as
defined in the Explanation to Section 498A of the IPC. The
prosecution has no allegation even that the appellant acted in
such a way as to drive Smt.Clara to commit suicide or to
cause any injury endangering her life etc., or that there was
harassment with a view to coerce her or any of his relatives
to meet an unlawful demand. Going by the allegation there
were frequent quarrels and the appellant used to beat
Smt.Clara. Even to prove that allegation, there is no
evidence.
14. In the said circumstances, the conviction of the
appellant for the offence under Section 498A of the IPC is
unsustainable. Whereas, conviction of the appellant for the
offence under Section 304 Part II of the IPC is based on
sufficient evidence and therefore the said conviction is liable
to be confirmed.
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15. Accordingly, this appeal is allowed in part. The
conviction of the appellant under Section 498A of the IPC is
set aside. His conviction for the offence under Section 304
Part II of the IPC is confirmed.
16. The sentence imposed on the appellant for the
offence under Section 304 Part II is rigorous imprisonment for a
period of five years. The appellant is the father of three children
and mother is no more. From the evidence, it has come out that
the children are under the custody and guardianship of the
appellant. There is no one else to look after their affairs. In the
said circumstances, I am of the view that he deserves leniency in
the matter of sentencing. He was in custody pending the
investigation/trial from 31.07.2000 till 12.10.2000. He was also
in jail from 24.04.2004, on which date he was convicted till
01.08.2007, on the day on which the sentence was suspended.
Thus, he has undergone incarceration for more than 3½ years in
connection with this case. The sentence is confined to that
period.
Sd/-
P.G. AJITHKUMAR, JUDGE
dxy/dkr
