Cheniyan vs State Of Kerala

C.S.Sudha, J.

This appeal under Section 374(2) Cr.P.C. by the sole accused in S.C.No. 58/2015 on the file of the Court of Session, Kasaragod has been filed challenging the conviction entered and sentence passed against the accused for the offence punishable under Section 302 IPC.

The prosecution case as stated in the charge sheet is as follows – the deceased Karthiyayani on being married to the accused was living along with him for the past sixteen years in the house bearing No. V/75 (VI/473), Eleri Panchayat. While so, the accused used to constantly harass Karthiyayani mentally and physically. On 14/04/2014 pursuant to a quarrel, Karthiyayani did not cook food and went and lied down in the kitchen on a mat. Angered by the conduct of Karthiyayani, the accused with the intention of killing her at 20:45 hrs, doused Karthiyayani with kerosene and set her ablaze. Due to the severity of the burns sustained, Karthiyayani succumbed to the injuries on 18/04/2014 at 12.45 p.m. Hence the accused is alleged to have committed the offences punishable under Sections 498A and 302 IPC.

On the final report being submitted, the jurisdictional magistrate after complying with the statutory formalities, committed the case against the accused to the Sessions Court, which court took the case on file as S.C.No.58/2015. On appearance of the accused before the Court of Session, he was furnished with the copies of all the prosecution records. On 09/04/2015, the learned Additional District and Sessions Judge-I, Kasaragod framed a charge for the offence punishable under Section 302 IPC alone against the accused, which was read over and explained to the accused to which he pleaded not guilty.

The prosecution examined PWs.1 to 17 and got marked Exts.P1 to P15 and MO.1 to MO.8. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.

As the Sessions Court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence has been adduced by the accused.

On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offence punishable under Section 302 IPC and hence convicted and sentenced him to imprisonment for life and to a fine of ₹25,000/- for the offence punishable under Section 302 IPC and in default of payment of fine, to undergo rigorous imprisonment for a period of two years. The fine amount if realized has been directed to be paid to PW3, the daughter of the deceased, as compensation under Section 357(1)(b) Cr.P.C. Set off for the period from 17/04/2014 to 30/04/2017 has also been allowed.

The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused by the trial court is sustainable or not.

Heard Sri.K.Jagadeesh, the learned State Brief for the appellant and Ms.Ambika Devi S., the learned Special Public Prosecutor.

The fact that Karthiyayani died due to the burns sustained, is established by the testimony of PW7, PW10 and PW11. PW7, Casualty Medical Officer, Pariyaram Medical College Hospital, Kannur deposed that on 15/04/2014, a patient by name Karthiyayani, 35 years old had been brought to the emergency department at 12.25 a.m. with history of burns. On examination, the patient was found conscious as she was obeying the directions given. There were burns on her face, neck, chest, both upper and lower limbs and genitalia as well as on her back. There was approximately 95% burns on the body. The patient was admitted in the burns ICU on the same day. The patient expired on 18/04/2014. The certificate issued by her is Ext.P4. PW10, Assistant Professor, Department of Forensic Medicine, Academy of Medical Science, Pariyaram conducted the postmortem examination of Karthiyayani on 19/04/2014 as per the requisition dated 19/04/2014 received from PW17. The injuries noted by him are:

“ B. Injuries (ANTEMORTEM) :-

Superficial infected burns with charring of cuticle was seen all over the body except both feet. White ointment was seen applied all over the body.

Sutured wound 3cm long on the inner aspect of right ankle (surgical).

OPINION AS TO CAUSE OF DEATH:-DIED OF INFECTED BURNS."

According to PW10, his opinion as to cause of death is due to infected burns. The postmortem certificate issued by PW10 has been marked as Ext.P6.

9.1. PW11, Scientific Assistant, District Crime Record Bureau, deposed that he had visited the scene of occurrence and had collected material objects, namely, the remnants of partly burnt cloth pieces from the kitchen of the house as well as soil from the scene which were packed, sealed and handed over to the investigating officer to be sent for FSL examination. PW17, the then Circle Inspector (C.I.), Vellerikundu, the investigating officer, deposed that he had taken over the investigation of the case on 16/04/2013. He had proceeded to the scene of occurrence and prepared Ext.P2 scene mahzar. As per Ext.P2 scene mahazar he had seized MO.1 to MO8, that is, sand; plastic bottle; burnt hair; cloth; burnt mat; a portion of a burnt stone chain; matchstick and a bottle containing kerosene from the scene of occurrence. On 19/04/2014 he had conducted inquest and prepared Ext.P3 inquest report. He submitted Ext.P14 forwarding note for sending the samples collected from the scene of occurrence for FSL examination and Ext.P15 is the report obtained from the FSL. PW5, the nephew of the deceased deposed that he was present when the inquest had been conducted. PW6, another neighbour of the deceased, deposed that he was present when PW17 had seized MO.1 to MO.8 and that he is an attestor to Ext.P2 scene mahazar. He also deposed that he is an attestor to Ext.P3 inquest report prepared by PW17. Ext.P15 report says that the presence of kerosene was detected in the material objects that were forwarded for examination and that item no.5, which is a plastic bottle of 1 litre capacity, contained kerosene. The aforesaid evidence which has not been discredited in any way would establish that Karthiyayani died due to the burns sustained in the fire caused by kerosene.

Now coming to the question whether it was the accused who had set Karthiyayani ablaze. The place of occurrence is stated to be house bearing no. V/75 (VI/473) situated in Eleri Panchayat. According to the prosecution the deceased and the accused after their marriage had been residing in the said house. PW12, the then Village Assistant, Village Office, West Eleri prepared Ext.P7 site plan. PW13, the then Secretary, West Eleri grama panchayath deposed that as requested by the investigating officer in this case he had issued Ext.P8 ownership certificate as per which the building referred to in the certificate belongs to the accused. Ext.P8 is apparently not admissible in evidence as it is hit by the bar contained under Section 162 Cr.P.C. (See Sasi v. State of Kerala, 2019 KHC 465). However, the fact that the scene of occurrence is the residence of Karthiyayani and the accused and that the house belongs to the accused is not disputed by the accused. Therefore the scene of occurrence also stands established.

Ext.P1 FIS was given by PW1, the brother of the deceased. Ext.P1 FIS was recorded on 15/04/2014 at 18:45 hours by PW15, the then ASI, Vellerikundu police station who registered Crime No.192/2014, i.e., Ext.P1(a) FIR, alleging commission of the offences punishable under Sections 498A and 307 IPC. According to PW17, when Karthiyayani succumbed to the injuries, he submitted Ext.P12 report for deleting Section 307 IPC and incorporating Section 302 IPC. In Ext.P1 PW1 states thus – Karthiyayani and her husband, the accused herein, were residing near his house. They have a 13 year old daughter (PW3). Karthiyayani is a coolie worker. The accused does not go for work regularly. His sister used to come to his house daily. His sister had told him that on all days the accused after drinking, comes home and physically assaults her. She said that when the accused comes home drunk, he used to threaten her that she would be murdered by setting fire to her after dousing her with kerosene. Yesterday, i.e., on 14/04/2014, he heard a commotion from the house of his sister. When he along with his brother went there, they saw a crowd in front of her house. When they entered the house and looked, they saw Karthiyayani lying on the floor of the kitchen with burns all over her body. There was smell of kerosene in the room. Karthiyayani was taken to the District Hospital, Kanjangad, and thereafter to the Medical College Hospital, Pariyaram, where she is under treatment. The accused on several occasions has physically assaulted his sister. Two to three times complaint was also given to the police. The accused is involved in other crimes also. He was with his sister at the hospital and hence the delay in giving the FIS.

11.1. PW1 when examined stands by his version in Ext.P1 FIS. PW1 deposed that while Karthiyayani was being taken to the hospital, she had asked for water. He did not ask her anything. From the scene, burnt cloth, match-stick, a jar containing kerosene, burnt part of a chain etc. had been seized. The accused had liquor, using the money obtained from the sale of coconuts. The accused was angry with Karthiyayani as she refused to give him money for buying liquor. In the cross-examination PW1 admitted that he had not seen the accused setting fire to Karthiyayani. According to him, PW3, the daughter of Karthiyayani was present in the house at the time of the incident. His sister had told him that the accused used to regularly assault her. PW1 denied that Karthiyayani was depressed due to this. His sister had never told him that she does not want to live. She was not conscious. On the way to the hospital, his sister never spoke. She had only asked for water. PW2 had never told him that Karthiyayani had spoken to the former. On the date of the incident, the accused was present at home from morning. PW3 had told him that no food had been cooked in the house on the said day. Normally, his sister sleeps in the kitchen. He denied the suggestion that his sister had committed suicide as she was depressed.

11.2. PW2 another brother of the deceased, supports the prosecution story and the version of PW1. But he has a case that while Karthiyayani was being taken to the hospital, she had told him that the accused had doused her with kerosene and set her ablaze. In the cross-examination PW2 deposed that his sister was conscious while being taken to the hospital and that she had spoken on the journey and that PW1 and others had also heard her speaking. When his attention was drawn to the fact that this aspect was missing in his statement to the police, he answered that he does not have anything to say. He also deposed that during day time he had seen the accused and that after the incident, he did not see the accused. PW2 admitted that his sister was depressed/sad (ച ച ക  മച വ ഷമ ഉണയ ര ന  ). He denied the suggestion that his sister had committed suicide as she was depressed.

11.3. PW3, the daughter of the deceased and the accused, deposed that her father had set fire to her mother in the kitchen of their house. She had gone to the house next door at 09:00 p.m. for watching T.V. Hearing a scream (  ലവ ള ), she rushed back to her house. She saw her mother burning. Her father was present there. When she tried to douse the fire, her father drove her away and said leave her to die (ഞൻ ത  ക ട തൻ ച ക യച ൾ അചൻ എചനട  അവ കട   ടന   വക# എന  പറഞ  ഓട ച....  Page 2 of her deposition). When PW4 and her children tried to douse the fire, her father did not allow the same also. PW1 and PW2 came and doused the fire. Her father and mother had quarreled on the said day also. The egg that was kept by her mother for hatching was taken away by her father which was objected to by her mother. This resulted in a quarrel between the two. PW3 deposed that her father on coming home, beats her as well as her mother. On an earlier occasion, her father had beaten her mother on the head and injured her. As there was no rice at home, no food had been cooked on the said day. On the date of the incident, which was Vishu, her father bought liquor, sat in the verandah of the house and consumed it. She had gone to watch crackers being burst behind her house. At that time her parents were at home. She had given a statement before the magistrate. Her father after consuming liquor, had set her mother ablaze. On earlier occasions, her father used to threaten her mother that he would set her ablaze after dousing her with kerosene. PW3 in the cross-examination deposed that her parents sleep in the bedroom and she sleeps in the kitchen. At 06:00 p.m. she had gone to watch crackers being burst. When she returned, there was no issues at home. At that time her mother was lying in the kitchen as her father had beaten her. In the morning, her father after taking liquor, had beaten her mother. On the date of the incident, her mother was really worried/sad. Before she reached the house on hearing her mother's cry, nobody else had reached there. It was only her father who was present there. After she reached her house, children who were bursting crackers also came. The children had arrived after the fire had been doused. The sisters of her father had also come. When she along with her father's sister tried to douse the fire, her father did not allow the same. On the said day she had gone to watch T.V. by 08:30 p.m. By 08:45– 09:00 p.m., she had heard her mother screaming. PW3 admitted that in her statement to the magistrate, she had not stated that the incident had taken place at 09:30 p.m. On the date of the incident, her father was at home. The kerosene brought by her mother had been poured into a bottle. There was 5 ltrs of kerosene at home. When the fire was doused, her mother was unconscious. After the incident, her father was not to be seen in the house. She had no ill-feelings against her father. PW3 denied the suggestion that she was deposing falsehood as she was upset with her father and that her mother had committed suicide as her mother was depressed.

11.4. PW16, the magistrate who had been authorised by the then CJM, Kasaragode, to record the 164 statement of PW3, deposed that he had recorded Ext.P9 statement of PW3. PW16 deposed that in Ext.P9 statement, PW3 has stated that her father was present in the kitchen ; that her father had not attempted to douse the fire and that when she with a towel had tried to douse the fire, her father had pushed her away.

11.5. PW4 is the sister of the deceased and the wife of the brother of the accused. PW4 deposed that her sister Karthiyayani died due to the burns sustained by her. It was the accused, her sister-Karthiyayani and PW3 who were residing in the house. She is residing near their house. The daughter of the accused's sister called her and told her that something untoward had happened in the house of the accused. When she reached the house, she saw Karthiyayani lying on the floor of the kitchen with burns. She saw CW4 Kammadathi pouring water on Karthiyayani. The accused was present there. The accused after drinking, used to assault her sister. On 14/04/2014, there was quarrel between the accused and her sister. She had heard the accused abusing her sister. The accused tried to take away the eggs kept for hatching. This led to the quarrel. According to PW4, it was her sister who used to look after the affairs of the house. On the date of the incident the accused had consumed liquor. The accused had purchased liquor with the money obtained from the sale of coconuts from the trees in the property. PW4 denied having stated to the police that when she and others tried to douse the fire, the accused had prevented them. In the cross examination PW4 deposed that her sister occasionally used to have a drink. On the date of incident also her sister had consumed liquor.

11.6. PW5 and PW6 neighbours of the deceased, also support the version of the other prosecution witnesses. PW6 deposed that on most of the days there would be quarrel between Karthyayani and the accused. In the cross examination, PW6 also deposed that Karthyayani used to occasionally take liquor.

It was submitted by the learned counsel for the accused that the evidence on record is totally unsatisfactory to find the accused guilty of the offence alleged against him. There are several inconsistencies, improvements and embellishments in the testimony of the witnesses. Evidences has come on record that the deceased was depressed and that she also used to consume liquor. Therefore, the possibility of Karthiyayani committing suicide in such a state of mind cannot be ruled out as it has come on record that the accused was in habit of regularly physically assaulting her after coming home drunk. It was Karthiyayani who was looking after the affairs of the home. The accused never used to look after the affairs of the home. Therefore, there was every possibility of Karthiyayani committing suicide. Admittedly there is no direct evidence to show that it was the accused who had set Karthiyayani ablaze. In case of circumstantial evidence, all the links in the chain of circumstances will have to be proved by the prosecution and the materials before the court must unerringly point to the guilt of the accused. In the present case, the prosecution has failed in establishing all the links in the chain of circumstances. Hence, the argument advanced is that the accused is entitled to an order of acquittal.

12.1. Per contra, it was submitted by the learned Public Prosecutor that evidence of PW3, the daughter of the deceased, alone is sufficient to clinchingly establish the guilt of the accused. The testimony of PW3 coupled with the conduct of the accused in making no attempts to douse the fire or take his wife to the hospital are sufficient indications pointing towards his guilt. The fact that he was very much present in the house when the incident took place has been established beyond doubt and hence the accused, the husband of the deceased, was duty bound to explain how his wife had sustained the burn injuries. The accused has denied the entire prosecution case and set up a story that he was not present in the house at the time of the incident, at which time he claims to have gone to a shop nearby. This version of the accused has been proved wrong by the testimony of the prosecution witnesses. This false answer given by the accused is yet another link in the chain of circumstances established by the prosecution to prove the guilt of the accused, argues the prosecutor.

It is true that there are inconsistencies in the testimony of PWs1 and 2, the brothers of the deceased. PW2 has a case that their sister Karthiyayani spoke to him while being taken to the hospital and had told him that the accused had set fire to her. PW2 has also a case that this was heard by PW1 and others. However, PW1 has no such case. PW2 had nothing to say when his attention was drawn to the fact that he had omitted to say so to the police. This is a crucial omission amounting to a contradiction which has been proved through PW17, the investigating officer who admitted that PW2 had never stated so to him. Hence this part of the testimony of PW2 that Karthiyayani had told him that it was the accused who had set her ablaze cannot be believed. However, that does not mean that his entire testimony is to be disbelieved. Except the said statement of PW2, all the other facts deposed by him are corroborated by the testimony of other witnesses. The credit of PW2 has not been shaken to the point of disbelief. It is true that courts have to be careful when dealing with oral evidences and to avoid acting upon any treacherous testimony resulting in miscarriage of justice. But we cannot push these frailties to a point where every witness should be discredited as untrustworthy merely because there is some discrepancy or taint. The maxim falsus in uno, falsus in omnibus (false in one thing, false in every thing) is neither a sound rule of law nor a rule of practice. Hardly does one come across a witness whose evidence does not contain a grain of untruth or at any rate, exaggerations, embroideries or embellishments. Confronted with such situations, the court has to scrutinize the evidence placed before it and try to separate the grain from the chaff as best as it may. If the basic fabric of the prosecution case is sound, on these testes the story must be believed. (See Ugar Ahir v. State of Bihar, AIR 1965 SC 277 and Sivaprasad v. State of Kerala, 1969 KHC 181). PWs1 to 3 are seen extensively cross examined. Though PW4 is partially hostile to the prosecution case, she admits the presence of the accused at the spot. Therefore we find no reasons to disbelieve them.

It was further pointed out by the learned defence counsel that PW3 in her statement to the magistrate had never stated that when she attempted to douse the fire her father had said - “leave her to die”. (….അവ കട   ടന   വച#......) This according to the learned counsel is a substantial improvement made by the witness in the box and therefore, her testimony is suspect. We have already referred to the testimony of PW3 as well as the testimony of PW16, the magistrate who recorded Ext.P9 statement of PW3. No contradictions or omissions have been brought out in the statement given by PW3 to the magistrate. PW16 has deposed that in Ext.P9, PW3 had infact stated that when she attempted to douse the fire with a towel, the accused had pushed her away. Ofcourse she may not have stated the other part of the statement made by her father saying that let her mother die. That itself is not sufficient to doubt her testimony. The dictum in Ugar Ahir and Sivaprasad (Supra) is applicable here also.

Therefore, the testimony of all the prosecution witnesses when read as a whole shows the presence of the accused at the house when Karthiyayani was burning and also the presence of kerosene at the spot. No attempt whatsoever was made by the accused to douse the fire. He also made no attempts to take his wife to the hospital. The explanation given by the accused that he was absent from the scene of occurrence has turned out to be false. This is an additional link in the chain of circumstances established by the prosecution. Hence we find that all the links in the chain of circumstances leading to the death of Karthiyayani has been established and the circumstances unerringly point to the guilt of the accused. The act of the accused in setting fire to his wife would certainly be an act coming under firstly of Section 300 IPC. We do not find any infirmity in the impugned judgment.

In the result, the appeal is found to be without any merits. Hence the same is dismissed.

Interlocutory applications, if any pending, shall stand closed.