BIJU ALIAS JOSEPH Vs. STATE OF KERALA

JUDGEMENT

(1.) Appellant was convicted and sentenced to imprisonment for life and fine of Rs.20,000/- and in default imprisonment for two years, for murdering his wife, for the offence punishable under S.302 of Indian Penal Code. Appeal is filed challenging the conviction and sentence.

(2.) The prosecution case in short is that deceased Thressiamma, appellant and PW 6 their five year old daughter were living together. Thressiamma was owning one acre rubber estate which was exclusively given to her just before her marriage by her sister and brother, releasing their rights inherited from the father. The appellant was insisting to transfer that property to his name which was being resisted by Thressiamma. The appellant had treated her with cruelty, both physical and mental. On 10/05/2005 night after 9 pm Thressiamma reached the house of PW 3 Omana to call PW 5 Ealiamma, her sister over phone. PW 3 and her husband had gone out and only PW 4 Shibu their son, was there. Thressiamma called PW 5 over phone and intimated that the treatment meted out to her by the appellant is unbearable. She requested her to take her to her house. PW 5 consoled her and promised to come in the next morning to take her. By that time appellant along with minor daughter came there and scolded her and PW 4 alleging that PW 4 is having immoral relationship with Thressiamma. Appellant took Thressiamma with him and went to their house. PW 4 in turn called PW 13, the Vicar of the church to inform the conduct of the appellant and disclosed the incident. PW 13 promised to be there in the next day morning to sort out the dispute. At about 3-4 am in the early morning on 11/05/2005, appellant came to the house of PW 2 Damodaran requesting to provide his vehicle to take his wife to the hospital disclosing that she suffered burns. Along with the appellant PW 2 reached the house and found Thressiamma lying on the bathroom near to the residential house of the appellant sustaining burns. She was unconscious. Appellant with the help of PW 2 took Thressiamma in that vehicle driven by the son of PW 2. PW 2 was sitting on the front side. His son was driving the vehicle. Appellant with the deceased lying on his lap was sitting on the back side. On the way PW 2 asked appellant what happened. Appellant did not reply. It is alleged that the deceased who regained consciousness at that time replied that it was done by the appellant. On the way when the vehicle was stopped in front of Co - operative Hospital, Payyannur. The doctor advised them to take the injured to Medical College Hospital. Appellant took Thressiamma to Pariyaram Medical College. PW 22, the doctor examined Thressiamma at the casuality and found 90% burns and prepared Ext. P13 wound certificate at 4.05 am and admitted her in S2 unit. PW 1 Thomas, brother of Thressiamma got information from PW 7 Joy, the husband of PW 5 that Thressiamma is hospitalized due to burns. He reached Pariyaram Medical College Hospital and thereafter furnished Ext. P1 first information statement which was recorded by PW 17 Additional Sub Inspector, who registered the crime for the offence under S.307 of Indian Penal Code under Ext. P1(a) FIR. As the condition of Thressiamma was bad and Judicial First Class Magistrate, Payyannur was not available and recording the dying declaration by the Magistrate at Kannur, who was in charge, would take time which may be fatal, on the request of Sub Inspector under Ext. P10, the Superintendent of Medical College directed PW 15 Dr. Premarajan to record her dying declaration. PW 15 recorded Ext. P9 dying declaration in the presence of PW 16 police constable and entrusted to the Superintendent who forwarded it to Judicial First Class Magistrate under Ext. P9(a) letter enclosed in Ext. P9(b) envelope. PW 20 Circle Inspector of Police prepared Ext. P3 scene mahazar and recovered MO 1 lantern and MO 2 can which was filled half by kerosene. MO 3 remnants of Maxi and MO 4 remnants of under skirt were sent to laboratory for chemical analysis which were examined by PW 23 Chemical Examiner who furnished Ext. P16 chemical analysis report. While on treatment Thressiamma breathed her last at 1.35 pm. PW 19 Circle Inspector of Police who took over the investigation and furnished Ext. P11 report altering the offence to one under S.302 of Indian Penal Code. In the presence of Tahsildar PW 20 conducted inquest. PW 10 Gopalakrishna Pillai, Professor of Forensic Medicine, conducted the autopsy and prepared Ext. P4 post - mortem certificate, certifying that Thressiamma died due to the burns. Appellant who was in the hospital was detained and thereafter he was arrested. After completing the investigation, charge was laid for the offences under S.498A and S.302 of Indian Penal Code. The learned Magistrate committed the case to the Sessions Court. When the charge for the offence under S.498A and S.302 of Indian Penal code was framed and read over, appellant pleaded not guilty. Prosecution examined 23 witnesses and marked 19 exhibits and identified six material objects. While cross - examining the prosecution witnesses Exts. D1 and D2 portions of statements recorded under S.161 of Code of Criminal Procedure were marked. After hearing the prosecution and defence, and finding that it is not a case for acquittal under S.232 of Code of Criminal Procedure, as it is not a case without any evidence connecting the appellant with the offence, appellant was called upon to enter on his defence and adduce evidence, if any. Appellant did not adduce any evidence. The learned Sessions Judge on the evidence convicted and sentenced the appellant as stated earlier. It is challenged in the appeal.

(3.) Learned counsel appearing for the appellant challenged the conviction submitting that though a motive was alleged, there is no evidence to prove the motive. It was argued that it is clear that appellant and the deceased were sleeping and appellant when woke up, found the deceased was missing. Hearing the cry he rushed to the bathroom and found that the wife is burning and he did his best to put out fire and as any ordinary prudent husband he tried to provide medical help at the earliest and approached PW 2 for a vehicle and in that vehicle took the injured to the Medical College Hospital and on the way even tried to get treatment at the Co - operative Hospital, but as he was advised to take her to Medical College, he had taken her to the Medical College. It was argued that though learned Sessions Judge found fault with the appellant for the inaction for sixty minutes, based on the evidence of PW 2 that he was informed only at 4 am and therefore, found that appellant did not do anything to help the deceased who sustained burns, the finding is against proved facts. Ext. P13 wound certificate and Ext. P14 case record showing the treatment given to the deceased at Pariyaram Medical College show that the deceased was examined by the doctor at 4.05 am and it requires one hour to reach the hospital from the house and hence there was no delay in taking the deceased to the hospital. Learned counsel also argued that the fact that appellant was there in the hospital throughout, till he was taken into custody, further establishes that he has nothing to do with the burns sustained by the deceased. Learned counsel argued that being a case depending on the circumstantial evidence, every link of the circumstance is to be fully established and the facts so established should unerringly point out the guilt of the appellant and rule out every other hypothesis and on the evidence, appellant could not have been convicted. It was argued that there is no evidence to prove that death of Thressiamma was homicide and possibility of either an accidental fire or the attempt to commit suicide cannot be ruled out and therefore, when it is not conclusively proved that it is a case of homicide, appellant cannot be convicted. Learned counsel argued that it is the positive case of the prosecution that appellant poured kerosene on the body of the deceased and set fire and thereby caused burns which caused her death, but evidence of PW 23 the Chemical Examiner with Ext. P16 report of Chemical Analysis establish that remnants of the dresses of the deceased, when examined showed only presence of petrol and not kerosene and therefore, the very basis of the prosecution case has collapsed. It is argued that when prosecution has no case that appellant poured petrol on the deceased and set fire and thereby caused her death, in the light of Ext. P16, appellant cannot be convicted, when the allegation is that he poured kerosene and set fire. Learned counsel also argued that Ext. P9 dying declaration should not have been relied on by the learned Sessions Judge as it is inherently improbable. It was pointed out that when the deceased was seen by PW 21 doctor, who prepared Ext. P13 wound certificate, she had already sustained 90% burns and Ext. P4 post - mortem certificate with the evidence of PW 10 show that she died due to 100% burns. It was pointed out that evidence of PW 2 establish that when he reached the house of the appellant, he found the deceased lying unconscious in the bathroom sustaining burns and Ext. P14 case sheet establishes that deceased was disoriented and Fortwin was administered, which is proved to be a sedative, on the evidence of PW 10 and therefore, the deceased could not have given a declaration at 11 am as claimed by PW 15, the doctor. It was also argued that as per Ext. P9 dying declaration it was recorded by PW 15 at 11 pm on 11/05/2005 and as the declarant died at 1.35 pm on that day, such a declaration could not have been recorded at all. It was also argued that evidence of PW 15 establishes that he does not know Malayalam and he happened to record the dying declaration as authorized by Medical Superintendent of the hospital, who in turn was requested by the Sub Inspector of Police to record the dying declaration and evidence of PW 16, the police constable, in whose presence Ext. P9 is seen recorded, with Ext. P10 establish that the requisition was submitted by the Sub Inspector to the Superintendent of Medical College Hospital on 11/5/2005 to record the dying declaration. Learned counsel argued that evidence of PW 22 the Investigating officer establish that he received copy of the FIR only at 12 pm on that day while he was at Taliparamba and thereafter authorized the Sub Inspector to get the dying declaration recorded and if that be so, it could have been recorded only subsequent to 12 pm and as the case is that it was recorded at 11 am, for that sole reason it is to be discarded. Learned counsel also argued that Ext. P9 shows only that the declarant was conscious and not that she was physically and mentally fit to disclose facts or make dying declaration, so as to record the dying declaration and though at the time of evidence, PW 15 also added that she was oriented, Ext. P16 case sheet establishes that it is not true and as the injured could have been under the influence of sedative and she breathed her last at 1.35 pm, Ext. P9 dying declaration could not have been furnished by the deceased and therefore, Ext. P9 cannot be treated as her dying declaration. Relying on the decision of the Apex Court in Ramilaben Hasmukhbhai Khristi and Another v. State of Gujarat & Other connected cases, 2002 KHC 1341 : 2002 (7) SCC 56 : AIR 2002 SC 2996 : 2002 SCC (Cri) 1575 : 2002 CriLJ 3917, Waikhom Yaima Singh v. State of Manipur, 2011 KHC 4389 : 2011 (13) SCC 125 : 2011 (1) KLD 846 : 2011 (4) SCALE 718 : 2011 (2) KLJ NOC 15 : 2011 CriLJ 2673, Surinder Kumar v. State of Harlan, 2011 KHC 4960 : 2011 (10) SCC 173, Sharda v. State of Rajasthan, 2010 KHC 6066 : 2010 (2) SCC 85 : AIR 2010 SC 408, Chacko v. State of Kerala, 2003 KHC 720 : AIR 2003 SC 265 : 2003 (1) SCC 112 : 2003 SCC (Cri) 246 : 2003 CriLJ 441, Laxmi v. Om Prakash and Others, 2001 KHC 1129 : AIR 2001 SC 2383 : 2001 (6) SCC 118 : 2001 SCC (Cri) 993 : 2001 CriLJ 3302, Uka Ram v. State of Rajasthan, 2001 KHC 622 : AIR 2001 SC 1814 : 2001 (2) KLT SN 84 : 2001 (2) KLJ NOC 38 : 2001 (5) SCC 254 : 2001 CriLJ 1821 : 2001 AIR SCW 1478 : 2001 (2) Crimes 188 : JT 2001 (4) SC 472 : 2001 SCC (Cri) 847 : 2001 (3) Supreme 238 , and Paparambaka Rosamma v. State of Andhra Pradesh, 2000 KHC 495 : AIR 1999 SC 3455 : 2000 (2) KLT SN 21 : 1999 (7) SCC 695 : 1999 CriLJ 4321 : 1999 AIR SCW 3440 : 1999 (3) CRIMES 150 : JT 1999 (6) SC 585 : 1999 (5) SCALE 451 : 1999 SCC (Cri) 1361 : 1999 (7) Supreme 640 it was argued that as the doctor has not certified in Ext. P9 that Thressiamma was fit to give dying declaration, Ext. P9, in any case it cannot be accepted. Learned counsel also argued that the evidence of PW 2 that the deceased disclosed how she sustained injury while she was being taken to the hospital in the vehicle to PW 2, should not have been relied on, as she was unconscious when the deceased was taken from the house. It was also pointed out that the evidence of PW 2 shows that when the doctor of the Co - operative hospital examined Thressiamma, before they reached the Medical College Hospital, the deceased was unconscious and in such circumstances, when PW 2 claimed that the deceased disclosed how she sustained injury to him when he asked the reason to the appellant is artificial, improbable and unbelievable. Relying on the decision of the Apex Court in Bhairon Singh v. State of Madhya Pradesh, 2009 KHC 4999 : AIR 2009 SC 2603 : 2009 (3) KLT SN 56 : 2009 (13) SCC 80 : 2009 CriLJ 3738 : 2009 (8) SCALE 634 and Paparambaka Rosamma v. State of Andhra Pradesh, 2000 KHC 495 : AIR 1999 SC 3455 : 2000 (2) KLT SN 21 : 1999 (7) SCC 695 : 1999 CriLJ 4321 : 1999 AIR SCW 3440 : 1999 (3) CRIMES 150 : JT 1999 (6) SC 585 : 1999 (5) SCALE 451 : 1999 SCC (Cri) 1361 : 1999 (7) Supreme 640 it was argued that as the factum of taking the deceased to the hospital has no connection with the burns sustained, S.6 of the Evidence Act is not applicable at all and the learned Sessions Judge erred in relying the principles of res gestae. It was also argued that as it is proved that the deceased sustained 100% burns and was under sedation and was disoriented, there could not have been any discloser to PW 5 or PW 3 and the evidence of PW 3 establishes that she had no direct knowledge about any such disclosure and she had given evidence based only on the information furnished by PW 5 and therefore, based on the dying declaration, appellant cannot be convicted. It was argued that the deceased could have sustained burns accidentally when she had gone to the latrine with kerosene lamp on that night and appellant cannot be held for the accidental fire or burns. It was also argued that even the possibility of the deceased sustaining the burns in her attempt to commit suicide also cannot be ruled out and when there is no conclusive evidence to prove that it is a case of homicide, the conviction of the appellant is unsustainable.