Sudhan Vs. State of Kerala - Court Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 21ST DAY OF AUGUST 2013 30TH SRAVANA, 1935 CRL.A.No. 2541 of 2008 ( ) --------------------------- SESSIONS CASE NO.503/2003 of ADDITIONAL DISTRICT & SESSIONS COURT (FAST TRACK-I), THIRUVANANTHAPURAM CP 3/2002 of J.M.F.C.-III,NEYYATTINKARA APPELLANT(S)/ACCUSED: ----------------------- SUDHAN, S/O. RAMACHANDRAN, VAISAKH BHAVAN, VENGAPOTTA, KAZHIVOOR DESOM KANJIRAMKULAM VILLAGE. BY SENIOR ADVOCATE SRI.M.K.DAMODARAN ADVS. SRI.ALAN PAPALI SRI.SOJAN MICHEAL RESPONDENT/COMPLAINANT: ---------------------------- STATE OF KERALA (CRIME NO.58/2001 OF KANJIRAMKULAM POLICE STATION, CIRCLE INSPECTOR OF POLICE, POOVAR) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-07-2013, THE COURT ON 21-08-2013 DELIVERED THE FOLLOWING: K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.

----------------------------------------------- Crl. Appeal No.2541 of 2008 ----------------------------------------------- Dated 21st August, 2013. JUDGMENT

Joseph Francis, J.

This appeal is filed by the accused in S.C.No.503 of 2003 on the file of the Additional Sessions Court (Fast Track Court - I), Thiruvananthapuram.

2. The prosecution case is briefly as follows : The accused Sudhan married Bindu as per customary rites on 2.9.1989 and in that wedlock, two children were born to them. The prosecution alleges that the accused began to ill treat Bindu, demanding more amounts on different occasions and as Bindu was not amenable to the pressure tactics, on 28.2.2001 at about 11.45 in the night, the accused poured kerosene on the body of Bindu and set her on fire at the house of accused with the intention to kill her and ensured her death by delaying to take her to the hospital and as a result of serious burn injuries sustained, Bindu succumbed to the injuries on 1.3.2001 at about 5.30 a.m. at the Medical College Hospital, Thiruvananthapuram. CW1, the father of deceased Bindu gave Ext.P12 F.I. statement before the police stating that deceased Crl. Appeal No.2541 o”

2. Bindu had told him that accused poured kerosene and set her on fire. Before the Additional Sessions Court, on the prosecution side, PW1 to PW23 were examined and Exts.P1 to P21(a) and Ext.X1 were marked and MO1 to MO8 were identified. On the defence side, Ext.D1 was marked. The learned Additional Sessions Judge, on considering the evidence on record, found that the accused committed the offences punishable under Section 498A and Section 302 of the Indian Penal Code and the accused was convicted and sentenced to undergo rigorous imprisonment for three years under Section 498A of the Indian Penal Code and imprisonment for life and a fine of `25,000/-, in default to undergo simple imprisonment for a further period of two years under Section 302 of the Indian Penal Code and the sentences were ordered to run concurrently. Against that conviction and sentence, the accused filed this appeal.

3. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor.

4. At the time of hearing, the learned counsel for Crl. Appeal No.2541 o”

3. the appellant raised the following arguments: There is no direct evidence to prove the prosecution case. The prosecution case is based on circumstantial evidence. The circumstances from which the conclusion of guilt is sought to be drawn is not fully established. The facts proved beyond doubt were not consistent with the only hypothesis of the guilt of the accused. The proved circumstances are not conclusive in nature to find the accused guilty of the offences. The chain of evidence is not complete and the evidence adduced is consistent with the innocence of the accused and the prosecution has not proved that in all probability, the act must have been done by the accused. The court below has not ruled out the possibility of suicide holding that the accused has not taken a defence to that effect. PW4, the son of the deceased, who is now aged 15 years did not support the prosecution case as also the neighbours, PW6, PW7 and PW8, the driver of the car in which the deceased was taken to the hospital. The burn injury sustained by the accused has not been explained by the prosecution. The accused was arrested on 3.3.2001 and the Crl. Appeal No.2541 o”

4. burn injuries sustained by the accused have been noted in Ext.P17 remand report dated 4.3.2001. It is stated in Ext.P17 remand report that the accused had burn injuries on the right hand throughout and on his fingers, on his chest below the nipple and above the right knee. The accused had attempted to blow out the fire and hence these injuries have been caused. The accused had taken water from the nearby tank and poured on the deceased to blow out the fire and hence these injuries have been caused. In Ext.P12 F.I. statement, CW1 has stated that he thinks that the son-in-law might have poured kerosene over the body of the deceased Bindu and thereby she succumbed to the injuries. If the deceased had told him that the accused had poured kerosene over her and set her ablaze, CW1 would not have stated that he thinks that the accused might have done as stated above, when he gave the F.I. statement on 1.3.2001 at 11 a.m. The chain of circumstances narrated by the trial court to fasten the guilt of the accused is not a complete chain of evidence to come to the conclusion that the accused has committed the offence. The offences under Crl. Appeal No.2541 o”

5. Sections 498A and 302 of the Indian Penal Code are not made out against the accused on the evidence adduced by the prosecution. The learned Public Prosecutor supported the judgment of the court below.

5. There is no eye witness to the actual occurrence. The prosecution case mainly depends on the circumstantial evidence. CW1, the father of Bindu, who gave Ext.P12 F.I. statement before the police passed away even before the trial and therefore, he could not be examined and Ext.P12 F.I. statement was marked through PW14, the Sub Inspector of Police. Ext.P12 F.I. statement was recorded on 1.3.2001 at 11 a.m. PW1 Sudarsanan is the brother of CW1. PW1 was declared hostile as he was reluctant to admit that CW1 had informed him that deceased Bindu had told CW1, on the way to the hospital, that the accused poured kerosene and set ablaze her. PW1 has no direct knowledge regarding the occurrence.

6. PW2 is another relative of deceased Bindu. According to him, he got information in the night and he reached the Medical College Hospital in the morning. The Crl. Appeal No.2541 o”

6. accused and the parents of deceased Bindu were also present in the hospital. According to this witness, CW1 had told him that on the way to the hospital, deceased Bindu had disclosed that the accused poured kerosene on her and set ablaze her. PW3 is another relative of deceased Bindu. He also supported the version of PW2 that CW1 disclosed that deceased told him that the accused poured kerosene and set ablaze her. PW4 is the son of the accused who was present in the house when the incident occurred. He was around 9 years at the time of commission of the offence. He was declared hostile to the prosecution. In cross examination, he has stated that he was suffering from cold on that day and hence he did not go to the school and around 11 O' clock in the night, he woke up and asked water and his mother went to the kitchen to fetch hot water for him. After some time he heard a sound "..................." of his mother from the kitchen and then the father went towards the kitchen on hearing the noise and in the meanwhile the witness went into sleep. He woke up in the morning and his grand mother informed him that deceased Bindu was taken to Crl. Appeal No.2541 o”

7. the hospital with burn injuries from a kerosene lamp. PW5 is the President of Kottukal Grama Panchayat and he is a witness of Ext.P2 inquest report. PW6 is a neighbour of the accused. He speaks about hearing a screaming sound and he woke up and saw the accused fetching water and going into the house. When he went to the house he saw Bindu lying in the kitchen with burn injuries. He went with his scooter and informed the matter to the parents of deceased after hiring a car for taking Bindu to the hospital. This witness also declared hostile to the prosecution. According to this witness, the parents of deceased Bindu never reached the house in the night. He admitted that he hired the car which was driven by PW8 to take the deceased to the hospital. He had stated that one neighbour Balakrishnan, accused, Chandran and Vaidehi went along with the deceased in the car to the hospital. PW7 Harichandran is also another neighbour. He also heard the sound of a woman and he rushed to the spot. He also saw deceased Bindu lying in the kitchen with burn injuries. He also admitted that there was smell of kerosene at that time. According to him, somebody had gone Crl. Appeal No.2541 o”

8. to inform the parents of Bindu and he left the scene after the deceased was taken to the hospital. He was also declared hostile to the prosecution. PW8 is the driver of the car in which the deceased was taken to the hospital. He was also declared hostile to the prosecution. He stated that while deceased was taken to the hospital in the car the deceased told the accused ".................................................". PW9 is Dr.Sureshkumar who was the casualty doctor of the Medical College Hospital, Thiruvananthapuram. He attended the injured at 1.25 a.m. on 1.3.2001 and issued Ext.P7 wound certificate. The alleged cause is stated as "..................................................................." as spoken by her husband. According to the casualty doctor, the burn was more than 90% over the whole body. The deceased was conscious when the husband disclosed the alleged cause to the casualty doctor and the patient did not say anything. PW10 is the Village Officer, Kanjiramkulam who prepared Ext.P8 scene plan on the basis of Ext.P10 scene mahazar dated 2.2.2001. PW11 is also another neighbour of the accused. He was also declared hostile to the prosecution. Crl. Appeal No.2541 o”

9. He was a person, who accompanied the deceased to the hospital. The deceased told the accused "..............................................." PW12 proved Ext.P10 scene mahazar. PW13 is the Deputy Police Surgeon, who conducted the post mortem on deceased Bindu and issued Ext.P11 post mortem certificate.

7. PW13 deposed that deceased Bindu had sustained 92% of burn injuries and that she died of burn injuries. PW15 is the mother of deceased Bindu who was not cited as a witness in the charge sheet. She was examined as additional witness. She had stated that CW1 got information about the occurrence around mid night and they were taken in a car to the house of the accused. Her husband entered the house and the deceased daughter was seen lying inside the kitchen in the house. CW1 had stated that deceased daughter had told him about what has happened. She could not say what was disclosed by the daughter. According to her, the daughter was in an unconscious state. To a question put in cross examination, she replied that the deceased did not say Crl. Appeal No.2541 o”

10. anything to CW1 or to the said witness. According to her, she was not questioned by the police. In the 313 statement, the accused stated that death of his wife Bindu was due to accidental burn injuries sustained and he tried his level best to blow out the fire and in that attempt, he also sustained injuries. The accused took water from the tank and poured it over the deceased to blow out the fire. He along with others, took the deceased to Medical College Hospital, Thiruvananthapuram. On the way to the hospital, deceased stated that "................................................".

8. As already stated, the prosecution case is mainly based on circumstantial evidence. In a case based on circumstantial evidence, it is now well settled that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond reasonable doubt and the established circumstances should be consistent with the hypothesis of the guilt of the accused and Crl. Appeal No.2541 o”

11. totally inconsistent with his innocence. The court has to be, on its guard to avoid the danger of allowing suspicion to take the place of proof and has to be watchful to avoid the danger of being swayed by emotional considerations, however strong they may be, to take the place of proof. In the present case, PW4, the son of the accused and the deceased did not support the prosecution case. PW15, who is the mother of deceased Bindu also does not support the prosecution case. Ext.P7 wound certificate would show that when deceased was admitted in Medical College Hospital, Thiruvananthapuram, the accused told the doctor in the presence of Bindu that she was caught in fire from kerosene lamp. If deceased Bindu had told CW1 that she was set ablaze by the accused as stated in Ext.P14 F.I. statement, CW1 would not have allowed the accused to give statement to the doctor regarding the incident as stated in Ext.P7. The evidence on record would show that when deceased Bindu was caught in fire, the accused tried to save her by pouring water on her body from the water tank. The accused also arranged PW6 to fetch a taxi to take Bindu to Crl. Appeal No.2541 o”

12. the hospital and the accused accompanied Bindu to the hospital in the taxi car. The accused also made arrangements to inform the parents of Bindu about the occurrence. The accused did not abscond after the occurrence. PW15 has no case that when they reached the house of the accused immediately after the occurrence, Bindu told CW1 about the incident incriminating the accused. If deceased Bindu had told CW1 about the occurrence, CW1 would have told about it to PW15. Therefore, the testimony of PW2 and PW3 that deceased had told CW1 that accused poured kerosene on her and set ablaze her, cannot be believed. There is no suspicious circumstances to connect the accused with the crime. In view of the above aspects of the matter, we are of the view that the learned Additional Sessions Judge is not justified in convicting the accused under Sections 498A and 302 of the Indian Penal Code. Accordingly, this appeal is allowed. The appellant/accused in S.C.No.503 of 2003 on the file of the Additional Sessions Court (Fast Track Court - I), Thiruvananthapuram is found not guilty of the offence under Crl. Appeal No.2541 o”

13. Sections 498A and 302 of the Indian Penal Code and he is acquitted and set at liberty, if his further detention is not required in connection with any other case. The Registry is directed to communicate the gist of this judgment to the jail authorities concerned forthwith for compliance. Sd/- K.T.SANKARAN, JUDGE. Sd/- M.L.JOSEPH FRANCIS, JUDGE. tgs (true copy)