NARENDRA SINGH BISTH Vs. STATE OF KERALA

JUDGEMENT

(1.) The sole accused in Sessions Case No.261/2007 on the files of the Addl. Sessions Court (Adhoc-I), Ernakulam is the appellant herein, challenging the conviction and sentence imposed under section 302 of Indian Penal Code. The appellant was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.5 lakhs and in default of payment to undergo rigorous imprisonment for 3 years. The trial court further directed that the entire fine amount, if realised, shall be paid as compensation to the dependents of the deceased. Set off under section 428 Cr.P.C. was also permitted.

(2.) The prosecution case in brief is that, the appellant and the deceased are close friends, both hailing from the State of Uttaranchal. Both of them were working at the Naval Base, INS Venduruthy. The deceased was a Sailor and the accused was a Cook. On 12.10.2005, on the date of 'Dehra' festival, the deceased came along with the appellant to the house where the appellant is residing with his family, situated at Konthuruthy in Elamkulam Village, bearing Door No.CC.26/192 B of Kochi Corporation. They drank and dined together from the house. The deceased has not returned on that night and slept together with the appellant in one of the rooms in the house. The wife of the appellant along with his son and 2 daughters slept in another room. At about 1.00 a.m. after mid night (on the early hours of 13.10.2005) the deceased attempted to molest the wife of the appellant (PW5) and on hearing the loud voice of PW5 the appellant got agitated and he, with an intention and preparation to cause murder of the deceased, had splashed Kerosene on him while the deceased was urinating in the bath room of the house, which is attached to kitchen; and lit fire by lighting a Match Box and thereby burnt the deceased. The deceased was rushed immediately to INS Sanjeevani Hospital in the Naval Base, Kochi and admitted therein. He succumbed to the burn injuries sustained, at about 10.45 a.m. On 22.10.2005; and the appellant thereby committed the offence punishable under section 302 IPC, is the accusation.

(3.) The prosecution evidence consisted of the oral testimony of Pws 1 to 17, Exts P1 to 26 documents were marked and MO1 and MO2 series objects were identified. Ext.X1 to X1(d) were also marked. Exts. D1 to D3 were marked on behalf of the defence. The case in question was registered by the police based on Ext.P16 intimation received from INS Sanjeevani regarding the admission of the deceased with the burn injuries, at 1.00 a.m. on 13.10.2005. PW16, Sub Inspector of Police, registered Ext.P17 FIR based on the said intimation, noting the case as "Fire occurrence". In Ext.P17 it is mentioned that, eventhough an attempt was made to record a statement of the deceased, it could not be possible because he was admitted in the Intensive Care unit . PW16 submitted Ext.P19 request before the Chief Judicial Magistrate Court, Ernakulam to take steps for recording the statement of the deceased, on 13.10.2015 itself. He had also submitted Ext.P18 report before the Additional Chief Judicial Magistrate Court for altering the case as one coming under section 307 IPC. Evidently Ext.P15 request was also submitted before the Additional Chief Judicial Magistrate Court, Ernakulam to take steps for recording the statement of the deceased by the Magistrate. Accordingly PW14, the then Additional Chief Judicial Magistrate, Ernakulam recorded Ext.P14 dying declaration of the deceased, based on which PW17 took over the investigation. He visited the site on 14.10.2005 and prepared Ext.P2 Scene Mahazar. A Kerosene can (MO1) was recovered from the house of the appellant by preparing Ext.P7 Mahazar. He conducted investigation by recording the statement of witnesses. MO2 series dress and other articles owned by the deceased at the time of occurrence was seized from the hospital, by preparing Ext.P8 Mahazar. On 22.10.2005, on getting information about death of the deceased, PW17 conducted examination on the body and prepared Ext.P23 Inquest Report. He submitted Ext.P22 Report to the court altering the offence as one punishable under section 302 IPC. The accused in the case was arrested at about 2.30 p.m. on 14.10.2005 from Konthuruthy; vide Arrest Memo Ext.P21. PW17 concluded the investigation and laid the charge in the case.