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State Of Kerala vs Joy on 22 January, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR. JUSTICE A.M.BABU

TUESDAY ,THE 22ND DAY OF JANUARY 2019 / 2ND MAGHA, 1940

CRL.A.No. 678 of 2014

AGAINST THE JUDGMENT IN SC 2244/2006 of ADDITIONAL SESSIONS
COURT – VI, THIRUVANANTHAPURAM DATED 13-09-2013

CRIME NO. 220/2003 OF Poojappura Police Station,
Thiruvananthapuram

APPELLANT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE,
MUSEUM POLICE STATION.

BY ADV. SR. PUBLIC PROSECUTOR SRI.S.U.NAZAR

RESPONDENTS/ACCUSED:
1 JOY
S/O.XAVIER, BINDHU VILASAM VEEDU, PARAYIL COVIL,
THIRUMALA – 695 006.

2 OMANA
D/O.CHELLAMMA, BINDHU VILASAM VEEDU, VALIYAVO;A.
THIRUMALA – 695 006.

BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
16.01.2019, THE COURT ON 22.01.2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.678/14

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JUDGMENT

Shaffique, J.

State of Kerala preferred this appeal challenging the verdict

passed by the 6th Additional Sessions Judge, Thiruvananthapuram

in S.C. No. 2244 of 2006 by which both accused were acquitted of

all the charges levelled against them.

2. Prosecution case as seen in the impugned judgment is

that the first accused and the deceased were husband and wife

and they were residing at Bindu Vilasom Veedu, Parayil Colony,

Valiyavila, Thirumala, Thiruvananthapuram. Two children were

born in their wedlock. At the time of marriage, the parents of the

deceased Bindu had given `50,000/- (Rupees Fifty Thousand only)

towards her share. In return, the 2 nd accused and others executed

a document in the joint name of the 1st accused and the

deceased in respect of 2½ cents of landed property and a part of

their family house. Bindu applied before authorities for the

construction of a residential building in the said land under a

Government scheme. In response to the said application, the

authorities had taken steps. While so, the accused came to know
Crl.Appeal No.678/14

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that a new residential building could be constructed only after the

demolition of part of the building which had been given in the

joint name of A1 and the deceased. So, they opposed the plan for

constructing new building in the said property. On 05/11/2003,

the officials came to the property to measure out the same in

consequence of the application submitted by the deceased. So,

the accused picked up quarrel with the deceased and ill-treated

her physically and mentally. Out of mental agony, the deceased,

on 08/11/2003, at about 09.00 a.m., while she was in the kitchen,

attempted to commit suicide and doused kerosene on her body

and set fire and thereby sustained burn injuries. She succumbed

to the said injuries on 21/11/2003. The allegation was that the

accused had ill-treated the deceased physically and mentally in

furtherance of their common intention, which prompted her to

commit suicide.

3. FIR was lodged by PW1 on 21/11/2003 at about 10.45

p.m. to PW7 the S.I. of Police, Poojappura Police Station and

Crime No. 220/03 was registered under Section 174 of the Code

of Criminal Procedure, 1973 (for brevity ‘Cr.P.C.’). Police filed final

report charging accused for offences under Sections 498A and
Crl.Appeal No.678/14

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306 read with S.34 of the Indian Penal Code, 1860 (for short

‘IPC’). Trial Court originally framed charge against the accused for

offence under the above Sections. Subsequently, on an

application CMP No.326 of 2013 filed by the Additional Public

Prosecutor, the trial Court framed an additional charge against

the 1st accused alleging offence under Section 302 also.

4. CWs 1, 2, 3, 15, 13, 11, 18 and 19 were examined as

PWs 1 to 8. Exts.P1 to P9 documents were marked and MO1 to

MO3 were identified on the side of the prosecution. CW4 and

CW17 were no more. CWs 5, 6, 7, 8, 9 and 16 were given up. PW1

to PW3 were re-called and re-examined. Both sides conceded that

PW4 need not be re-called and re-examined.

5. During 313 examination, both the accused denied all

incriminating evidence against them. They jointly filed additional

statement as under: The deceased committed suicide as she

suffered a lot from her family. A letter allegedly written by her

was produced along with the additional statement. As per the

order of the Family Court, Thiruvananthapuram in OP

No.322/2004, the child was given to the custody of the 1 st

accused and because of that enmity, the mother of the deceased
Crl.Appeal No.678/14

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deposed against the accused before the Court. The accused

pleaded innocence. The letter produced is not marked by the

defence. No evidence was adduced by the defence, apart from

Exts.D1 to D3 contradictions being marked through PW2.

6. The learned Public Prosecutor Sri.Udayakumar argued

that the Court below erred in appreciating the available evidence

in this case. Evidence of PW1 to PW3 were brushed aside by the

trial Court citing flimsy reasons. Their evidence is reliable.

Medical evidence also corroborates their version. The Court below

ought to have found the accused guilty. Of course, there are flaws

in the investigation. By placing reliance on the decision of the

Apex Court in State of Karnataka v. K. Yarappa Reddy (AIR

2000 SC 185), he contended that flaws in investigation should not

fetter the Courts of justice from administering justice when there

is reliable evidence before them. He argued for a reversal of

finding and imposition of sentence in accordance with law.

7. On the contrary, the learned counsel appearing for and

on behalf of the accused, Sri.Sasthamangalam S.Ajithkumar

submitted that the Court below is fully justified in arriving at its

conclusion. The accused are innocent and they are falsely
Crl.Appeal No.678/14

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implicated in the case. Prosecution miserably failed to prove the

case beyond reasonable doubt. Evidence of PW1 to PW3 are full

of contradictions and embellishments. Court below rightly

rejected their version. Even medical evidence did not favour

prosecution story of homicide. The appeal is devoid of any merit

and it has to be dismissed, he argued.

8. This is an appeal against the acquittal verdict passed

by the trial Court. It is well settled that unless there are

compelling reasons like perversity, unreasonableness etc., the

appellate Court is not expected to disturb a probable view taken

by the trial Court in a judgment of acquittal. The question to be

looked into is whether the view taken by the Court below is a

probable view in the light of available evidence in regard to both

the accused. For the same, we have to consider the entire

evidence afresh.

9. Evidence in short are as under:

PW1 is the younger sister of the mother of the deceased.

PW2 is one of the neighbours of the deceased and is an

independent witness. PW3 is the mother of the deceased. Ext.P2

is the copy of petition submitted by PW3 to the Chief Minister in
Crl.Appeal No.678/14

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connection with the offence. PW4 is the Medical Officer who

conducted the post-mortem of the deceased and he issued Ext.P3

certificate. PW5 is the Doctor who treated the victim at Sree

Krishna Hospital, Thirumala. Ext.P4 is the treatment certificate

dated 22/04/2004 issued by PW5. PW6 is the Secretary of

Sahodara Samajam of local N.S.S. Karayogam. Ext.P5 is the

marriage certificate dated 08/04/2004 issued from the said

Samajam. PW7 is the ASI, Poojappura who recorded Ext.P1 FIS of

PW1 based on which he registered Ext.P1(a) FIR and conducted

part of the investigation. PW8 is the then C.I. of Police, Museum

Police Station who prepared Ext.P6 inquest report dated

22/11/2003, prepared scene mahazar, the carbon copy of which

is marked as Ext.P7. Ext.P8 is the report regarding the alteration

of the Section and the name and address of the accused. Ext.P9

is the recovery mahazar dated 08/04/2004. He also seized MO1

nighty and MO2 underskirt worn by the deceased. MO3 is a can of

5 litres capacity which is green in colour. PW8 completed the

investigation and filed final report before Court.

10. It is admitted that there is no direct evidence in the

case. Prosecution relied on certain circumstances to prove the
Crl.Appeal No.678/14

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guilt of the accused. PW1 to PW3 were examined to prove the

immediate circumstances that led to the death of the victim.

They relied, inter alia, the following circumstances to prove the

guilt of the accused:

(i) The deceased, the 1st accused and the minor children

alone were there in the house at the time of the incident.

(ii) A1 did not attempt to extinguish fire though the

deceased was found burning.

(iii) Three days prior to the incident, A1 and A2 picked up

quarrel with the deceased.

(iv) The minor children made hue and cry at the time of

the incident. A1 who was the only adult person present at the

time of the incident in the house, did not make any hue and cry.

11. Court below held that the prosecution failed to prove

the core circumstances of the case to its satisfaction. All the

evidence including the oral evidence of witnesses PW1 to PW3

were disbelieved by the Court below. It had arrived at a

conclusion that the prosecution failed to prove the case against

the accused beyond reasonable doubt.

12. Court below came to a conclusion that prosecution
Crl.Appeal No.678/14

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failed to prove beyond reasonable doubt how the death of the

victim occurred. Prosecution neither proved it to be a homicide

nor a suicide by adducing evidence. Ext.P1 and evidence of PW5

would indicate that the death was accidental. None of the

witnesses had a case of homicide at the time of incident or during

the time when the victim was alive with capacity to depose.

Evidence of PW5 would show that the victim was admitted in his

hospital at Thirumala on 08/11/2003 at about 09.00 a.m and he

referred the patient to Medical College Hospital,

Thiruvananthapuram on 08/11/2003 itself and she was shifted to

MCH only on 09/11/2003 morning. Ext.P5 is the case sheet issued

by PW5.

13. PW4 is the Doctor who conducted post-mortem

examination on the corpse of the deceased. Ext.P3 is the

certificate issued by him. He deposed that the following ante-

mortem injuries were noted in the body as burns over an area:-

“1. Burns over an area a) 16×16 cm on the front of neck
and adjoining part of under chin region in midlilne. b) 26
x 23 cm on outer aspect of right side of trunk 8 cm
outer to midline and 20 cm below collar bone. c) 30×15
cm on right side of back of trunk 12 cm below top of
shoulder and just outer to midline. d) involving whole of
Crl.Appeal No.678/14

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right upper limb e) 25×11 cm on outer aspect of right
thigh 30 cm below top of hip bone. f) whole of right leg,
knee and an area 17 x 15 cm on the inner aspect of
lower part of right thigh adjoining to knee. g) involving
lower 2/3rd of left thigh and whole of left leg.”

14. The death was due to septicemia following burns. The

opinion evidence of PW4 is not fully supporting the prosecution

case. According to him, the burns in this case are involving

mainly the right side of the body. Left side, head and face are not

burned. He denied the suggestion put by the Prosecutor that the

said injuries could be caused due to pouring of kerosene over the

head of the victim. It can be seen that to a question regarding the

possibility of the kerosene being accidentally falling from MO3

kerosene container from hip level of the victim, PW4 deposed that

the burns are seen involving the lower and upper part of the

body. Thus, medical opinion adduced by the prosecution only

shows some possibilities. In our view, it did not fully probabilize

the prosecution case.

15. Admittedly, the incident happened on 08/11/2003 at

about 09.00 a.m. According to the prosecution, the victim, the 1 st

accused and their two children were present in the house at the
Crl.Appeal No.678/14

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time of the incident. Ext.P1 is the F.I. Statement given by PW1

who is the younger sister of the mother of the deceased. Court

below did not place reliance on the statement given by PW1 in

Court citing the reason that she did not have such a case during

the stage of investigation. Ext.P1 is totally silent even as to the

quarrel between the 1st accused and the deceased much less the

alleged setting ablaze of the victim by the 1 st accused which she

deposed in Court. The cause of incident stated in Ext.P1 is that

while the victim was doing household works at kitchen, a can

containing kerosene placed above the stove fell on her

accidentally and as a result of which kerosene fell on her body

and she got burned. PW1 clearly stated in Ext.P1 that the victim

was conscious for almost 13 days i.e., from the date of incident

till her death. PW1 also stated that she entertained no suspicion

regarding the incident. She also stated that she caught fire from

the back side. How the fire is caught on the victim is not deposed

to by PW1. She does not even have a case during examination in

Court that the 1st accused is the one who set ablaze the victim.

Her version is that at the time when the victim disclosed that the

1st accused set her ablaze, PW3 was also present. PW1 admitted
Crl.Appeal No.678/14

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that he had signed on a written paper in the Police Station. We

find no error with the trial Court in disbelieving the version of

PW1 as a subsequent embellishment, seeing obvious

inconsistencies.

16. PW3 is the mother of the deceased. She deposed to

the circumstances that resulted in the death of her daughter. She

lodged Ext.P2 complaint on 23.01.2004 to the Chief Minister of

Kerala seeking relief in the matter. According to her, the 1 st

accused informed at her neighbouring house over phone that the

deceased had sustained burn injuries and was hospitalized. She

reached the house of the deceased, but nobody was there.

Kerosene was seen spread in the kitchen area. She went to Sree

Krishna Hospital and asked 1st accused what had happened. He

did not reply. It is her version that she asked the victim about the

incident and the victim replied that the 1 st accused doused

kerosene on her body and as she came out of the house to take a

bath, the 1st accused called her back for preparing tea for him

and when she entered into the kitchen, she got fire. The 1 st

accused played television and tape recorder in loud volume. It is

her further version that the victim told her that she should not
Crl.Appeal No.678/14

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disclose it to anybody else. The victim asked PW3 to take her

children with PW3. According to PW3, two days prior to the

incident also, the 1st accused assaulted the victim. Ext.P2 is the

complaint lodged by PW3 after two months of the incident.

Specific allegation in Ext.P2 is that, in the morning on

08/11/2003, the 1st accused physically assaulted the victim and

when she had become shattered and weak, he poured kerosene

on her body and as she was trying to run away, the 1 st accused lit

a match box and threw at her and fire caught from her back side

and the 1st accused drew the victim to the kitchen and set her

ablaze. But it can be seen that PW3, who is the mother of the

victim, did not venture to lodge a complaint immediately to the

authorities in spite of allegedly getting such crucial information

about the death of her daughter that too from the mouth of her

injured daughter. Only after two months, she had a case of

homicide against the 1st accused in Ext.P2. At the time of

examination in Court, she had a different narration of the

incident. We find sense in the conclusion of the trial Court that

the testimony of PW3 is not believable as such.

17. PW2 is a neighbour of the deceased. According to her,
Crl.Appeal No.678/14

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on 08/11/2003, at about 09.00 a.m., she heard hue and cry of the

minor children of the deceased from the house of the deceased.

She rushed to the spot. It is her version that the deceased was

found burning. She poured water over the victim’s body and

extinguished fire. According to her, she was told that 1st accused

poured kerosene over the body of the deceased. So, she gave 3

fist blows to 1st accused. In her evidence, Ext.D1 would show that

the 1st accused and the deceased were leading a happy married

life, which is contrary to her deposition in Court. Ext.D2 shows

that PW2 had given statement before police that the victim did

not say anything when she had asked her how she sustained

injuries. She also had no case that she entertained suspicion

about the occurrence. Ext.D3 is also marked. PW2 also admitted

that the statement was read over to her by the police and she

found it different from what she stated before Court. She did not

complain about the same and she had no protest on it as well.

Court below did not place reliance on her testimony also.

18. The above discussion of testimonies and proved

materials reveals the following:-

As far as A2 is concerned, there is no charge of 302 against
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her. Even according to the prosecution, she was not present in

the house at the time of the offence. As already discussed earlier,

prosecution failed to prove beyond reasonable doubt that the

victim committed suicide. Nothing cogent is brought out in

evidence to prove that the victim was subjected to cruelty by the

accused as alleged by the prosecution. In the light of the above

discussion, we are in agreement with the Court below in its

finding that prosecution miserably failed to prove the charges

levelled against both the accused under Sections 498A and 306

read with S.34 of IPC.

19. 1st accused alone is charged with offence under S.302

of I.P.C. As already elaborated, we do not find any cogent

evidence even to conclude that the death of the victim was one

of homicide. It is in evidence that the 1 st accused tried to put off

the flames on the victim. Admittedly, he was present in the

hospital throughout the day along with others. Prosecution utterly

failed to prove their allegation against the first accused. Of

course, it is brought in evidence that the 1 st accused was a

private driver of a police officer. It can be seen that no venture

was made either from the side of the relatives or from hospital
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authorities to get the statement of the victim recorded by a

Magistrate. FIR was lodged only after the death of the victim and

that too under Section 174 of Cr.P.C. Evidence would further

reveal that there were materials and circumstances to register

and investigate a crime of unnatural death and that too of a

woman’s death within 6 years of her marriage in her matrimonial

home. What prevented the investigating agency from conducting

proper investigation is not known. Prosecution is yet to prove

what is the exact nature of death of the victim – accidental,

suicidal or homicidal.

20. In our anxious consideration, we do not find any error

with the trial Court in arriving at its conclusion.

In the result, the appeal is dismissed.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

A.M.BABU

Rp //True Copy// JUDGE

PS to Judge

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