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Crl.A. No. 108 of 2009 - Biju @ Joseph Vs. State of Kerala, (2012) 259 KLR 379

posted Jul 9, 2012, 9:29 AM by Law Kerala   [ updated Jul 9, 2012, 9:30 AM ]

(2012) 259 KLR 379

 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 ( ) 

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


APPELLANT(S)/ACCUSED: 

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BIJU @ JOSEPH PUNNATHANATHU HOUSE,PERUMTHATTA HOUSE PERUMTHATTA AMSOM, THAVADISSERY,AALAKKODE KANNUR. 
BY ADVS.SRI.O.V.MANIPRASAD SRI.SOJAN MICHEAL 

RESPONDENT(S)/COMPLAINANT: 

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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. 

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CRL.A.NO.108 OF 2009 

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Dated 3rd July, 2012 

Head Note:-

Indian Evidence Act, 1872 - Section 32 - Dying Declaration - Dying declaration recorded by doctors or any person with credibility in society can be accepted as valid evidence after analysing its evidentiary value as per law. 
Indian Evidence Act, 1872 - Section 32 - Dying Declaration - There is no law or rule that a dying declaration is to be recorded only by a Magistrate.  
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
Indian Evidence Act, 1872 - Section 32 - Dying Declaration - Dying declaration was recorded not in the language spoken to by the deceased is not fatal.  
Held:- 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, there are other reasons to doubt the truth of it. 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 form of questions and answers.

J U D G M E N T 


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 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 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 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 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 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, 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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. 

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 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 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 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 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 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 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 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 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 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 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. 


9. Learned counsel appearing for the appellant pointed out that appellant was charged for the offence under Section 498 A of Indian Penal Code also and learned Sessions 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 appellant not guilty of the offence under 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 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 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 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 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 property or valuable security or on account of 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 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 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.


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 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 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 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  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 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 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 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 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 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. 
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 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 (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. 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 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 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 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 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 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 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 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 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, 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 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 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 certification that the injured was in a fit state of mind at the time of making the 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 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 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 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 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 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 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 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 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 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. 


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


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, appellant poured petrol on the deceased and set 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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