Basic concept of dying declaration

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Leading case law on dying declaration

The principle on which dying

declaration are admitted in evidence is

indicated in legal maxim.

"nemo moriturus proesumitur mentiri"

which means, a man will not meet his Maker with

a lie in his mouth. It is on the principle that

when a man faces death, there is no reason for

him to falsely allege any fact as to the cause

of his death. Secondly, if a dying declaration

is to be excluded, it will result in

miscarriage of justice as he may be the only

eye witness in a serious crime, and exclusion

of the statement would leave the Court without

a scrap of evidence. While considering the

dying declaration it is worthwhile to remember

that accused has no power to cross examination

the declarant, which is essential for eliciting

the truth. It is for such reason the Court is

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to be on guard to find whether declaration is

a result of either tutoring, prompting or a

product of imagination. The Court must be

satisfied that the deceased was in a fit state

of mind and capable of disclosing the fact.

The principles to be followed in

appreciating a dying declaration are well

settled. There is no rule of law that dying

declaration cannot be acted upon without

corroboration.IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR&THE HONOURABLE MR.JUSTICE P.BHAVADASAN

TUESDAY, THE 3RD DAY OF JULY 2012

CRL.A.No. 108 of 2009

BIJU @ JOSEPH Vs STATE OF KERALA

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 Section 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 PW6

their five year old daughter were living

together. Thresiamma 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 10/5/2005 night after 9 p.m

Thressiamma reached the house of PW3 Omana to

call PW5 Ealiamma, her sister over phone. PW3

and her husband had gone out and only PW4

Shibu their son, was there. Thressiamma called

PW5 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. PW5 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 PW4 alleging that PW4

is having immoral relationship with

Thressiamma. Appellant took Thressiamma with

him and went to their house. PW4 in turn called

PW13, the Vicar of the church to inform the

conduct of the appellant and disclosed the

incident. PW13 promised to be there in the next

day morning to sort out the dispute. At about

3-4 a.m in the early morning on 11/5/2005,

appellant came to the house of PW2 Damodaran

requesting to provide his vehicle to take his

wife to the hospital disclosing that she

suffered burns. Along with the appellant PW2

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 PW2

took Thressiamma in that vehicle driven by the

son of PW2. PW2 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 PW2 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. PW22, the doctor examined Thressiamma

at the casuality and found 90% burns and

prepared Ext.P13 wound certificate at 4.05 a.m

and admitted her in S2 unit. PW1 Thomas,

brother of Thressiamma got information from PW7

Joy, the husband of PW5 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 PW17 Additional Sub

Inspector, who registered the crime for the

offence under Section 307 of Indian Penal Code

under Ext.P1(a) FIR. As the condition of

CRA 108/09 5

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 PW15 Dr.Premarajan

to record her dying declaration. PW15 recorded

Ext.P9 dying declaration in the presence of

PW16 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. PW20 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 PW23 Chemical

CRA 108/09 6

Examiner who furnished Ext.P16 chemical

analysis report. While on treatment Thressiamma

breathed her last at 1.35 p.m. PW19 Circle

Inspector of Police who took over the

investigation and furnished Ext.P11 report

altering the offence to one under Section 302

of Indian Penal Code. In the presence of

Thahasildar PW20 conducted inquest. PW10

Gopalakrishna Pillai, Professor of Forensic

Medicine, conducted the autopsy and prepared

Ext.P4 postmortem 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 Sections 498 A and 302 of Indian

Penal Code. The learned Magistrate committed

the case to the Sessions Court. When the

charge for the offence under Sections 498 A and

CRA 108/09 7

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 Section 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 Section 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

CRA 108/09 8

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 PW2 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,

CRA 108/09 9

based on the evidence of PW2 that he was

informed only at 4 a.m 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 a.m 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

CRA 108/09 10

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 Thresiamma 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

PW23 the Chemical Examiner with Ext.P16

report of Chemical Analysis establish that

remnants of the dresses of the deceased, when

CRA 108/09 11

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 PW21 doctor,

who prepared Ext.P13 wound certificate, she had

already sustained 90% burns and Ext.P4

postmortem certificate with the evidence of

PW10 show that she died due to 100% burns. It

was pointed out that evidence of PW2 establish

that when he reached the house of the

CRA 108/09 12

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 PW10 and therefore, the

deceased could not have given a declaration at

11 a.m as claimed by PW15, the doctor. It was

also argued that as per Ext.P9 dying

declaration it was recorded by PW15 at 11 p.m

on 11/5/2005 and as the declarant died at 1.35

p.m on that day, such a declaration could not

have been recorded at all. It was also argued

that evidence of PW15 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

CRA 108/09 13

PW16, 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 PW22 the Investigating officer

establish that he received copy of the FIR only

at 12 p.m 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 p.m and as the case is

that it was recorded at 11 a.m, 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

CRA 108/09 14

dying declaration and though at the time of

evidence, PW15 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 p.m, 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 vs. State of

Gujarat & other connected cases (2002 (7) SCC

56), Waikhom Yaima Singh vs. State of Manipur

(2011 (13) SCC 125, Surinder Kumar vs. State of

Haryana (2011 (10) SCC 173), Sharda vs. State

of Rajasthan (2010 (2) SCC 85), Chacko vs.

State of Kerala (AIR 2003 SC 265), Laxmi vs.

Om Prakash and others (AIR 2001 SC 2383), Uka

CRA 108/09 15

Ram vs. State of Rajasthan (AIR 2001 SC 1814,

and Paparambaka Rosamma vs. State of Andhra

Pradesh (AIR 1999 SC 3455) 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 PW2 that the deceased disclosed how she

sustained injury while she was being taken to

the hospital in the vehicle to PW2, 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 PW2

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 PW2 claimed that the

deceased disclosed how she sustained injury to

CRA 108/09 16

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 vs. State of Madhya Pradesh (AIR

2009 SC 2603) and Paparambaka Rosamma vs. State

of Andhra Pradesh (AIR 1999 SC 3455) it was

argued that as the factum of taking the

deceased to the hospital has no connection with

the burns sustained, Section 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 PW5 or PW3 and the evidence of

PW3 establishes that she had no direct

knowledge about any such disclosure and she had

given evidence based only on the information

CRA 108/09 17

furnished by PW5 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.

4. Learned Public Prosecutor pointed

out that the evidence establish that only the

appellant, deceased and their minor daughter

were in that house on that night and evidence

of PW3, PW4 and PW5 establish that appellant

was demanding transfer of one acre property

CRA 108/09 18

standing in the name of the deceased to his

name and as the deceased was not willing he was

treating her with cruelty. It was pointed out

that even on that fateful night, appellant

physically manhandled her as proved by the

evidence of PW6, the daughter and fact that

deceased had gone to the house of PW4 to inform

PW5 and requested to take her to her house

because of the treatment meted out to her by

the appellant, is corroborated by the evidence

of Pws.4 and 5 as well as the evidence of PW13

the Vicar of the Church and the fact that

appellant alleged that the deceased was having

illicit relationship with PW4 and took her

from the house of PW4 where she had gone to

contact her sister over phone, alleging that

the illicit relationship, fortifies the

prosecution case that appellant had a motive

to cause her death. It was also argued that

CRA 108/09 19

when apart from the deceased, only the

appellant could have thrown light into the

incident and his explanation is proved to be

false, prosecution case that it was the

appellant who set fire after pouring the

inflammatory material on the deceased is to be

accepted. Learned Public Prosecutor also argued

that as found by the learned Sessions Judge,

evidence of PW23 the Chemical Examiner shows

that when remnants of the dress of the deceased

were examined, there is possibility for

incorrect finding and in any case, petroleum

and kerosene belong to the same mineral oil

and based on Ext.P16, it cannot be found that

the inflammable material used was not kerosene

but petroleum. Learned Public Prosecutor also

pointed out that when there is absolutely no

possibility for a suicide or accidental fire

and there is no case that any third person

CRA 108/09 20

was likely to commit the offence, it cold have

been done only by the appellant. Learned Public

Prosecutor pointed out that certification of

the fitness of the deceased by the doctor is

not a mandatory condition and it was only

insisted as rule of caution and the question is

whether the disclosure was made voluntarily and

it is truthful. It was argued that the

evidence of PW15 establish that the deceased

was in a fit state of mind when the dying

declaration was recorded. Relying on the

decision of the Apex Court in State of

Rajasthan vs. Bhup Singh (1997 (10) SCC 675)

it was submitted that the dying declaration

recorded in Engligh, though it was disclosed

in Malayalam, is not fatal and as PW15 does

not know to write Malayalam, but can understand

Malayalam, there is no reason to disbelieve the

statement recorded by PW15. Learned Prosecutor

CRA 108/09 21

also argued that the larger Bench of the Apex

Court on Laxman vs. State of Maharashtra (2002

(6) SCC 710) considered the decision in

Paparambaka Rosamma's case (supra) and held

that the view that in the absence of medical

certification that the injured was in a fit

state of mind at the time of making the

declaration, the dying declaration cannot be

accepted is a hypertechnical view and the

Paparambaka Rosamma's case (supra) was not

correctly decided and affirmed the earlier

decision in Koli Chunilam Savji vs. State of

Gujarat (1999 (9) SCC 562) and therefore, for

the reason that there is no certificate by the

doctor that the deceased was in a fit state of

mind to give a statement, Ext.P9 cannot be

discarded. Relying on the decision of the Apex

Court in State of Haryana vs. Harpal Singh and

CRA 108/09 22

others (AIR 1978 SC 1530) learned Public

Prosecutor argued that even in a case where the

pulse of the injured was not palpable and blood

pressure unrecordable and the patient was in a

gasping condition, Honourable Supreme Court

accepted the dying declaration. It was also

pointed out that in Goverdhan Raoji Ghyare vs.

State of Maharashtra (1993 Supp (4) SCC 316)

Honourable Supreme Court held that the

difference between fit state of mind and

conscious state of mind is too hypertechnical

and when the evidence of PW15 establish that

the doctor found the declarant conscious,

oriented and in a fit state of mind and her

statement recorded, Ext.P9 was rightly relied

on by the learned Sessions Judge. It was

therefore, argued that there is no reason to

interfere with the conviction.

5. The fact that appellant and his

CRA 108/09 23

deceased wife Thressiamma and their daughter

PW6 Dona, who was aged only five years at that

time, were living together in house No.XI/202

of Peringome Viakkara Panchayath, situated in

a property having an extent of one acre

belonging to Thressiamma, during November 1998

is not disputed. The fact that Thressiamma who

sustained severe burns on that fateful night of

11/5/2005 was taken to Pariyaram Medical

College hospital in the vehicle belonging to

PW2 driven by his son on that very night, early

morning accompanied by the appellant is also

admitted. The fact that the injured was

examined by PW21, the doctor who recorded 90%

burns in Ext.P13 wound certificate, at 4.05

a.m and she was admitted in S2 unit and was

treated there as an inpatient, as evidenced by

Ext.P14 case sheet and while on treatment she

breathed her last at 1.35 p.m is also not

CRA 108/09 24

disputed and conclusively proved. The evidence

of PW10, the Professor of Forensic Medicines

establish that he conducted the autopsy and the

burn was almost 100% and she died due to the

burns. This fact is also not disputed. The

question is whether it was a case of homicide,

or suicide or result of an accidental fire and

if it is homicide whether it was committed by

the appellant. Prosecution relied on the

circumstantial evidence, apart from the dying

declaration, to prove the guilt. As only the

inmates of the house, viz. appellant, deceased

and PW6, the five year old girl who was

sleeping, were there on the house on that night

one cannot expect any other eye witness to

disclose how the deceased sustained injuries.

Only the appellant could unveil the real facts.

6. Being a case based on circumstantial

evidence, prosecution has to establish that the

CRA 108/09 25

circumstance from which the conclusion of guilt

is to be drawn are fully established and all

the facts so established are consistent only

with the hypothesis of guilt of the accused

and are all of conclusive nature and tendency

and exclude every other hypothesis except the

one proposes to be proved. The principles are

well settled. The five golden principles which

constitute the panchsheel of the proof of a

case based on circumstantial evidence are laid

down in Sharad v. State of Maharashtra (AIR

1984 SC 1622). It reads as follows:

"The following conditions must be fulfilled before a case against an accused can be said to be fully established: 1) the circumstances from which the conclusion of guilt is to be drawn should be fully

CRA 108/09 26

established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be'

established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made: [SCC para 19, p.807:SCC (Cri) p.1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. 2) the facts so established should be consistent only with

CRA 108/09 27

the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. 3) the circumstances should be of a conclusive nature and tedency. 4) they should exclude every possible hypothesis except the one to be proved, and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have

been done by the accused."

In Padala Veera Reddy v. State of Andhra

Pradesh [(1989) Supp (2) SCC 706], the

principles are reiterated as follows;

"(1) the circumstances from which

CRA 108/09 28

an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

CRA 108/09 29

The same principles were reiterated in Bodhraj

vs. State of Jammu & Kashmir (2002 (8) SCC 45,

Bharat vs. State of Maharashtra (2003 (3) SCC

106), Jaswant Gir vs. State of Punjab (2005(12)

SCC 438), Reddy Sampath Kumar vs. State of

Andra Pradesh (2005 (7) SCC 603), Deepak

Chandrakant Patil vs. State of Maharashtra

(2006 (10) SCC 151, State of Goa vs. Sanjay

Takran (2007 (3) SCC 755) and Sattatiyya alias

Satish Rajanna Kartalla vs. State of

Maharashtra (2008 (3) SCC 210). The evidence is

to be appreciated in the light of the settled

legal position.

7. When the appellant, deceased and the

five year old daughter alone were living in the

house, and the wife sustained 90% burns, and

later died due to the burns, necessarily only

the appellant could disclose what really

CRA 108/09 30

happened on that fateful night. In such

circumstances, the disclosure of the appellant

as to what transpired on that night, as

revealed by him in his written statement

submitted at the time of his questioning under

Section 313 of Code of Criminal Procedure

assume importance. His statement is to the

effect that appellant along with the deceased

and their five year old daughter were residing

in that house at Aravanchal. At about 9 p.m on

10/5/2005, when he returned back to the house

after the days coolie work, he found that the

daughter was sleeping and the wife was missing.

He took the daughter and enquired about the

wife among his neighbours. He could not find

her. He thereafter reached the house of PW3 to

enquire about his wife. Thressiamma along with

PW4, the son of PW3 came out of the house.

Appellant questioned Thressiamma why she kept

CRA 108/09 31

the child alone in the house and came to that

house. PW4 did not like it and scolded the

appellant. Appellant along with the daughter

followed by Thressiamma returned to the house

Appellant scolded Thressiamma for going to the

house of PW4 on that night disclosing that

people started talking bad about that

relationship. By 10 p.m they had their supper

and slept together. During early morning

hours, he woke up hearing a cry. Thressiamma

was not found near him. He took a torch and

proceeded to the place from where he heard the

cry. He reached the bathroom which is outside

the house. He found Thressiamma standing

engulfed in fire caught from the maxi worn by

her. Appellant took water, which was available

in the latrine, a part of the bathroom and poured

on her body. She fell on the floor. Appellant

took water from the nearby well and poured on

CRA 108/09 32

her body and put out the fire completely. To

take Thressiamma to the hospital, he rushed to

the house of PW2 and sought his jeep. PW2 came

along with him to the house. Son of PW2 came

with a jeep which was parked near the house of

Krishnan Nambiar. Appellant took the injured

into the jeep which was witnessed by Krishnan

Nambiar and his wife who came there hearing the

sound. Appellant made the deceased lie on his

lap on the back seat and took her to the

hospital. Though a doctor from Payyannur Co-

operative Hospital examined her and gave

medicines, he advised to take her to Pariyaram

Medical College Hospital at the earliest. He

took her to the Medical College hospital and

the doctor examined her and admitted her. By

1.35 p.m on 11/5/2005 she died. She was

unconscious from the moment she fell on the

floor of the bathroom, till she died. She had

CRA 108/09 33

not spoken anything till her death. Appellant

was with her. Her statement was not taken by

anybody from the hospital. After her death, two

police constables took the appellant in a jeep

to Peringome police station and due to the

influence of PW7, his brother-in-law as well as

PW1, brother of the deceased, police foisted

the case against the appellant. He had never

asked Thressiamma to transfer her property in

his name. He has never treated Thressiamma

cruelty, either mentally or physically.

Thressiamma should have sustained burns when

she had gone to the latrine holding a kerosene

lamp accidentally, as the maxi was polyester.

8. The evidence of PW21 and Ext.P15,

the doctors do not give any indication as to

whether the death was homicidal or accidental.

Though Adv.Maniprasad, the learned counsel

appearing for the appellant vehemently argued

CRA 108/09 34

that the motive alleged namely, demand for

transfer of the property by the deceased in

favour of the appellant is not established, on

the evidence we cannot agree. When PW1 was

examined, he deposed that one acre plot

cultivated with rubber belongs to the deceased

exclusively and it originally belonged to their

father and subsequent to his death, the

children inherited it and all the others

released their rights in favour of the

deceased. PW1 was cross examined as if that

fact was disputed. But when PW22 through the

Investigating Officer, Ext.P12 copy of the

release deed executed by PW1 and others in

favour of the deceased, releasing their rights

on 16/11/1998, (date of Ext.P12 shown in the

judgment of the trial court is not correct)

was marked, that aspect was not disputed. At

the time of questioning under Section 313 of

CRA 108/09 35

Code of Criminal Procedure, appellant also

admitted that fact. Ext.P7 marriage

certificate, proved by PW13, the Vicar,

establish that marriage of the appellant with

Thressiamma was solemnized on 23/11/1998.

Ext.P12 release deed executed in favour of

Thressiamma would establish that Pws.1, 5 and

others released their rights in favour of the

deceased just one week earlier to the

solemnisation of the marriage of the appellant

with the deceased. It is clear that the

deceased wife of the appellant was given

absolute right over one acre property

subsequent to the betrothal and just one week

prior to the marriage of the appellant with

the deceased. Evidence of PW.3, 4 and 5 that

appellant was demanding the deceased to

transfer that property in his favour was not

seen challenged while cross examining them. We

CRA 108/09 36

find no reason to disbelieve that evidence.

Therefore, evidence conclusively establish that

appellant was demanding his wife to transfer

the property standing in her name in his

favour. Evidence of PW5 sister of the deceased

also shows that rubber trees standing in the

property was earlier sold by the appellant,

which was not liked by the deceased and there

was a quarrel between them. Evidence of Pws.3

to 5 also establish that appellant was treating

the deceased with cruelty, on account of her

disobedience to transfer the property in his

favour. Evidence of PW4 also shows that the

deceased had gone to his house on that

fateful night to enable her to contact PW5 over

phone, as there was no telephone connection in

the house of the appellant. Evidence of PW4 is

that the deceased had contacted PW5 in his

presence and requested her to take her to the

CRA 108/09 37

house of PW5 as she found the life with the

appellant unbearable and PW5 promised to reach

the house of the deceased on the next morning.

That evidence of PW4 is fully corroborated by

the evidence of PW5. When Pws.4 and 5 were

cross examined, the fact the deceased

Thressiamma had called PW5 from the house of

PW4 on that night or the fact that PW5 promised

to be there in the house of the deceased on

the next day morning were not challenged.

Evidence of PW6 daughter also shows that on

that night she had seen the appellant beating

the deceased Thressiamma. Added to this, the

fact that deceased had been in the house of PW4

on that night and appellant along with PW6 had

gone there as deposed by PW4, is admitted even

in his written statement filed at the time of

questioning under Section 313 of Code of

Criminal Procedure. What is stated therein is

CRA 108/09 38

that appellant was scolded by PW4 and on

returning to the house, appellant asked

Thressiamma why she had gone there stating that

people had started talking about her illicit

relationship, evidence of PW4 is that after

reaching the house while the Thressiamma was

in his house, appellant came there and scolded

PW4 accusing that he is having illicit

relationship with Thressiamma and therefore, he

called PW13 the Vicar to inform about it and

to request PW13 to intervene. That evidence of

PW4 is fully corroborated by the evidence of

PW13. The Vicar deposed that he had received

a call from PW4 on that night and he was

informed about the incident and the Vicar had

promised to be there on the next day to sort

out the dispute. Therefore, the evidence of PW4

is fully corroborated by the evidence of PW5

and PW13. It is therefore, proved that on that

CRA 108/09 39

fateful night, after 9 p.m the deceased

Thressiamma had gone to the house of PW4 and at

that time PW3 and her husband were not there

and the deceased had conveyed the cruel

treatment meted out to her by the appellant to

PW5 over phone and PW5 had promised to be there

on the next day and appellant suspecting

illicit relationship with PW4 scolded and

insulted PW4 and took Thressiamma to his house.

The evidence of PW6 proves that appellant had

beaten the deceased on that night. In such

circumstances, it cannot be said that

prosecution did not establish the motive which

is definitely a strong link in the chain of

circumstantial evidence.


appellant pointed out that appellant was

charged for the offence under Section 498 A of

Indian Penal Code also and learned Sessions

CRA 108/09 40

Judge acquitted him finding that the

prosecution did not prove the cruelty alleged

and in such circumstances, finding on the

existence of the motive, on the same evidence,

by the learned Sessions Judge is unsustainable.

True, learned Sessions Judge found the

appellant not guilty of the offence under

Section 498 A of Indian Penal Code. On going

through the judgment of the learned Sessions

Judge, it is absolutely clear that learned

Sessions Judge has not correctly appreciated

the evidence lead by the prosecution, in

support of the case that appellant committed

an offence under Section 498 A of Indian Penal

Code. Learned Sessions Judge found the


Section 498 A holding that "cruelty to come

within the meaning of Section 498 A of IPC

there must be evidence that the deceased was

CRA 108/09 41

pressed hard by the accused to part with her

property. There is no reliable evidence that

the accused harassed her in such way so as to

coerce the deceased Thressiamma to meet the

unlawful demand made by the accused for her

property. The evidence available is

insufficient to attract the ingredients of the

offence punishable under Section 498 A of IPC".

10. True, as State has not challenged

the acquittal of the appellant for that

offence, even if that finding of the learned

Sessions Judge is not correct, he cannot be

convicted for that offence in the appeal filed

by him, challenging his conviction for the

offence under Section 302 of Indian Penal Code.

But as the appellant is contending that in view

of the finding on Section 498 A of Indian Penal

Code the finding on motive is not sustainable,

it is necessary to consider the correctness of

CRA 108/09 42

that finding also.

11. Section 498 A of Indian Penal Code

provides punishment to a husband or relative

of the husband of a woman, subjecting her to

cruelty. It consists of two limbs as is clear

from clause (a) and (b) of the Explanation

provided in the Section. Under Section 498 A of

Indian Penal Code, whoever, being the husband

or the relative of the husband of a woman,

subjects such woman to cruelty shall be

punished with imprisonment for a term which may

extend to three years and shall also be liable

to fine. The cruelty was explained in the

explanation which reads;

"For the purpose of this section, "cruelty" means-- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger

CRA 108/09 43

to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

Clause (b) deals with harassment with a view

to coercing the wife or any person related to

the wife to meet any unlawful demand for any

property or valuable security or on account of

failure by her or any person related to her to

meet such demand. Necessarily, to convict an

accused for the cruelty coming within

explanation (b), the cruelty must be the

harassment, with a view to coercing the wife or

CRA 108/09 44

any person related to the wife to meet an

unlawful demand for any property or valuable

security or on account of failure to meet such

demand. But even if the cruelty alleged does

not come under clause (b), if it comes within

the ambit of clause (b) it is definitely

punishable under the Section. Under clause

(a) there need not be a harassment with a

view to coercing the wife or any person related

to the wife to meet any unlawful demand for any


the failure to meet such demand. If the accused

is guilty of wilful conduct, which is of such

a nature as is likely to drive the woman to

commit suicide or to cause grave injury or

danger to life, limb or health (whether mental

or physical) of the woman, it would be a

cruelty as provided under Section 498 A of

Indian Penal Code. Unfortunately, learned

CRA 108/09 45

Sessions Judge diverted his attention only to

clause (b) and ignored clause (a). More over,

when the evidence of PW1 the brother, PW5 the

sister of the deceased establish that appellant

was demanding the wife to transfer her property

in his favour, so as to dispose it or to deal

with it according to his wishes and on the

failure of the deceased wife to meet that

demand, she was harassed. That fact is

corroborated by the evidence of Pws.3 and 4.

Hence on the evidence it could not have been

found that there was no cruelty as provided

under Section 498 A. But unfortunately the

appellant was acquitted of that offence, and

the State has not challenged that acquittal.

Hence it is not necessary to consider that

aspect further. Suffice to say that the wrong

finding of the learned Sessions Judge on that

question will not disentitle him to positively

CRA 108/09 46

find the motive alleged by the prosecution. On

the evidence we have no hesitation to hold

that appellant was demanding deceased

Thressiamma to transfer one acre property

standing in her name, in his favour which was

not agreed by the wife and appellant was

treating her with cruelty. Evidence also

establishes that even on the night of that

fateful night appellant had treated her with

cruelty, which compelled the deceased to go to

the house of PW4 and contact PW5 over phone to

request her to take her to her house on the

next day. Appellant reached the house of PW4

and questioned her chastity alleging illicit

relationship with PW4 and scolded her and took

her to the house and even in the presence of

the five year old daughter beat her. Hence

prosecution has succeeded in establishing the

motive.

CRA 108/09 47

12. Though appellant had attempted to

explain the burns sustained by the deceased,

alleging that it was an accidental fire as she

had gone to the latrine with a kerosene lamp

and accidentally fire spread on the maxi and

the underskirt worn by the deceased, on the

evidence we cannot accept the case. Evidence of

PW10 with Ext.P4 postmortem certificate and the

details of burns noted in Ext.P14, including

the diagram prepared by the doctor at the time

of her examination, establish that there were

no burns on the lower limbs below the knee. If

it was a case of accidental fire and the

kerosene lamp taken by the deceased to go to

the bathroom touched the maxi and the

underskirt worn by the deceased and the fire

accidentally spread, the burn should have

started from the bottom and if that be so,

there should necessarily be burns on her lower

CRA 108/09 48

limbs. Absence of any burns on the lower limb,

rules out that possibility. More over, even the

case of the appellant, in his statement filed

at the time of his cross examination under

Section 313 of Code of Criminal Procedure, is

that he found the deceased standing in the

bathroom when he reached there by hearing the

cry and he poured water which was available in

the latrine and while so, the deceased had

fallen unconscious on the floor of the

bathroom. If that be the case and the

deceased was standing on the bathroom and her

dress was burning there should be burns on her

limbs. Ext.P3 scene mahazar shows that latrine

was part of the same bathroom having a total

dimension of 140 cm x 150 cm. and the entrance

to that room is from the east having a width of

60 cm x 162 cm and the door could be

closed by a wooden sheet from inside. It also

CRA 108/09 49

shows that a portion of the bathroom was

converted into a latrine and near the closet

there were two vessels, evidently for keeping

water. If the case of the appellant is true and

he found the deceased standing with fire

spreading on her body, appellant, without

sustaining burns, could not have entered the

latrine portion of the bathroom. He could not

have taken water and poured on the body of the

deceased from that room without sustaining

burns. More over, as according to the appellant

the deceased was standing on the floor of the

bathroom, fire should have spread on her dress

from the bathroom or after it got spread from

that portion of the room which was being used

as latrine and she would have come towards the

bathroom. If the dress has to catch fire from

the kerosene lamp and that too when sufficient

water is available in the vessel kept near the

CRA 108/09 50

closet, as any prudent woman she would have

poured water by taking from the latrine room.

More over, there is no possibility to catch

fire on her dress, while the deceased was

standing on the floor of the bathroom.

13. It is advantageous to bear in mind

the features of homicidal burning in Medical

Jurisprudnce, Toxicology and Forensic Science

for class room, investigation and court room

with case laws, Second Edition by Professor

(Dr.) A.S.Deoskar. The relevant portion at page

137 reads;

"Homicidal Burning This is not so common. It is difficult to kill active conscious person by burning. There may be evidence of making the subject unconscious or semiconscious by poisoning or injury or gagging any tying hands. In most of such cases, he

CRA 108/09 51

or she remains in lying down position before starting of procedure of burning. Hence there are no burn injuries on the part touching the ground. Inflammable material will be detected more on other parts of body than vertex."

Hence absence of a burn on the part of the body

touching on the ground, namely, lower limb, is

definitely a clear indication of homicidal

burning. True, as there is no eye witness,

apart from the appellant, prosecution could not

unveil what really transpired in that bathroom

on that night, as to whether the appellant made

her unconscious before setting fire. In any

case, from the facts born out, accidental fire

could definitely be ruled out.

14. Similar is the case with the theory

of suicide. First of all when the prosecution

witnesses were examined, there was no case for

CRA 108/09 52

the defence that the deceased sustained burns

in an attempt to commit suicide. No material

whatsoever, was pointed to compel the deceased

to commit suicide and that too leaving behind

a five year old girl child. If it was a case of

suicide, definitely there should be a can or

any other vessel, containing the inflammable

material used for pouring it on her body before

setting fire. More over, if appellant and the

deceased were sleeping in one room and the

deceased decided to commit suicide and

proceeded to the bathroom, which is 8 meters

away from the house, in all probability she

would close the door before attempting to

commit suicide. Appellant has no case that the

door of the bathroom was closed from inside and

he had break opened the door. More over, if

appellant reached the bathroom on hearing the

cry, the cry could only be after sustaining

CRA 108/09 53

the burns in an attempt to commit suicide by

burning, appellant would not have found her

standing on her legs as claimed by him. In such

circumstances, we have no hesitation to hold

that possibility of the deceased sustaining

burns, in her attempt to commit suicide could

only be ruled out. If that be so, it is

definitely a case of homicide.

15. We have already found that appellant,

the deceased and PW6, the five year old

daughter alone were in the house on that day.

In such circumstances, appellant has definitely

a duty to explain what happened on that day. It

is necessary to bear in mind that under Section

106 of Evidence Act, when any fact is,

exclusively within the knowledge of any person,

the burden of proving that fact is upon him.

Illustration (b) appended to the section

provides that when A is charged with travelling

CRA 108/09 54

on a railway without ticket, the burden of

proving that he had a ticket is on him. When

the offence like a murder is committed within

the four walls of a house, the initial burden

to prove the case would undoubtedly be upon the

prosecution. But in such a case, the nature and

the amount of evidence to be led by the

prosecution cannot be of the same degree as is

required in other cases of circumstantial

evidence. The burden should necessarily be

comparatively of lighter character. Honourable

Supreme Court in Collector of Customs vs.

D.Bhoormall (1974 (2) SCC 544) considered this

question with respect to an offence under

Sections 167 and 178 A of Sea Customs Act and

held;

"on the principle underlying Section 106, Evidence Act, the burden to

CRA 108/09 55

establish those facts is cast on the person concerned; and if he fails to establish or explain those facts, an adverse inference of fact may arise against him, which coupled with the presumptive evidence

adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person and in the result, prove him guilty".

That principles were followed in Balram Prasad

Agrawal vs. State of Bihar (1997 (9) SCC 338).

Honourable Supreme Court in State of West

Bengal vs. Mir Mohd.Omar (2000 (8) SCC 382),

analysing Section 106 of Indian Evidence Act

held;

"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt

CRA 108/09 56

of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty.

32. In this case, when prosecution succeeded in establishing the aforenarrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognised by the law for the Court to rely on in conditions such as this.

CRA 108/09 57

33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the

CRA 108/09 58

common course of natural events, human conduct etc. in relation to the facts of the case. 34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if accused would tell the Court what else happened to Mahesh at least until he was in their custody."

15. Honourable Supreme Court in

Trimukh Maroti Kirkan v. State of Maharashtra

CRA 108/09 59

(2006(10) SCC 681), considered the failure of

the accused to offer any explanation or the

effect of an explanation which is found to be

untrue and held;

"In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of

law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court (See State of T.N. v. Rajendran (1999(8) SCC 679 para 6); State of U.P v.

CRA 108/09 60

Dr.Ravindra Prakadh Mittal (1992 (3) SCC 300 para 39); State of Maharashtra v. Suresh (2000 (1) SCC 471 para 27); Ganesh Lal v. State of Rajasthan (2002 (1) SCC 731 para 15); and Gulab Chand v. State of M.P (1995 (3) SCC 574 para 4)."

It was held that where an accused is alleged to

commit murder of his wife and the prosecution

succeeds in leading evidence to show that

shortly before the commission of crime they

were seen together or the offence takes

place in the dwelling home where the husband

is normally residing, it has been consistently

held that if the accused does not offer any

explanation on how the wife received the

injuries or offers an explanation which is

found to be false, it is a strong circumstance

CRA 108/09 61

which indicate that he is responsible for

commission of the crime.

16. When the only explanation

offered by the appellant as to what transpired

on that night, is found to be false, it is

definitely an additional link in the chain of

circumstances establishing that it was the

appellant himself who poured the inflammable

material on the body of his wife and set fire

and caused her death by burns.

17. Learned Sessions Judge accepted

Ext.P9 as the dying declaration of the deceased

recorded by PW15 Premarajan. It reads;

"I above mentioned hereby declare that I have taken the dying declaration of pt.

Mrs.Thresiamma, 34 yrs, hailing from Puthanparambu house, Aruvichal, Kannur on 11/5/05 at 11.00 p.m. She was in full

CRA 108/09 62

conscious at the time. She claimed that her husband Mr.Biju put fire on her after pouring kerosene in the toilet adjacent to the house at 3.00 Am on 11/5/05. Note-The victim Thresiamma told the statement in Malayalam and this is the English version of the same."

18. As per Ext.P9, it was recorded at

11 p.m on 11/5/2005. PW9 deposed that the time

noted was mistake and instead the correct time

was 11 a.m and it was wrongly shown as 11 p.m.

The fact that Thresiamma died at 1.35 p.m on

11/5/2005 is not disputed and proved by Ext.P14

and other evidence. Therefore, the dying

declaration could not have been recorded at 11

p.m and evidence of PW15 that it was a mistake

for 11 a.m can only be accepted. The evidence

of PW15 is that he was instructed by the

Superintendent to record the dying declaration

CRA 108/09 63

of Thresiamma and he was in charge of S3 unit

on that day and he recorded her statement in

Ext.P9. Evidence of PW15 is that though he can

understand Malayalam, he cannot write

Malayalam, as he belongs to Karnataka State

though he is working in Pariyaram Medical

College Hospital, Kerala. According to PW15 he

had recorded the statement of the deceased that

it was her husband who set fire after pouring

kerosene on her. It was as disclosed by her

and it is her dying declaration. Though learned

counsel argued that as there are other doctors

who can write Malayalam, PW15 who does not

know how to write Malayalam, recorded the dying

declaration in Engligh and that itself is

suspicious. It was also argued that due to that

defect Ext.P9, is to be discarded. In spite of

the fact that PW15 disclosed that he he can

understand Malayalam, though he cannot write

CRA 108/09 64

Malayalam, the capacity of PW15 to understand

Malayalam, if spoken to him was not tested or

challenged in cross examination. Therefore, it

is to be taken that PW15 could follow Malayalam

and what was disclosed to him by the deceased

in Malayalam was recorded in English in Ext.P9.

On going through the evidence, we find no

reason whatsoever, to doubt the integrity of

PW15. We find no valid reason for PW15, to

fabricate a dying declaration or to join the

prosecution to create one. Argument of the

learned counsel is that as PW22 deposed that

he instructed the Sub Inspector to get a dying

declaration recorded, it could only be after

receipt of the copy of FIR which according to

PW22 was 12 noon and if so, PW15 could not

have recorded Ext.P9 at 11 a.m as Ext.P10

request from the Sub Inspector which in turn

could only be on the instruction of PW22

CRA 108/09 65

received only after 12 noon. True, PW22 deposed

that he had instructed the Sub Inspector to get

a dying declaration recorded as Judicial First

Class Magistrate, Payyannur who has to normally

record the dying declaration is on leave and

his charge was with Judicial First Class

Magistrate, Kannur. Ext.P10 with the evidence

of PW16 police constable show that request was

made by the Sub Inspector to the Superintendent

of the Medical College to get the dying

declaration recorded. But it is to be born in

mind that PW22 was at Taliparamba and from

Taliparamba he could not have ascertained the

position of the injured and decide whether

dying declaration of the injured could be

delayed till the Magistrate of Kannur could be

made available. Such decision could have been

taken only after getting the details of the

physical condition of the injured. PW22 was not

CRA 108/09 66

specifically asked whether he had given the

instructions to the Sub Inspector after receipt

of the copy of the FIR. True, PW22 did not

depose that he got information earlier to the

receipt of copy of the FIR. But on that ground

we find no reason to suspect the genuineness

of Ext.P9. We find that immediately after the

arrest of the appellant, he was produced before

the learned Magistrate with a remand report on

12/5/2005. The remand report discloses that a

dying declaration has already been recorded

which strengthens the genuineness of Ext.P9.

Learned counsel also argued that though Ext.P9

was recorded on 11/5/2005, Ext.P9(b) and Ext.P9

(a) show that it was sent to the Magistrate

from Medical College, Pariyaram only on

23/8/2005 and there is no explanation for the

delay. True, Ext.P9(a) forwarding letter shows

that Ext.P9 was forwarded from the hospital

CRA 108/09 67

only on 23/8/2005 by the Superintendent and

Ext.P9(b) envelope shows that it was sent

directly to the learned Magistrate in a

confidential cover by post. As the dying

declaration was recorded as proved by the

evidence of PW15 on 11/5/2005 itself, and the

evidence of PW15 shows that he entrusted Ext.P9

to the Superintendent, Medical College

Hospital under whose instructions he recorded

the dying declaration, as Ext.P9 was sent in a

confidential cover to the Magistrate directly,

We find no reason to suspect its genuineness

or to discard Ext.P9 on the ground of delay.

19. The fact that PW15 does not know

to write Malayalam and the dying declaration

was recorded not in the language spoken to by

the deceased is not fatal. A dying declaration

made in Bagri language which was recorded by

the Magistrate in Hindi was considered by the

CRA 108/09 68

Honourable Supreme Court in State of Rajasthan

vs. Bhup Singh (1997 (10) SCC 675). Failure

to record the dying declaration in the same

language and not in question and answer form

were considered therein. It was held,

"10. Assuming that the deceased gave her statement in her own language, the dying declaration would not vitiate merely because it was recorded in a different language. We bear in mind that it is not unusual that courts record evidence in the language of the court even when witnesses depose in their own language. Judicial officers are used to the practice of translating the statements from the language of the parties to the language of the court. Such translation process would not upset either the admissibility of the statement or its reliability,

CRA 108/09 69

there are other reasons to doubt the truth of it. 11. Nor would a dying declaration go bad merely because the magistrate did not record it in the form of questions and answers. It is axiomatic that what matters is the substance and not the form. Questions put to the dying man would have been formal and hence the answers given are material. Criminal

courts may evince interest in knowing the contents of what the dying person said and the questions put to him are not very important normally. That part of the statement which relates to the circumstances of the transaction which resulted in his death gets the sanction of admissibility. Here it is improper to throw such statement overboard on a pedantic premix that it was not recorded in the

CRA 108/09 70

form of questions and answers. (Vide Ganpat Mahadeo Mane v. State of Maharashtra (1993 Supp (2) SCC 242)).

20. True, in Ext.P9 it was not

specifically recorded that Thresiamma was fit

to give a declaration. What is stated therein

is that "she was in full conscious at that

time". When PW15 was examined he also deposed

that she was oriented. Argument of the learned

counsel appearing for the appellant is that

consciousness and fit to give statement are two

different stages and unless the doctor

certifies that she was in a fit state of mind

to give a statement, Ext.P9 cannot be

accepted. Though reliance was placed on the

decision in Paparambaka Rosamma's case (supra)

whereunder, in the dying declaration the doctor

had appended a certificate to the effect that

CRA 108/09 71

patient was conscious while recording the

statement, and hence it was held that it would

not be safe to accept the dying declaration as

true and genuine and was made when the injured

was in a fit state of mind since the

certificate of the doctor was only to the

effect that patient is conscious while

recording the statement, we find that a five

Judge Bench of the Apex Court considered the

said decision in Laxman's case (supra) and

held that the observation in that case to the

effect that in the absence of medical



declaration, it would be very much risky to

accept the subjective satisfaction of a

Magistrate, who opined that the injured was in

a fit state of mind at the time of making a

declaration is not a correct enunciation of the

CRA 108/09 72

law. It was held;

"It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P (1997 (7) SCC 695) must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of

CRA 108/09 73

Gujarat (1999 (9) SCC 562)."

The Constitution Bench held;

"The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the

CRA 108/09 74

veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that

the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental

CRA 108/09 75

condition to make the dying declaration look up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a magistrate or a doctor

CRA 108/09 76

or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required isthat the person who records a dying declaration must be satisfied that the deceased was in a fit

CRA 108/09 77

state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is

essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

Therefore, on the ground that in Ext.P9, PW15

only recorded that the injured was "in full

conscious" at the time when it was recorded and

did not specifically certify that she was in

full state of mind, the dying declaration

cannot be discarded. In Goverdhan Raoji

Ghyare's case (supra) considering the fit state

CRA 108/09 78

of mind and conscious state of mind, their

Lordships held, "the distinction sought to be

made out by the learned Sessions Judge that

'fit state of mind' and 'conscious state of

mind' were not the same thing, is too

hypertechnical". Therefore, on that ground also

Ext.P9 dying declaration cannot be discarded.

21. The principle on which dying












CRA 108/09 79












22. The principles to be followed in




corroboration. (Munnu Raja vs. State of M.P.

(1976 (3) SCC 104), State of U.P vs. Ram Sagar

Yadav (1985 (1) SCC 552), Ramawati Devi vs.

State of Bihar (AIR 1983 SC 164) and

CRA 108/09 80

S.P.Devaraji vs. State of Karnataka (AIR 2009

SC 1725)). If the Court is satisfied that the

dying declaration is true and voluntary it can

be the basis for conviction, even if there is

no corroboration. (State of U.P vs. Ram Sagar


State of Bihar (AIR 1983 SC 164)). The Court

has to scrutinise the dying declaration

carefully and must ensure that the declaration

is not the result of tutoring, prompting or

imagination. (K.Ramachandra Reddy vs. Public

Prosecutor (1976 (3) SCC 618)). If the dying

declaration is suspicious it should not be

acted upon without corroborative evidence.

(Rasheed Beg vs. State of M.P.(1974 (4) SCC

264). The dying declaration which suffers from

infirmity cannot form the basis of conviction

(Ram Manorath vs. State of U.P (1981 (2) SCC

654).

CRA 108/09 81

23. Normally the Court in order to

satisfy whether deceased was in a fit mental

condition to make the dying declaration look up

to the medical opinion. But where the eye

witness has said that the deceased was in a fit

and conscious state to make this dying

declaration the medical opinion cannot prevail.

(Nanahau Ram vs. State of M.P.(1988 Supp SCC

152).

24. There is no law or rule that a

dying declaration is to be recorded only by a

Magistrate. The legal position is settled in

Ramavati Devi vs. State of Bihar (AIR 1983 SC

164). Honourable Supreme Court in B.P.Agarwal

& another vs. Dhanalakshmi Bank Ltd & Ors. (AIR

2008 SC 1431) analysing the earlier decisions

held;

"Acceptability of a dying declaration is greater because

CRA 108/09 82

the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross examination are dispensed with in case of a dying declaration. Since the accused has no power of cross- examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample

opportunity to observe and

CRA 108/09 83

identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor's

CRA 108/09 84

opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a

statement can be established otherwise."

The evidence of PW22 establish that a

Magistrate was not available to record the

dying declaration as the local Magistrate was

on leave and getting it recorded by the

Magistrate who was in charge would take time

and the condition of the injured did not permit

to delay the recording. It was in such

circumstances, PW15 happened to record the

dying declaration pursuant to Ext.P10 request

as authorized by the Superintendent of the

Medical College Hospital, PW15, being a doctor

CRA 108/09 85

of the same Medical College Hospital is

competent to consider the fit state of mind of

the injured and decide whether a dying

declaration could be recorded. Evidence of PW15

with Ext.P9 establish that injured Thressiamma

was in fit state of mind to record her dying

declaration and PW15 recorded it. Though

learned counsel based on the entries in Ext.P14

case sheet argued that at 4.05 a.m fortwin,

which is a sedative, was administered to

Thressiamma and fact that the subsequent

entry shows that she was on sedation and was

disoriented casts sufficient doubt on fitness

of the state of mind of Thressiamma. Ext.P14

establishes that though fortwin was

administered at 4.55 a.m subsequently, it was

again directed to be administered after

recording the dying declaration. There is entry

in Ext.P14 regarding the recording of dying

CRA 108/09 86

declaration. Though learned counsel argued that

those entries are subsequently created, we find

absolutely no reason to doubt the genuineness

of such entries as neither the doctors nor

hospital authorities have any reason to

fabricate the records, especially when no such

motive was even alleged. On appreciating the

entire evidence, we have no hesitation to

record evidence of PW15 and Ext.P9. They

establish that the injured before her death

disclosed to PW15 that she was set fire after

pouring the inflammatory material by her

husband, the appellant.

25. Argument of the learned counsel

is that as Ext.P16 with the evidence of PW23

shows that burned portion of maxi and skirt

examined at the laboratory showed that it does

not contain kerosene but petrol and for that

reason prosecution case is to be thrown out.

CRA 108/09 87

Evidence of PW23 with Ext.P16 establish that

kerosene and petrol are products of the same

mineral oil. The distinguishing features are

Rf value and colour. Rf value of petrol is

0.91, diesel is 0.85 and kerosene is 0.89. So

also, the colour of petrol is pink, diesel is

blue and kerosene is purple. Chemical analysis

as revealed from Ext.P16 report shows that Rf

value found was 0.91 and colour was pink. Both

the characteristics of petrol and not kerosene.

It is based on these findings it was certified

that presence of petrol was deducted in the

remnants of the burned maxi and skirt of the

deceased. Evidence of PW23 establish that when

remnants of the burned articles are examined,

there is possibility of error for the tests of

colour as well as Rf value. Therefore, based on

the said findings in Ext.P16 report alone, it

is not possible to hold that what was poured on

CRA 108/09 88

the deceased was petrol and not kerosene. Both

are the same mineral oil and are inflammatory

materials. More over, the dress examined was

polyester which is also the product of crude

oil like petrol. The possibility of the

difference in the RL value and colour from that

of kerosene could also be due to this factor.

Even if it is taken that instead of kerosene,


fire and caused her death, for the reason that

prosecution case was that it was kerosene which

was poured, appellant cannot be found not

guilty. Even the benefit of reasonable doubt

cannot be granted. Whether it is petrol or

kerosene, when both are inflammable, and the

evidence establish that it was the appellant

who poured the inflammatory material on the

deceased, set fire and caused her death the

difference of kerosene and petrol is not very

CRA 108/09 89

relevant. It is necessary to bear in mind that

rule of benefit of reasonable doubt cannot be

at the expense of dispensation of justice and

all acquittals cannot be good, regardless of

justice to the victim and the community.

Three decades back, Krishna Iyer,J. in Sivaji

Sahebrao Bobade and another vs. State of

Maharashtra (AIR 1973 SC 2622) held;

"The evil of acquitting a guilty person light-heartedly as a learned

author* (Glanville Williams in Proof of Guilt) has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a, public demand for harsher legal presumptions against indicted 'persons' and more severe

CRA 108/09 90

punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ..." In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."

The position has been reiterated in State of

CRA 108/09 91

Punjab vs. Karnail Singh (2003 (11) SCC 271)

as follows;

"12.Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See : Gurbachan Singh v. Satpal Singh and others, (AIR 1990 SC 209)). Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava, (AIR 1992 SC 840)). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in

CRA 108/09 92

the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from

being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh and another v. State Delhi Admn.), (AIR 1978 SC 1091). Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315)) quoted in State

CRA 108/09 93

of U.P. v. Anil Singh, (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. (See : Shivaji Sahabrao Bobade and another v. State of Maharashtra, (1974 (1) SCR 489)) , State of U.P. v. Krishna Gopal and another, (AIR 1988 SC 2154) and Gangadhar Behera and others v. State of Orissa, (2002 (7) Supreme 276)."

26. Though learned Sessions Judge relied

on Section 6 of Indian Evidence Act and the

principles of res gestae relying on the

evidence of PW2 that the deceased had disclosed

to him on the way to the Medical College, while

being taken in his vehicle that it was done by

the appellant, on appreciating the evidence in

the proper perspective, we find it not safe to

rely on that evidence of PW2. Evidence of PW2

CRA 108/09 94

establishes that he found the deceased

unconscious and she was taken in his jeep,

driven by his son, along with the appellant.

According to PW2, before they reached the Co-

operative Hospital, Payyannur, he asked the

appellant what happened and appellant did not

reply and the deceased told him that it was

done by the appellant. Though learned Sessions

accepted it, we find it difficult to believe.

the evidence of PW2 is that deceased was not in

a position to speak either when he found her at

the bathroom or when the doctor of the Co-

operative hospital saw her. In such

circumstances, it cannot be believed that on

the way deceased regained consciousness and

disclosed the cause for the burns and that too

when PW2 asked the appellant the cause. In any

case, Section 6 of the Evidence Act cannot be

made invoked as under Section 6 of the Act,

CRA 108/09 95

relevancy of facts could only be those

statements contemporaneously made with the acts

forming the incident involved. Section 6 of the

Evidence Act is an exception to the general

rule whereunder hearsay evidence becomes

admissible. Section 6 provides that facts which

though not in issue, are so connected with a

fact in issue as to form part of the same

transaction, are relevant, where they occurred

at the same time and places. Honourable Supreme

Court in Sukhar vs. State of U.P (1999 (9) SCC

507) considered the principles of Section 6 of

Evidence Act and held.

"6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes

admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is

CRA 108/09 96

required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated in Wigmore's Evidence Act reads thus : "Under the present Exception [to hearsay] an utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car-brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of

CRA 108/09 97

excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided, it is near

enough in time to allow the assumption that the exciting influence continued." 7. Sarkar on Evidence (Fifteenth Edition) summarises the law relating to applicability of Section 6 of the Evidence Act thus : "1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction

CRA 108/09 98

which is continuous. 2. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past. 3. The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and by- standers. In conspiracy, riot andc. the declarations of all concerned in the common object are admissible. 4. Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters

stated.".

The fact that appellant was being taken to the

hospital after sustaining injuries, do not form

part of same transaction in which she

CRA 108/09 99

sustained the burns. Hence Section 6 of the

Evidence Act cannot have any application, as

held by the Apex Court in Sukhar's Case

(supra) and reiterated in Bhairon Singh vs.

State of Madhya Pradesh (AIR 2009 SC 2603).

Similarly, though evidence of Pws.3 and 4 were

relied on, on appreciating the evidence, we

find it unsafe to rely on their evidence on the

dying declaration. Though PW3 deposed in chief

examination that deceased had disclosed the

cause for her burns to her, in cross

examination she deposed it as disclosed to her

by PW5. Though PW5 claimed that deceased

disclosed as to how she sustained burns,

considering the physical condition of the

deceased as is clear from Ext.P14 case records,

it cannot be believed that she had disclosed

the cause to PW5 from the hospital. But the

fact that the cause of burns allegedly

CRA 108/09 100

disclosed by the deceased to PWs.3 and 4 are

not found trustworthy will not affect the

prosecution case.

27. On appreciating the entire

circumstantial evidence pointed out earlier

with the dying declaration, it is conclusively

established that it was the appellant who set

fire on Thressiamma, his deceased wife, after

pouring the inflammable liquid. The facts so

established are complete and taken cumulatively

should form a chain which is complete. There is

no room for any escape from the conclusion that

within all human probability the crime was

committed by the appellant and none else. The

circumstances, so established are complete and

incapable of explaining any other hypothesis

that of the guilt of the appellant. They are

consistent with the guilt of the accused and

are inconsistent with his innocence.

CRA 108/09 101

We confirms the conviction and sentence

for the offence under Section 302 of Indian

Penal Code.

Appeal is dismissed.

M.SASIDHARAN NAMBIAR, (Judge).

P.BHAVADASAN, (Judge).

uj.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR&THE HONOURABLE MR.JUSTICE P.BHAVADASAN

TUESDAY, THE 3RD DAY OF JULY 2012/12TH ASHADHA 1934

CRL.A.No. 108 of 2009 ( )

-------------------------SC.462/2007 of SESSIONS COURT,THALASSERYCP.4/2006 of J.M.F.C.,PAYYANNUR

APPELLANT(S)/ACCUSED:--------------------

BIJU @ JOSEPH PUNNATHANATHU HOUSE,PERUMTHATTA HOUSE PERUMTHATTA AMSOM, THAVADISSERY,AALAKKODE KANNUR.

BY ADVS.SRI.O.V.MANIPRASAD SRI.SOJAN MICHEAL

RESPONDENT(S)/COMPLAINANT:--------------------------

STATE OF KERALA PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.

BY ADV. PUBLIC PROSECUTOR SRI.ROY THOMAS

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21/6/2012,THE COURT ON 3/7/2012 DELIVERED THE FOLLOWING:

M.SASIDHARAN NAMBIAR & P.BHAVADASAN, JJ.

--------------------------------------------- CRL.A.NO.108 OF 2009 --------------------------------------------- Dated 3rd July, 2012

JUDGMENT

Sasidharan Nambiar,J.

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 Section 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 PW6

their five year old daughter were living

together. Thresiamma 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

CRA 108/09 2

that property to his name which was being

resisted by Thressiamma. The appellant had

treated her with cruelty, both physical and

mental. On 10/5/2005 night after 9 p.m

Thressiamma reached the house of PW3 Omana to

call PW5 Ealiamma, her sister over phone. PW3

and her husband had gone out and only PW4

Shibu their son, was there. Thressiamma called

PW5 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. PW5 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 PW4 alleging that PW4

is having immoral relationship with

Thressiamma. Appellant took Thressiamma with

him and went to their house. PW4 in turn called

PW13, the Vicar of the church to inform the

CRA 108/09 3

conduct of the appellant and disclosed the

incident. PW13 promised to be there in the next

day morning to sort out the dispute. At about

3-4 a.m in the early morning on 11/5/2005,

appellant came to the house of PW2 Damodaran

requesting to provide his vehicle to take his

wife to the hospital disclosing that she

suffered burns. Along with the appellant PW2

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 PW2

took Thressiamma in that vehicle driven by the

son of PW2. PW2 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 PW2 asked appellant

what happened. Appellant did not reply. It is

alleged that the deceased who regained

CRA 108/09 4

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. PW22, the doctor examined Thressiamma

at the casuality and found 90% burns and

prepared Ext.P13 wound certificate at 4.05 a.m

and admitted her in S2 unit. PW1 Thomas,

brother of Thressiamma got information from PW7

Joy, the husband of PW5 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 PW17 Additional Sub

Inspector, who registered the crime for the

offence under Section 307 of Indian Penal Code

under Ext.P1(a) FIR. As the condition of

CRA 108/09 5

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 PW15 Dr.Premarajan

to record her dying declaration. PW15 recorded

Ext.P9 dying declaration in the presence of

PW16 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. PW20 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 PW23 Chemical

CRA 108/09 6

Examiner who furnished Ext.P16 chemical

analysis report. While on treatment Thressiamma

breathed her last at 1.35 p.m. PW19 Circle

Inspector of Police who took over the

investigation and furnished Ext.P11 report

altering the offence to one under Section 302

of Indian Penal Code. In the presence of

Thahasildar PW20 conducted inquest. PW10

Gopalakrishna Pillai, Professor of Forensic

Medicine, conducted the autopsy and prepared

Ext.P4 postmortem 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 Sections 498 A and 302 of Indian

Penal Code. The learned Magistrate committed

the case to the Sessions Court. When the

charge for the offence under Sections 498 A and

CRA 108/09 7

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 Section 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 Section 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.


CRA 108/09 8

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 PW2 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,

CRA 108/09 9

based on the evidence of PW2 that he was

informed only at 4 a.m 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 a.m 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

CRA 108/09 10

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 Thresiamma 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

PW23 the Chemical Examiner with Ext.P16

report of Chemical Analysis establish that

remnants of the dresses of the deceased, when

CRA 108/09 11

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


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 PW21 doctor,

who prepared Ext.P13 wound certificate, she had

already sustained 90% burns and Ext.P4

postmortem certificate with the evidence of

PW10 show that she died due to 100% burns. It

was pointed out that evidence of PW2 establish

that when he reached the house of the

CRA 108/09 12

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 PW10 and therefore, the

deceased could not have given a declaration at

11 a.m as claimed by PW15, the doctor. It was

also argued that as per Ext.P9 dying

declaration it was recorded by PW15 at 11 p.m

on 11/5/2005 and as the declarant died at 1.35

p.m on that day, such a declaration could not

have been recorded at all. It was also argued

that evidence of PW15 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

CRA 108/09 13

PW16, 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 PW22 the Investigating officer

establish that he received copy of the FIR only

at 12 p.m 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 p.m and as the case is

that it was recorded at 11 a.m, 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

CRA 108/09 14

dying declaration and though at the time of

evidence, PW15 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 p.m, 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 vs. State of

Gujarat & other connected cases (2002 (7) SCC

56), Waikhom Yaima Singh vs. State of Manipur

(2011 (13) SCC 125, Surinder Kumar vs. State of

Haryana (2011 (10) SCC 173), Sharda vs. State

of Rajasthan (2010 (2) SCC 85), Chacko vs.

State of Kerala (AIR 2003 SC 265), Laxmi vs.

Om Prakash and others (AIR 2001 SC 2383), Uka

CRA 108/09 15

Ram vs. State of Rajasthan (AIR 2001 SC 1814,

and Paparambaka Rosamma vs. State of Andhra

Pradesh (AIR 1999 SC 3455) 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 PW2 that the deceased disclosed how she

sustained injury while she was being taken to

the hospital in the vehicle to PW2, 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 PW2

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 PW2 claimed that the

deceased disclosed how she sustained injury to

CRA 108/09 16

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 vs. State of Madhya Pradesh (AIR

2009 SC 2603) and Paparambaka Rosamma vs. State

of Andhra Pradesh (AIR 1999 SC 3455) it was

argued that as the factum of taking the

deceased to the hospital has no connection with

the burns sustained, Section 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 PW5 or PW3 and the evidence of

PW3 establishes that she had no direct

knowledge about any such disclosure and she had

given evidence based only on the information

CRA 108/09 17

furnished by PW5 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.

4. Learned Public Prosecutor pointed

out that the evidence establish that only the

appellant, deceased and their minor daughter

were in that house on that night and evidence

of PW3, PW4 and PW5 establish that appellant

was demanding transfer of one acre property

CRA 108/09 18

standing in the name of the deceased to his

name and as the deceased was not willing he was

treating her with cruelty. It was pointed out

that even on that fateful night, appellant

physically manhandled her as proved by the

evidence of PW6, the daughter and fact that

deceased had gone to the house of PW4 to inform

PW5 and requested to take her to her house

because of the treatment meted out to her by

the appellant, is corroborated by the evidence

of Pws.4 and 5 as well as the evidence of PW13

the Vicar of the Church and the fact that

appellant alleged that the deceased was having

illicit relationship with PW4 and took her

from the house of PW4 where she had gone to

contact her sister over phone, alleging that

the illicit relationship, fortifies the

prosecution case that appellant had a motive

to cause her death. It was also argued that

CRA 108/09 19

when apart from the deceased, only the

appellant could have thrown light into the

incident and his explanation is proved to be

false, prosecution case that it was the

appellant who set fire after pouring the

inflammatory material on the deceased is to be

accepted. Learned Public Prosecutor also argued

that as found by the learned Sessions Judge,

evidence of PW23 the Chemical Examiner shows

that when remnants of the dress of the deceased

were examined, there is possibility for

incorrect finding and in any case, petroleum

and kerosene belong to the same mineral oil

and based on Ext.P16, it cannot be found that

the inflammable material used was not kerosene

but petroleum. Learned Public Prosecutor also

pointed out that when there is absolutely no

possibility for a suicide or accidental fire

and there is no case that any third person

CRA 108/09 20

was likely to commit the offence, it cold have

been done only by the appellant. Learned Public

Prosecutor pointed out that certification of

the fitness of the deceased by the doctor is

not a mandatory condition and it was only

insisted as rule of caution and the question is

whether the disclosure was made voluntarily and

it is truthful. It was argued that the

evidence of PW15 establish that the deceased

was in a fit state of mind when the dying

declaration was recorded. Relying on the

decision of the Apex Court in State of

Rajasthan vs. Bhup Singh (1997 (10) SCC 675)

it was submitted that the dying declaration

recorded in Engligh, though it was disclosed

in Malayalam, is not fatal and as PW15 does

not know to write Malayalam, but can understand

Malayalam, there is no reason to disbelieve the

statement recorded by PW15. Learned Prosecutor

CRA 108/09 21

also argued that the larger Bench of the Apex

Court on Laxman vs. State of Maharashtra (2002

(6) SCC 710) considered the decision in

Paparambaka Rosamma's case (supra) and held

that the view that in the absence of medical



declaration, the dying declaration cannot be

accepted is a hypertechnical view and the

Paparambaka Rosamma's case (supra) was not

correctly decided and affirmed the earlier

decision in Koli Chunilam Savji vs. State of

Gujarat (1999 (9) SCC 562) and therefore, for

the reason that there is no certificate by the

doctor that the deceased was in a fit state of

mind to give a statement, Ext.P9 cannot be

discarded. Relying on the decision of the Apex

Court in State of Haryana vs. Harpal Singh and

CRA 108/09 22

others (AIR 1978 SC 1530) learned Public

Prosecutor argued that even in a case where the

pulse of the injured was not palpable and blood

pressure unrecordable and the patient was in a

gasping condition, Honourable Supreme Court

accepted the dying declaration. It was also

pointed out that in Goverdhan Raoji Ghyare vs.

State of Maharashtra (1993 Supp (4) SCC 316)

Honourable Supreme Court held that the

difference between fit state of mind and

conscious state of mind is too hypertechnical

and when the evidence of PW15 establish that

the doctor found the declarant conscious,

oriented and in a fit state of mind and her

statement recorded, Ext.P9 was rightly relied

on by the learned Sessions Judge. It was

therefore, argued that there is no reason to

interfere with the conviction.

5. The fact that appellant and his

CRA 108/09 23

deceased wife Thressiamma and their daughter

PW6 Dona, who was aged only five years at that

time, were living together in house No.XI/202

of Peringome Viakkara Panchayath, situated in

a property having an extent of one acre

belonging to Thressiamma, during November 1998

is not disputed. The fact that Thressiamma who

sustained severe burns on that fateful night of

11/5/2005 was taken to Pariyaram Medical

College hospital in the vehicle belonging to

PW2 driven by his son on that very night, early

morning accompanied by the appellant is also

admitted. The fact that the injured was

examined by PW21, the doctor who recorded 90%

burns in Ext.P13 wound certificate, at 4.05

a.m and she was admitted in S2 unit and was

treated there as an inpatient, as evidenced by

Ext.P14 case sheet and while on treatment she

breathed her last at 1.35 p.m is also not

CRA 108/09 24

disputed and conclusively proved. The evidence

of PW10, the Professor of Forensic Medicines

establish that he conducted the autopsy and the

burn was almost 100% and she died due to the

burns. This fact is also not disputed. The

question is whether it was a case of homicide,

or suicide or result of an accidental fire and

if it is homicide whether it was committed by

the appellant. Prosecution relied on the

circumstantial evidence, apart from the dying

declaration, to prove the guilt. As only the

inmates of the house, viz. appellant, deceased

and PW6, the five year old girl who was

sleeping, were there on the house on that night

one cannot expect any other eye witness to

disclose how the deceased sustained injuries.

Only the appellant could unveil the real facts.

6. Being a case based on circumstantial

evidence, prosecution has to establish that the

CRA 108/09 25

circumstance from which the conclusion of guilt

is to be drawn are fully established and all

the facts so established are consistent only

with the hypothesis of guilt of the accused

and are all of conclusive nature and tendency

and exclude every other hypothesis except the

one proposes to be proved. The principles are

well settled. The five golden principles which

constitute the panchsheel of the proof of a

case based on circumstantial evidence are laid

down in Sharad v. State of Maharashtra (AIR

1984 SC 1622). It reads as follows:

"The following conditions must be fulfilled before a case against an accused can be said to be fully established: 1) the circumstances from which the conclusion of guilt is to be drawn should be fully

CRA 108/09 26

established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made: [SCC para 19, p.807:SCC (Cri) p.1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. 2) the facts so established should be consistent only with

CRA 108/09 27

the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. 3) the circumstances should be of a conclusive nature and tedency. 4) they should exclude every possible hypothesis except the one to be proved, and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for

the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

In Padala Veera Reddy v. State of Andhra

Pradesh [(1989) Supp (2) SCC 706], the

principles are reiterated as follows;

"(1) the circumstances from which

CRA 108/09 28

an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

CRA 108/09 29

The same principles were reiterated in Bodhraj

vs. State of Jammu & Kashmir (2002 (8) SCC 45,

Bharat vs. State of Maharashtra (2003 (3) SCC

106), Jaswant Gir vs. State of Punjab (2005(12)

SCC 438), Reddy Sampath Kumar vs. State of

Andra Pradesh (2005 (7) SCC 603), Deepak

Chandrakant Patil vs. State of Maharashtra

(2006 (10) SCC 151, State of Goa vs. Sanjay

Takran (2007 (3) SCC 755) and Sattatiyya alias

Satish Rajanna Kartalla vs. State of

Maharashtra (2008 (3) SCC 210). The evidence is

to be appreciated in the light of the settled

legal position.

7. When the appellant, deceased and the

five year old daughter alone were living in the

house, and the wife sustained 90% burns, and

later died due to the burns, necessarily only

the appellant could disclose what really

CRA 108/09 30

happened on that fateful night. In such

circumstances, the disclosure of the appellant

as to what transpired on that night, as

revealed by him in his written statement

submitted at the time of his questioning under

Section 313 of Code of Criminal Procedure

assume importance. His statement is to the

effect that appellant along with the deceased

and their five year old daughter were residing

in that house at Aravanchal. At about 9 p.m on

10/5/2005, when he returned back to the house

after the days coolie work, he found that the

daughter was sleeping and the wife was missing.

He took the daughter and enquired about the

wife among his neighbours. He could not find

her. He thereafter reached the house of PW3 to

enquire about his wife. Thressiamma along with

PW4, the son of PW3 came out of the house.

Appellant questioned Thressiamma why she kept

CRA 108/09 31

the child alone in the house and came to that

house. PW4 did not like it and scolded the

appellant. Appellant along with the daughter

followed by Thressiamma returned to the house

Appellant scolded Thressiamma for going to the

house of PW4 on that night disclosing that

people started talking bad about that

relationship. By 10 p.m they had their supper

and slept together. During early morning

hours, he woke up hearing a cry. Thressiamma

was not found near him. He took a torch and

proceeded to the place from where he heard the

cry. He reached the bathroom which is outside

the house. He found Thressiamma standing

engulfed in fire caught from the maxi worn by

her. Appellant took water, which was available

in the latrine, a part of the bathroom and poured

on her body. She fell on the floor. Appellant

took water from the nearby well and poured on

CRA 108/09 32

her body and put out the fire completely. To

take Thressiamma to the hospital, he rushed to

the house of PW2 and sought his jeep. PW2 came

along with him to the house. Son of PW2 came

with a jeep which was parked near the house of

Krishnan Nambiar. Appellant took the injured

into the jeep which was witnessed by Krishnan

Nambiar and his wife who came there hearing the

sound. Appellant made the deceased lie on his

lap on the back seat and took her to the

hospital. Though a doctor from Payyannur Co-

operative Hospital examined her and gave

medicines, he advised to take her to Pariyaram

Medical College Hospital at the earliest. He

took her to the Medical College hospital and

the doctor examined her and admitted her. By

1.35 p.m on 11/5/2005 she died. She was

unconscious from the moment she fell on the

floor of the bathroom, till she died. She had

CRA 108/09 33

not spoken anything till her death. Appellant

was with her. Her statement was not taken by

anybody from the hospital. After her death, two

police constables took the appellant in a jeep

to Peringome police station and due to the

influence of PW7, his brother-in-law as well as

PW1, brother of the deceased, police foisted

the case against the appellant. He had never

asked Thressiamma to transfer her property in

his name. He has never treated Thressiamma

cruelty, either mentally or physically.

Thressiamma should have sustained burns when

she had gone to the latrine holding a kerosene

lamp accidentally, as the maxi was polyester.

8. The evidence of PW21 and Ext.P15,

the doctors do not give any indication as to

whether the death was homicidal or accidental.

Though Adv.Maniprasad, the learned counsel

appearing for the appellant vehemently argued

CRA 108/09 34

that the motive alleged namely, demand for

transfer of the property by the deceased in

favour of the appellant is not established, on

the evidence we cannot agree. When PW1 was

examined, he deposed that one acre plot

cultivated with rubber belongs to the deceased

exclusively and it originally belonged to their

father and subsequent to his death, the

children inherited it and all the others

released their rights in favour of the

deceased. PW1 was cross examined as if that

fact was disputed. But when PW22 through the

Investigating Officer, Ext.P12 copy of the

release deed executed by PW1 and others in

favour of the deceased, releasing their rights

on 16/11/1998, (date of Ext.P12 shown in the

judgment of the trial court is not correct)

was marked, that aspect was not disputed. At

the time of questioning under Section 313 of

CRA 108/09 35

Code of Criminal Procedure, appellant also

admitted that fact. Ext.P7 marriage

certificate, proved by PW13, the Vicar,

establish that marriage of the appellant with

Thressiamma was solemnized on 23/11/1998.

Ext.P12 release deed executed in favour of

Thressiamma would establish that Pws.1, 5 and

others released their rights in favour of the

deceased just one week earlier to the

solemnisation of the marriage of the appellant

with the deceased. It is clear that the

deceased wife of the appellant was given

absolute right over one acre property

subsequent to the betrothal and just one week

prior to the marriage of the appellant with

the deceased. Evidence of PW.3, 4 and 5 that

appellant was demanding the deceased to

transfer that property in his favour was not

seen challenged while cross examining them. We

CRA 108/09 36

find no reason to disbelieve that evidence.

Therefore, evidence conclusively establish that

appellant was demanding his wife to transfer

the property standing in her name in his

favour. Evidence of PW5 sister of the deceased

also shows that rubber trees standing in the

property was earlier sold by the appellant,

which was not liked by the deceased and there

was a quarrel between them. Evidence of Pws.3

to 5 also establish that appellant was treating

the deceased with cruelty, on account of her

disobedience to transfer the property in his

favour. Evidence of PW4 also shows that the

deceased had gone to his house on that

fateful night to enable her to contact PW5 over

phone, as there was no telephone connection in

the house of the appellant. Evidence of PW4 is

that the deceased had contacted PW5 in his

presence and requested her to take her to the

CRA 108/09 37

house of PW5 as she found the life with the

appellant unbearable and PW5 promised to reach

the house of the deceased on the next morning.

That evidence of PW4 is fully corroborated by

the evidence of PW5. When Pws.4 and 5 were

cross examined, the fact the deceased

Thressiamma had called PW5 from the house of

PW4 on that night or the fact that PW5 promised

to be there in the house of the deceased on

the next day morning were not challenged.

Evidence of PW6 daughter also shows that on

that night she had seen the appellant beating

the deceased Thressiamma. Added to this, the

fact that deceased had been in the house of PW4

on that night and appellant along with PW6 had

gone there as deposed by PW4, is admitted even

in his written statement filed at the time of

questioning under Section 313 of Code of

Criminal Procedure. What is stated therein is

CRA 108/09 38

that appellant was scolded by PW4 and on

returning to the house, appellant asked

Thressiamma why she had gone there stating that

people had started talking about her illicit

relationship, evidence of PW4 is that after

reaching the house while the Thressiamma was

in his house, appellant came there and scolded

PW4 accusing that he is having illicit

relationship with Thressiamma and therefore, he

called PW13 the Vicar to inform about it and

to request PW13 to intervene. That evidence of

PW4 is fully corroborated by the evidence of

PW13. The Vicar deposed that he had received

a call from PW4 on that night and he was

informed about the incident and the Vicar had

promised to be there on the next day to sort

out the dispute. Therefore, the evidence of PW4

is fully corroborated by the evidence of PW5

and PW13. It is therefore, proved that on that

CRA 108/09 39

fateful night, after 9 p.m the deceased

Thressiamma had gone to the house of PW4 and at

that time PW3 and her husband were not there

and the deceased had conveyed the cruel

treatment meted out to her by the appellant to

PW5 over phone and PW5 had promised to be there

on the next day and appellant suspecting

illicit relationship with PW4 scolded and

insulted PW4 and took Thressiamma to his house.

The evidence of PW6 proves that appellant had

beaten the deceased on that night. In such

circumstances, it cannot be said that

prosecution did not establish the motive which

is definitely a strong link in the chain of

circumstantial evidence.


appellant pointed out that appellant was

charged for the offence under Section 498 A of

Indian Penal Code also and learned Sessions

CRA 108/09 40

Judge acquitted him finding that the

prosecution did not prove the cruelty alleged

and in such circumstances, finding on the

existence of the motive, on the same evidence,

by the learned Sessions Judge is unsustainable.

True, learned Sessions Judge found the


Section 498 A of Indian Penal Code. On going

through the judgment of the learned Sessions

Judge, it is absolutely clear that learned

Sessions Judge has not correctly appreciated

the evidence lead by the prosecution, in

support of the case that appellant committed

an offence under Section 498 A of Indian Penal

Code. Learned Sessions Judge found the


Section 498 A holding that "cruelty to come

within the meaning of Section 498 A of IPC

there must be evidence that the deceased was

CRA 108/09 41

pressed hard by the accused to part with her

property. There is no reliable evidence that

the accused harassed her in such way so as to

coerce the deceased Thressiamma to meet the

unlawful demand made by the accused for her

property. The evidence available is

insufficient to attract the ingredients of the

offence punishable under Section 498 A of IPC".

10. True, as State has not challenged

the acquittal of the appellant for that

offence, even if that finding of the learned

Sessions Judge is not correct, he cannot be

convicted for that offence in the appeal filed

by him, challenging his conviction for the

offence under Section 302 of Indian Penal Code.

But as the appellant is contending that in view

of the finding on Section 498 A of Indian Penal

Code the finding on motive is not sustainable,

it is necessary to consider the correctness of

CRA 108/09 42

that finding also.

11. Section 498 A of Indian Penal Code

provides punishment to a husband or relative

of the husband of a woman, subjecting her to

cruelty. It consists of two limbs as is clear

from clause (a) and (b) of the Explanation

provided in the Section. Under Section 498 A of

Indian Penal Code, whoever, being the husband

or the relative of the husband of a woman,

subjects such woman to cruelty shall be

punished with imprisonment for a term which may

extend to three years and shall also be liable

to fine. The cruelty was explained in the

explanation which reads;

"For the purpose of this section, "cruelty" means-- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger

CRA 108/09 43

to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

Clause (b) deals with harassment with a view

to coercing the wife or any person related to

the wife to meet any unlawful demand for any


failure by her or any person related to her to

meet such demand. Necessarily, to convict an

accused for the cruelty coming within

explanation (b), the cruelty must be the

harassment, with a view to coercing the wife or

CRA 108/09 44

any person related to the wife to meet an

unlawful demand for any property or valuable

security or on account of failure to meet such

demand. But even if the cruelty alleged does

not come under clause (b), if it comes within

the ambit of clause (b) it is definitely

punishable under the Section. Under clause

(a) there need not be a harassment with a

view to coercing the wife or any person related

to the wife to meet any unlawful demand for any


the failure to meet such demand. If the accused

is guilty of wilful conduct, which is of such

a nature as is likely to drive the woman to

commit suicide or to cause grave injury or

danger to life, limb or health (whether mental

or physical) of the woman, it would be a

cruelty as provided under Section 498 A of

Indian Penal Code. Unfortunately, learned

CRA 108/09 45

Sessions Judge diverted his attention only to

clause (b) and ignored clause (a). More over,

when the evidence of PW1 the brother, PW5 the

sister of the deceased establish that appellant

was demanding the wife to transfer her property

in his favour, so as to dispose it or to deal

with it according to his wishes and on the

failure of the deceased wife to meet that

demand, she was harassed. That fact is

corroborated by the evidence of Pws.3 and 4.

Hence on the evidence it could not have been

found that there was no cruelty as provided

under Section 498 A. But unfortunately the

appellant was acquitted of that offence, and

the State has not challenged that acquittal.

Hence it is not necessary to consider that

aspect further. Suffice to say that the wrong

finding of the learned Sessions Judge on that

question will not disentitle him to positively

CRA 108/09 46

find the motive alleged by the prosecution. On

the evidence we have no hesitation to hold

that appellant was demanding deceased

Thressiamma to transfer one acre property

standing in her name, in his favour which was

not agreed by the wife and appellant was

treating her with cruelty. Evidence also

establishes that even on the night of that

fateful night appellant had treated her with

cruelty, which compelled the deceased to go to

the house of PW4 and contact PW5 over phone to

request her to take her to her house on the

next day. Appellant reached the house of PW4

and questioned her chastity alleging illicit

relationship with PW4 and scolded her and took

her to the house and even in the presence of

the five year old daughter beat her. Hence

prosecution has succeeded in establishing the

motive.

CRA 108/09 47

12. Though appellant had attempted to

explain the burns sustained by the deceased,

alleging that it was an accidental fire as she

had gone to the latrine with a kerosene lamp

and accidentally fire spread on the maxi and

the underskirt worn by the deceased, on the

evidence we cannot accept the case. Evidence of

PW10 with Ext.P4 postmortem certificate and the

details of burns noted in Ext.P14, including

the diagram prepared by the doctor at the time

of her examination, establish that there were

no burns on the lower limbs below the knee. If

it was a case of accidental fire and the

kerosene lamp taken by the deceased to go to

the bathroom touched the maxi and the

underskirt worn by the deceased and the fire

accidentally spread, the burn should have

started from the bottom and if that be so,

there should necessarily be burns on her lower

CRA 108/09 48

limbs. Absence of any burns on the lower limb,

rules out that possibility. More over, even the

case of the appellant, in his statement filed

at the time of his cross examination under

Section 313 of Code of Criminal Procedure, is

that he found the deceased standing in the

bathroom when he reached there by hearing the

cry and he poured water which was available in

the latrine and while so, the deceased had

fallen unconscious on the floor of the

bathroom. If that be the case and the

deceased was standing on the bathroom and her

dress was burning there should be burns on her

limbs. Ext.P3 scene mahazar shows that latrine

was part of the same bathroom having a total

dimension of 140 cm x 150 cm. and the entrance

to that room is from the east having a width of

60 cm x 162 cm and the door could be

closed by a wooden sheet from inside. It also

CRA 108/09 49

shows that a portion of the bathroom was

converted into a latrine and near the closet

there were two vessels, evidently for keeping

water. If the case of the appellant is true and

he found the deceased standing with fire

spreading on her body, appellant, without

sustaining burns, could not have entered the

latrine portion of the bathroom. He could not

have taken water and poured on the body of the

deceased from that room without sustaining

burns. More over, as according to the appellant

the deceased was standing on the floor of the

bathroom, fire should have spread on her dress

from the bathroom or after it got spread from

that portion of the room which was being used

as latrine and she would have come towards the

bathroom. If the dress has to catch fire from

the kerosene lamp and that too when sufficient

water is available in the vessel kept near the

CRA 108/09 50

closet, as any prudent woman she would have

poured water by taking from the latrine room.

More over, there is no possibility to catch

fire on her dress, while the deceased was

standing on the floor of the bathroom.

13. It is advantageous to bear in mind

the features of homicidal burning in Medical

Jurisprudnce, Toxicology and Forensic Science

for class room, investigation and court room

with case laws, Second Edition by Professor

(Dr.) A.S.Deoskar. The relevant portion at page

137 reads;

"Homicidal Burning This is not so common. It is difficult to kill active conscious person by burning. There may be evidence of making the subject unconscious or

semiconscious by poisoning or injury or gagging any tying hands. In most of such cases, he

CRA 108/09 51

or she remains in lying down position before starting of procedure of burning. Hence there are no burn injuries on the part touching the ground. Inflammable material will be detected more on other parts of body than vertex."

Hence absence of a burn on the part of the body

touching on the ground, namely, lower limb, is

definitely a clear indication of homicidal

burning. True, as there is no eye witness,

apart from the appellant, prosecution could not

unveil what really transpired in that bathroom

on that night, as to whether the appellant made

her unconscious before setting fire. In any

case, from the facts born out, accidental fire

could definitely be ruled out.

14. Similar is the case with the theory

of suicide. First of all when the prosecution

witnesses were examined, there was no case for

CRA 108/09 52

the defence that the deceased sustained burns

in an attempt to commit suicide. No material

whatsoever, was pointed to compel the deceased

to commit suicide and that too leaving behind

a five year old girl child. If it was a case of

suicide, definitely there should be a can or

any other vessel, containing the inflammable

material used for pouring it on her body before

setting fire. More over, if appellant and the

deceased were sleeping in one room and the

deceased decided to commit suicide and

proceeded to the bathroom, which is 8 meters

away from the house, in all probability she

would close the door before attempting to

commit suicide. Appellant has no case that the

door of the bathroom was closed from inside and

he had break opened the door. More over, if

appellant reached the bathroom on hearing the

cry, the cry could only be after sustaining

CRA 108/09 53

the burns in an attempt to commit suicide by

burning, appellant would not have found her

standing on her legs as claimed by him. In such

circumstances, we have no hesitation to hold

that possibility of the deceased sustaining

burns, in her attempt to commit suicide could

only be ruled out. If that be so, it is

definitely a case of homicide.

15. We have already found that appellant,

the deceased and PW6, the five year old

daughter alone were in the house on that day.

In such circumstances, appellant has definitely

a duty to explain what happened on that day. It

is necessary to bear in mind that under Section

106 of Evidence Act, when any fact is,

exclusively within the knowledge of any person,

the burden of proving that fact is upon him.

Illustration (b) appended to the section

provides that when A is charged with travelling

CRA 108/09 54

on a railway without ticket, the burden of

proving that he had a ticket is on him. When

the offence like a murder is committed within

the four walls of a house, the initial burden

to prove the case would undoubtedly be upon the

prosecution. But in such a case, the nature and

the amount of evidence to be led by the

prosecution cannot be of the same degree as is

required in other cases of circumstantial

evidence. The burden should necessarily be

comparatively of lighter character. Honourable

Supreme Court in Collector of Customs vs.

D.Bhoormall (1974 (2) SCC 544) considered this

question with respect to an offence under

Sections 167 and 178 A of Sea Customs Act and

held;

"on the principle underlying Section 106, Evidence Act, the burden to

CRA 108/09 55

establish those facts is cast on the person concerned; and if he fails to establish or

explain those facts, an adverse inference of fact may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person and in the result, prove him guilty".

That principles were followed in Balram Prasad

Agrawal vs. State of Bihar (1997 (9) SCC 338).

Honourable Supreme Court in State of West

Bengal vs. Mir Mohd.Omar (2000 (8) SCC 382),

analysing Section 106 of Indian Evidence Act

held;

"31. The pristine rule that the burden of proof is on the prosecution to prove the guilt

CRA 108/09 56

of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage

the offenders in serious offences would be the major beneficiaries, and the society would be the casualty. 32. In this case, when prosecution succeeded in establishing the aforenarrated circumstances, the Court has to presume the existence of certain facts. Presumption is a course recognised by the law for the Court to rely on in conditions such as this.

CRA 108/09 57

33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the

CRA 108/09 58

common course of natural events, human conduct etc. in relation to the facts of the case. 34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if accused would tell the Court what else happened to Mahesh at least until he was in their custody."

15. Honourable Supreme Court in

Trimukh Maroti Kirkan v. State of Maharashtra

CRA 108/09 59

(2006(10) SCC 681), considered the failure of

the accused to offer any explanation or the

effect of an explanation which is found to be

untrue and held;

"In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court (See State of T.N. v. Rajendran (1999(8) SCC 679 para 6); State of U.P v.

CRA 108/09 60

Dr.Ravindra Prakadh Mittal (1992 (3) SCC 300 para 39); State of Maharashtra v. Suresh (2000 (1) SCC 471 para 27); Ganesh Lal v. State of Rajasthan (2002 (1) SCC 731 para 15); and Gulab Chand v. State of M.P (1995 (3) SCC 574 para 4)."

It was held that where an accused is alleged to

commit murder of his wife and the prosecution

succeeds in leading evidence to show that

shortly before the commission of crime they

were seen together or the offence takes

place in the dwelling home where the husband

is normally residing, it has been consistently

held that if the accused does not offer any

explanation on how the wife received the

injuries or offers an explanation which is

found to be false, it is a strong circumstance

CRA 108/09 61

which indicate that he is responsible for

commission of the crime.

16. When the only explanation

offered by the appellant as to what transpired

on that night, is found to be false, it is

definitely an additional link in the chain of

circumstances establishing that it was the

appellant himself who poured the inflammable

material on the body of his wife and set fire

and caused her death by burns.

17. Learned Sessions Judge accepted

Ext.P9 as the dying declaration of the deceased

recorded by PW15 Premarajan. It reads;

"I above mentioned hereby declare that I have taken the dying declaration of pt. Mrs.Thresiamma, 34 yrs, hailing from Puthanparambu house, Aruvichal, Kannur on 11/5/05 at 11.00 p.m. She was in full

CRA 108/09 62

conscious at the time. She claimed that her husband Mr.Biju put fire on her after pouring kerosene in the toilet adjacent to the house at 3.00 Am on 11/5/05. Note-The victim Thresiamma told the statement in Malayalam and this is the English version of the same."

18. As per Ext.P9, it was recorded at

11 p.m on 11/5/2005. PW9 deposed that the time

noted was mistake and instead the correct time

was 11 a.m and it was wrongly shown as 11 p.m.

The fact that Thresiamma died at 1.35 p.m on

11/5/2005 is not disputed and proved by Ext.P14

and other evidence. Therefore, the dying

declaration could not have been recorded at 11

p.m and evidence of PW15 that it was a mistake

for 11 a.m can only be accepted. The evidence

of PW15 is that he was instructed by the

Superintendent to record the dying declaration

CRA 108/09 63

of Thresiamma and he was in charge of S3 unit

on that day and he recorded her statement in

Ext.P9. Evidence of PW15 is that though he can

understand Malayalam, he cannot write

Malayalam, as he belongs to Karnataka State

though he is working in Pariyaram Medical

College Hospital, Kerala. According to PW15 he

had recorded the statement of the deceased that

it was her husband who set fire after pouring

kerosene on her. It was as disclosed by her

and it is her dying declaration. Though learned

counsel argued that as there are other doctors

who can write Malayalam, PW15 who does not

know how to write Malayalam, recorded the dying

declaration in Engligh and that itself is

suspicious. It was also argued that due to that

defect Ext.P9, is to be discarded. In spite of

the fact that PW15 disclosed that he he can

understand Malayalam, though he cannot write

CRA 108/09 64

Malayalam, the capacity of PW15 to understand

Malayalam, if spoken to him was not tested or

challenged in cross examination. Therefore, it

is to be taken that PW15 could follow Malayalam

and what was disclosed to him by the deceased

in Malayalam was recorded in English in Ext.P9.

On going through the evidence, we find no

reason whatsoever, to doubt the integrity of

PW15. We find no valid reason for PW15, to

fabricate a dying declaration or to join the

prosecution to create one. Argument of the

learned counsel is that as PW22 deposed that

he instructed the Sub Inspector to get a dying

declaration recorded, it could only be after

receipt of the copy of FIR which according to

PW22 was 12 noon and if so, PW15 could not

have recorded Ext.P9 at 11 a.m as Ext.P10

request from the Sub Inspector which in turn

could only be on the instruction of PW22

CRA 108/09 65

received only after 12 noon. True, PW22 deposed

that he had instructed the Sub Inspector to get

a dying declaration recorded as Judicial First

Class Magistrate, Payyannur who has to normally

record the dying declaration is on leave and

his charge was with Judicial First Class

Magistrate, Kannur. Ext.P10 with the evidence

of PW16 police constable show that request was

made by the Sub Inspector to the Superintendent

of the Medical College to get the dying

declaration recorded. But it is to be born in

mind that PW22 was at Taliparamba and from

Taliparamba he could not have ascertained the

position of the injured and decide whether

dying declaration of the injured could be

delayed till the Magistrate of Kannur could be

made available. Such decision could have been

taken only after getting the details of the

physical condition of the injured. PW22 was not

CRA 108/09 66

specifically asked whether he had given the

instructions to the Sub Inspector after receipt

of the copy of the FIR. True, PW22 did not

depose that he got information earlier to the

receipt of copy of the FIR. But on that ground

we find no reason to suspect the genuineness

of Ext.P9. We find that immediately after the

arrest of the appellant, he was produced before

the learned Magistrate with a remand report on

12/5/2005. The remand report discloses that a

dying declaration has already been recorded

which strengthens the genuineness of Ext.P9.

Learned counsel also argued that though Ext.P9

was recorded on 11/5/2005, Ext.P9(b) and Ext.P9

(a) show that it was sent to the Magistrate

from Medical College, Pariyaram only on

23/8/2005 and there is no explanation for the

delay. True, Ext.P9(a) forwarding letter shows

that Ext.P9 was forwarded from the hospital

CRA 108/09 67

only on 23/8/2005 by the Superintendent and

Ext.P9(b) envelope shows that it was sent

directly to the learned Magistrate in a

confidential cover by post. As the dying

declaration was recorded as proved by the

evidence of PW15 on 11/5/2005 itself, and the

evidence of PW15 shows that he entrusted Ext.P9

to the Superintendent, Medical College

Hospital under whose instructions he recorded

the dying declaration, as Ext.P9 was sent in a

confidential cover to the Magistrate directly,

We find no reason to suspect its genuineness

or to discard Ext.P9 on the ground of delay.

19. The fact that PW15 does not know

to write Malayalam and the dying declaration

was recorded not in the language spoken to by

the deceased is not fatal. A dying declaration

made in Bagri language which was recorded by

the Magistrate in Hindi was considered by the

CRA 108/09 68

Honourable Supreme Court in State of Rajasthan

vs. Bhup Singh (1997 (10) SCC 675). Failure

to record the dying declaration in the same

language and not in question and answer form

were considered therein. It was held,

"10. Assuming that the deceased gave her statement in her own language, the dying declaration would not vitiate merely because it was recorded in a different language. We bear in mind that it is not unusual that courts record evidence in the language of the court even when witnesses depose in their own language. Judicial officers are used to the practice of translating the statements from the language of the parties to the language of the court. Such translation process would not upset either the admissibility of the statement or its reliability,

CRA 108/09 69

there are other reasons to doubt the truth of it. 11. Nor would a dying declaration go bad merely because the magistrate did not record it in the form of questions and answers. It is axiomatic that what matters is the substance and

not the form. Questions put to the dying man would have been formal and hence the answers given are material. Criminal courts may evince interest in knowing the contents of what the dying person said and the questions put to him are not very important normally. That part of the statement which relates to the circumstances of the transaction which resulted in his death gets the sanction of admissibility. Here it is improper to throw such statement overboard on a pedantic premix that it was not recorded in the

CRA 108/09 70

form of questions and answers. (Vide Ganpat Mahadeo Mane v. State of Maharashtra (1993 Supp (2) SCC 242)).

20. True, in Ext.P9 it was not

specifically recorded that Thresiamma was fit

to give a declaration. What is stated therein

is that "she was in full conscious at that

time". When PW15 was examined he also deposed

that she was oriented. Argument of the learned

counsel appearing for the appellant is that

consciousness and fit to give statement are two

different stages and unless the doctor

certifies that she was in a fit state of mind

to give a statement, Ext.P9 cannot be

accepted. Though reliance was placed on the

decision in Paparambaka Rosamma's case (supra)

whereunder, in the dying declaration the doctor

had appended a certificate to the effect that

CRA 108/09 71

patient was conscious while recording the

statement, and hence it was held that it would

not be safe to accept the dying declaration as

true and genuine and was made when the injured

was in a fit state of mind since the

certificate of the doctor was only to the

effect that patient is conscious while

recording the statement, we find that a five

Judge Bench of the Apex Court considered the

said decision in Laxman's case (supra) and

held that the observation in that case to the

effect that in the absence of medical



declaration, it would be very much risky to

accept the subjective satisfaction of a

Magistrate, who opined that the injured was in

a fit state of mind at the time of making a

declaration is not a correct enunciation of the

CRA 108/09 72

law. It was held;

"It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P (1997 (7) SCC 695) must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of

CRA 108/09 73

Gujarat (1999 (9) SCC 562)."

The Constitution Bench held;

"The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on death bed is so solemn and serene, is the reason in law to accept the

CRA 108/09 74

veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination, the court insist that the dying declaration should be of such a nature as to inspire full

confidence of the court in its truthfulness and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental

CRA 108/09 75

condition to make the dying declaration look up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally

before death ensues and is reduced to writing by someone like a magistrate or a doctor

CRA 108/09 76

or a police officer. When it is recorded, no oath is necessary nor is the presence of a magistrate is absolutely necessary, although to assure authenticity it is usual to call a magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required isthat the person who records a dying declaration must be satisfied that the deceased was in a fit

CRA 108/09 77

state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be

acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."

Therefore, on the ground that in Ext.P9, PW15

only recorded that the injured was "in full

conscious" at the time when it was recorded and

did not specifically certify that she was in

full state of mind, the dying declaration

cannot be discarded. In Goverdhan Raoji

Ghyare's case (supra) considering the fit state

CRA 108/09 78

of mind and conscious state of mind, their

Lordships held, "the distinction sought to be

made out by the learned Sessions Judge that

'fit state of mind' and 'conscious state of

mind' were not the same thing, is too

hypertechnical". Therefore, on that ground also

Ext.P9 dying declaration cannot be discarded.

21. The principle on which dying



22. The principles to be followed in




corroboration. (Munnu Raja vs. State of M.P.

(1976 (3) SCC 104), State of U.P vs. Ram Sagar


State of Bihar (AIR 1983 SC 164) and

S.P.Devaraji vs. State of Karnataka (AIR 2009

SC 1725)). If the Court is satisfied that the

dying declaration is true and voluntary it can

be the basis for conviction, even if there is

no corroboration. (State of U.P vs. Ram Sagar


State of Bihar (AIR 1983 SC 164)). The Court

has to scrutinise the dying declaration

carefully and must ensure that the declaration

is not the result of tutoring, prompting or

imagination. (K.Ramachandra Reddy vs. Public

Prosecutor (1976 (3) SCC 618)). If the dying

declaration is suspicious it should not be

acted upon without corroborative evidence.

(Rasheed Beg vs. State of M.P.(1974 (4) SCC

264). The dying declaration which suffers from

infirmity cannot form the basis of conviction

(Ram Manorath vs. State of U.P (1981 (2) SCC

654).

CRA 108/09 81

23. Normally the Court in order to

satisfy whether deceased was in a fit mental

condition to make the dying declaration look up

to the medical opinion. But where the eye

witness has said that the deceased was in a fit

and conscious state to make this dying

declaration the medical opinion cannot prevail.

(Nanahau Ram vs. State of M.P.(1988 Supp SCC

152).

24. There is no law or rule that a

dying declaration is to be recorded only by a

Magistrate. The legal position is settled in

Ramavati Devi vs. State of Bihar (AIR 1983 SC

164). Honourable Supreme Court in B.P.Agarwal

& another vs. Dhanalakshmi Bank Ltd & Ors. (AIR

2008 SC 1431) analysing the earlier decisions

held;

"Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross examination are dispensed with in case of a dying declaration. Since the accused has no power of cross- examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and

identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement without there being the doctor's

opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essentially a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise."

The evidence of PW22 establish that a

Magistrate was not available to record the

dying declaration as the local Magistrate was

on leave and getting it recorded by the

Magistrate who was in charge would take time

and the condition of the injured did not permit

to delay the recording. It was in such

circumstances, PW15 happened to record the

dying declaration pursuant to Ext.P10 request

as authorized by the Superintendent of the

Medical College Hospital, PW15, being a doctor

of the same Medical College Hospital is

competent to consider the fit state of mind of

the injured and decide whether a dying

declaration could be recorded. Evidence of PW15

with Ext.P9 establish that injured Thressiamma

was in fit state of mind to record her dying

declaration and PW15 recorded it. Though

learned counsel based on the entries in Ext.P14

case sheet argued that at 4.05 a.m fortwin,

which is a sedative, was administered to

Thressiamma and fact that the subsequent

entry shows that she was on sedation and was

disoriented casts sufficient doubt on fitness

of the state of mind of Thressiamma. Ext.P14

establishes that though fortwin was

administered at 4.55 a.m subsequently, it was

again directed to be administered after

recording the dying declaration. There is entry

in Ext.P14 regarding the recording of dying

declaration. Though learned counsel argued that

those entries are subsequently created, we find

absolutely no reason to doubt the genuineness

of such entries as neither the doctors nor

hospital authorities have any reason to

fabricate the records, especially when no such

motive was even alleged. On appreciating the

entire evidence, we have no hesitation to

record evidence of PW15 and Ext.P9. They

establish that the injured before her death

disclosed to PW15 that she was set fire after

pouring the inflammatory material by her

husband, the appellant.

25. Argument of the learned counsel

is that as Ext.P16 with the evidence of PW23

shows that burned portion of maxi and skirt

examined at the laboratory showed that it does

not contain kerosene but petrol and for that

reason prosecution case is to be thrown out.

Evidence of PW23 with Ext.P16 establish that

kerosene and petrol are products of the same

mineral oil. The distinguishing features are

Rf value and colour. Rf value of petrol is

0.91, diesel is 0.85 and kerosene is 0.89. So

also, the colour of petrol is pink, diesel is

blue and kerosene is purple. Chemical analysis

as revealed from Ext.P16 report shows that Rf

value found was 0.91 and colour was pink. Both

the characteristics of petrol and not kerosene.

It is based on these findings it was certified

that presence of petrol was deducted in the

remnants of the burned maxi and skirt of the

deceased. Evidence of PW23 establish that when

remnants of the burned articles are examined,

there is possibility of error for the tests of

colour as well as Rf value. Therefore, based on

the said findings in Ext.P16 report alone, it

is not possible to hold that what was poured on

the deceased was petrol and not kerosene. Both

are the same mineral oil and are inflammatory

materials. More over, the dress examined was

polyester which is also the product of crude

oil like petrol. The possibility of the

difference in the RL value and colour from that

of kerosene could also be due to this factor.

Even if it is taken that instead of kerosene,


fire and caused her death, for the reason that

prosecution case was that it was kerosene which

was poured, appellant cannot be found not

guilty. Even the benefit of reasonable doubt

cannot be granted. Whether it is petrol or

kerosene, when both are inflammable, and the

evidence establish that it was the appellant

who poured the inflammatory material on the

deceased, set fire and caused her death the

difference of kerosene and petrol is not very

relevant. It is necessary to bear in mind that

rule of benefit of reasonable doubt cannot be

at the expense of dispensation of justice and

all acquittals cannot be good, regardless of

justice to the victim and the community.

Three decades back, Krishna Iyer,J. in Sivaji

Sahebrao Bobade and another vs. State of

Maharashtra (AIR 1973 SC 2622) held;

"The evil of acquitting a guilty person light-heartedly as a learned author* (Glanville Williams in Proof of Guilt) has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a, public demand for harsher legal presumptions against indicted

'persons' and more severe

punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ..." In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents."

The position has been reiterated in State of

Punjab vs. Karnail Singh (2003 (11) SCC 271)

as follows;

"12.Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea

that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See : Gurbachan Singh v. Satpal Singh and others, (AIR 1990 SC 209)). Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava, (AIR 1992 SC 840)). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in

the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh and another v. State Delhi Admn.), (AIR 1978 SC 1091). Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v.

Director of Public Prosecution (1944 AC (PC) 315)) quoted in State

of U.P. v. Anil Singh, (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. (See : Shivaji Sahabrao Bobade and another v. State of Maharashtra, (1974 (1) SCR 489)) , State of U.P. v. Krishna Gopal and another, (AIR 1988 SC 2154) and Gangadhar Behera and others v. State of Orissa, (2002 (7) Supreme 276)."

26. Though learned Sessions Judge relied

on Section 6 of Indian Evidence Act and the

principles of res gestae relying on the

evidence of PW2 that the deceased had disclosed

to him on the way to the Medical College, while

being taken in his vehicle that it was done by

the appellant, on appreciating the evidence in

the proper perspective, we find it not safe to

rely on that evidence of PW2. Evidence of PW2

establishes that he found the deceased

unconscious and she was taken in his jeep,

driven by his son, along with the appellant.

According to PW2, before they reached the Co-

operative Hospital, Payyannur, he asked the

appellant what happened and appellant did not

reply and the deceased told him that it was

done by the appellant. Though learned Sessions

accepted it, we find it difficult to believe.

the evidence of PW2 is that deceased was not in

a position to speak either when he found her at

the bathroom or when the doctor of the Co-

operative hospital saw her. In such

circumstances, it cannot be believed that on

the way deceased regained consciousness and

disclosed the cause for the burns and that too

when PW2 asked the appellant the cause. In any

case, Section 6 of the Evidence Act cannot be

made invoked as under Section 6 of the Act,

relevancy of facts could only be those

statements contemporaneously made with the acts

forming the incident involved. Section 6 of the

Evidence Act is an exception to the general

rule whereunder hearsay evidence becomes

admissible. Section 6 provides that facts which

though not in issue, are so connected with a

fact in issue as to form part of the same

transaction, are relevant, where they occurred

at the same time and places. Honourable Supreme

Court in Sukhar vs. State of U.P (1999 (9) SCC

507) considered the principles of Section 6 of

Evidence Act and held.

"6. Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is

required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. The aforesaid rule as it is stated

in Wigmore's Evidence Act reads thus : "Under the present Exception [to hearsay] an utterance is by hypothesis, offered as an assertion to evidence the fact asserted (for example that a car-brake was set or not set), and the only condition is that it shall have been made spontaneously, i.e. as the natural effusion of a state of excitement. Now this state of

excitement may well continue to exist after the exciting fact has ended. The declaration, therefore, may be admissible even though subsequent to the occurrence, provided, it is near enough in time to allow the assumption that the exciting influence continued." 7. Sarkar on Evidence (Fifteenth Edition) summarises the law relating to applicability of Section 6 of the Evidence Act thus : "1. The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto unless such facts are part of a transaction

which is continuous. 2. The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past. 3. The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and by- standers. In conspiracy, riot andc. the declarations of all concerned in the common object are admissible. 4. Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated.".

The fact that appellant was being taken to the

hospital after sustaining injuries, do not form

part of same transaction in which she

sustained the burns. Hence Section 6 of the

Evidence Act cannot have any application, as

held by the Apex Court in Sukhar's Case

(supra) and reiterated in Bhairon Singh vs.

State of Madhya Pradesh (AIR 2009 SC 2603).

Similarly, though evidence of Pws.3 and 4 were

relied on, on appreciating the evidence, we

find it unsafe to rely on their evidence on the

dying declaration. Though PW3 deposed in chief

examination that deceased had disclosed the

cause for her burns to her, in cross

examination she deposed it as disclosed to her

by PW5. Though PW5 claimed that deceased

disclosed as to how she sustained burns,

considering the physical condition of the

deceased as is clear from Ext.P14 case records,

it cannot be believed that she had disclosed

the cause to PW5 from the hospital. But the

fact that the cause of burns allegedly

disclosed by the deceased to PWs.3 and 4 are

not found trustworthy will not affect the

prosecution case.

27. On appreciating the entire

circumstantial evidence pointed out earlier

with the dying declaration, it is conclusively

established that it was the appellant who set

fire on Thressiamma, his deceased wife, after

pouring the inflammable liquid. The facts so

established are complete and taken cumulatively

should form a chain which is complete. There is

no room for any escape from the conclusion that

within all human probability the crime was

committed by the appellant and none else. The

circumstances, so established are complete and

incapable of explaining any other hypothesis

that of the guilt of the appellant. They are

consistent with the guilt of the accused and

are inconsistent with his innocence.

We confirms the conviction and sentence

for the offence under Section 302 of Indian

Penal Code.

Appeal is dismissed.

M.SASIDHARAN NAMBIAR, (Judge).

P.BHAVADASAN, (Judge).

uj.

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