GOPI Vs. STATE OF KERALA

JUDGEMENT

(1.) APPELLANT , the sole accused in S.C.No.592/2006 on the file of Third Additional Sessions Court, Kollam stands convicted and sentenced for imprisonment for life and to pay fine of Rs.5,000.00 with a default sentence of rigorous imprisonment for one month under Section 302 of Indian Penal Code for having murdered his wife Chandrika. This appeal is directed against the said conviction and sentence.

(2.) THE case of the prosecution in brief is as follows:- The appellant was married to the deceased Chandrika about twenty years before the occurrence and in their wedlock two daughters by name Manju and Vineetha (PW2) were born. Amoralism on the part of the appellant ruined their amity and bickering became a routine in their life and they were living separately for about 1= years preceding the date of occurrence. The deceased and PW2 the younger daughter of the couple, had been residing in the house of PW1, the eldest sister of the deceased during the said period. It was a week prior to the incident that the appellant went to the house of PW1 and brought the deceased and PW2 to his house. On 9/11/2003 at about 8 p.m the appellant with an intention to cause the death of his wife Chandrika poured kerosene kept in MO.1 Can on her body and set her on fire. She was taken to Government Hospital, Punalur at about 9.30 p.m by the relatives of the appellant. PW6 Dr.Vinod examined her and issued Ext.P3 wound certificate. He referred her to Medical College Hospital, Thiruvananthapuram and there PW7 Dr.Anil Kumar examined her. On receiving the intimation from the Medical College Hospital, Thiruvananthapuram PW10 the then Assistant Sub Inspector of Police attached to Anchal Police Station reached the hospital at 10 a.m on 14/11/2003 and recorded Ext.P7 FI statement. On its basis he registered Ext.P9 FIR. PW10 submitted Ext.P8 requisition to the Chief Judicial Magistrate, Thiruvananthapuram to make necessary arrangements for recording the dying declaration of Chandrika. PW9 Judicial First Class Magistrate, Thiruvananthapuram, under orders for that behalf, went to the hospital and after getting the mental state of Chandrika examined and reduced its outcome in the form of Ext.P4 certificate from PW7 recorded Ext.P6 dying declaration at 8.45 p.m on 14/11/2003. On 15/11/2003 PW12, the then Circle Inspector of Police, Kadakkal took over the investigation and he prepared Ext.P1 scene mahazar and seized MO.1 Can and Mo.2 match box from the scene of occurrence. Chandrika succumbed to the injuries on 16/11/2003 at about 3.30 a.m. Thereafter, PW12 instructed PW11 to conduct inquest and thereupon, PW11 prepared Ext.P2 inquest report. PW12 sent necessary requisition for conducting postmortem on the body of Chandrika and the body was forwarded for postmortem. PW14 Dr.Umesh conducted autopsy on the body of Chandrika and prepared Ext.P15 postmortem certificate opining that Chandrika died due to burns affecting about 80% of body surface. PW12 then prepared Ext.P10 report and sent it to the Court for incorporating the offence punishable under Section 302 of Indian Penal Code against the appellant. On the instructions from PW12, PW11 arrested the appellant at 6.10 a.m on 24/11/2003. PW12 recovered MO.3 lungi worn by the appellant at the time of commission of the offence and recovered it under Ext.P13 mahazar and sent it for chemical examination. On seeing that the appellant had minor burn injuries on his body, on 24/11/2003 itself accused was got examined by PW13, the doctor then attached to Government Hospital, Punalur and thereupon, he issued Ext.P14 wound certificate noting the injuries found on the body of the accused. After completing the investigation PW12 laid the final report before Judicial First Class Magistrate-I, Punalur. Learned Magistrate committed the case to the Sessions Court, Kollam. Learned Sessions Judge made over the case for trial and disposal to the Court of Third Additional Sessions Judge, Kollam. After preliminary hearing charges under Sections 341, 323 and 302 of Indian Penal Code were framed against the appellant. It was read over and explained to him and he pleaded not guilty. 2. Since the accused could not engage a counsel of his choice a counsel was appointed by the Court to defend the case of the accused. To prove the charge against the accused, prosecution had examined Pws.1 to 14, marked Exts.P1 to P15 and identified Mos.1 to 3. After closing the prosecution evidence the accused was examined under Section 313 of Code of Criminal Procedure. All the incriminating circumstances were put to him and he denied all such incriminating circumstances. Additionally, he stated that on hearing the hue and cry he went to the courtyard and found Chandrika there on fire. Thereupon, he lifted and took her near water and his daughter poured water over her body and then he laid her on his laps and asked her why she did like that. She replied that she had done so on being fed up with life, it is further stated therein. Finding that it is not a fit case for acquittal under Section 232 of Code of Criminal Procedure, the appellant was asked to enter on his defence. However, the appellant did not adduce any evidence. After appreciating the evidence on record the trial Court found the accused guilty under Section 302 of Indian Penal Code and convicted and sentenced him as aforesaid. This appeal is filed against the said conviction and sentence.

(3.) LEARNED counsel appearing for the appellant firstly contended that there was delay in registration of Ext.P9 First Information Report. It is contended that Ext.P6 dying declaration ought not have been acted upon. It is further contended that the non examination of mahazar witnesses to the recovery of MO.3 as also those persons who took the deceased to the hospital are fatal to the prosecution case.