Chinnamma
Vs. State of Kerala [2004] Insc 113 (24 February 2004)
N.Santosh
Hegde & B P Singh. Santosh Hegde,J.
Appellant
herein was convicted by the Court of Session, Pathanamthitta, Kerala for an
offence punishable under section 302 IPC and was sentenced to undergo
imprisonment for life for having committed the murder of her sister in law by
name Suma Varghese. Her appeal to the High Court of Kerala at Ernakulam having
failed she is before us in this appeal. The facts necessary to be noted for the
disposal of this appeal are as follows :
Deceased
Suma Varghese was the wife of Jose Mathew PW-1 and was residing with her
husband and father in law PW- 2 in Nellickal house. PW-2 father in law of the
deceased had purchased a property which the appellant who was his daughter and
sister in law of the deceased, wanted him to hypothecate to secure a housing
loan for her. It is alleged PW-2 agreed to do so but the deceased objected to
the same. It is because of this reason the appellant, according to the
prosecution, had entertained an ill-will against the deceased. Prosecution
alleges that on 8.7.1989 at about 8.45 a.m. when the deceased was dressed and
ready to go to her mother's house, the appellant came to her house and struck
her on the back of head with a piece of fire-wood because of which the deceased
fell down.
Thereafter
it is alleged the appellant poured kerosene oil on her chest and set her on
fire which caused serious burn injuries. On hearing the alarm raised by the
children of the deceased, PW-2 and others came running and extinguished the
fire, noticing the severe burn injuries suffered by the deceased. She was
removed to the Government hospital at Kanjirappally where the Medical Officer
on duty after giving first aid and noticing the nature of injuries on her body,
referred her to the Medical College Hospital at Kottayam. The prosecution
alleges that while she was in the Medical College Hospital, two dying
declarations of hers were recorded; one by Head Constable Karunakaran Nair,
PW-14 on 10.7.1989 at about 10.45 p.m. and the other by Judicial First Class
Magistrate, PW-8 on 14.7.1989. As per the said dying declarations, the deceased
implicated the appellant as the person who poured kerosene on her and lit the
fire causing her burn injuries. A complaint in this regard was lodged on
10.7.1989 by PW-6 father of the deceased, based on which the investigation was
initiated by the jurisdictional Police and on completion of the same a chargesheet
as against the appellant was filed for an offence punishable under section 302
IPC. Deceased Suma died on 28.7.1989. As stated above, after trial the
appellant was found guilty of the offence charged by the trial court which
finding was confirmed by the High Court.
Mr.
V.B. Saharya, learned amicus curiae appearing for the appellant, contended that
the courts below have erred in placing reliance on the two dying declarations
made by the deceased which when examined in the light of other evidence led by
the prosecution, would clearly go to show that the deceased had implicated the
appellant falsely and her own evidence as corroborated by the other evidence
led in this case, indicates that the deceased had suffered accidental burns and
she had falsely implicated the appellant as the assailant.
Learned
counsel during the course of his arguments, pointed out that there was
absolutely no motive for the appellant to commit such a gruesome crime. He also
pointed out that even according to the entry made by the doctor, PW-11, in the
wound certificate Ex. P-11, deceased had told him that she suffered the burns
accidentally when she was cooking food for the piglings. Learned counsel then
pointed out the discrepancies in the two dying declarations Ex. P-10 and 15. It
is based on the said contradictions in the prosecution case, learned counsel
pleaded that the appellant has been wrongly convicted by the two courts below.
Mr. Ramesh
Babu, learned counsel appearing for the respondent, however, contended that
both the courts below have rightly accepted the prosecution case which is not
only supported by two dying declarations made by the deceased as per Ex. P-10
and 15 but is also supported by other evidence led by the prosecution which
clearly showed that it is the appellant who was responsible for causing the
burn injuries because of the enmity she had with the deceased.
In
this case at the outset it must be noted that there are no eye witnesses to the
incident in question. The prosecution primarily relies on the two dying
declarations made by the appellant and other evidence led in this case to
establish the motive as also the act of the accused causing the death of the
deceased. In this background, we will first consider the two dying declarations
made by the deceased on which both the courts below have placed strong
reliance. The first dying declaration is recorded by the Head Constable of
Police who came to the hospital on being informed about the admission of the
deceased in the said hospital and recorded the statement of the deceased on
10.7.1989 at about 10.45
p.m. In the said dying
declaration the deceased stated that she was married about 2 = years earlier to
PW-1 and was staying in his house and that she had two children. She further
states that the appellant who is the sister of her husband was annoyed with her
because of a property dispute. She then states that on Friday morning
(7.7.1989) she wanted to go to her mother's house hence she told her husband
that she will be going there to which her husband had told her not to go still
she changed her dress to go.
She
further says that at that point of time the appellant came to the house and
asked her "where are you going ?" but the deceased did not reply. She
then proceeds to state that on Saturday (8.7.1989) at about 9 a.m. she got dressed up again to go to her mother's house when
the appellant came inside the house and standing behind her hit her on the back
of her head once and she fell on the floor. She proceeds to state that the
appellant then took the kerosene tin which was kept in the room and poured it
on her chest. When she felt heat on her chest, she got up and ran outside the
house and fell unconscious in the courtyard. She then states that some people
brought her to the hospital in a vehicle to Kanjirappally hospital. From the
above statement made to the Police Head Constable on 10.7.1989, following facts
can be deduced :
That
on 7.7.1989 when she wanted to go to her mother's house, her husband did not
allow her to go. On 8.7.1989 she still wanted to go to her mother's house, so
she dressed up when she was attacked on the head by the appellant, and then the
appellant took the kerosene oil which was kept in the room and poured it on her
chest. She had not noticed the factum of the appellant setting her on fire and
when she felt heat, she ran outside the house and fell unconscious. She also
remembers having gone to Kanjirappally hospital.
We
will now examine the contents of the second dying declaration Ex. P-10 recorded
by the Magistrate on 14.7.1989.
It
should be noted here that this was a statement recorded about 6 days after the
incident in question during which time she was being looked after in the
hospital by her father and other relatives. This statement of the deceased was
recorded in the presence of the Duty Doctor who had certified her to be
conscious and coherent to give a statement. In this statement which is in the
form of questions and answers, the deceased told the Magistrate that on last
Saturday (8.7.1989), she took food for piglings from the kitchen of her
husband's house, and as soon as she entered the kitchen, she got a beating on
the back of her head. That was by her sister-in-law whose name is Chinnamma.
She then fell down and became unconscious. She then states that while she was
unconscious, the flames started and there was smell of kerosene. To a question
asked by the Magistrate, she states that it was her sister-in-law who beat her therefore,
she suspects that her sister-in-law set her body on fire. While answering a
question as to who all were attending on her, she said that her father, mother,
two brothers, two sisters and her husband were attending on her. In regard to
the reason for the attack, she states that there was some talk that she had
done some evil magic on her husband, therefore, her husband was not loving his
sister (the appellant) after their marriage. A careful consideration of this
dying declaration made about 14 days before her death, shows that in this
statement she states that when she entered the kitchen, she was struck on the
back of her head which she assumes was by her sister-in-law (the appellant).
She then states that she became unconscious thereafter and when she regained
consciousness, she saw flames and smelt kerosene. She also says that she
suspected her sister- in-law of having set her on fire. The motive given for
this attack by the appellant in this dying declaration was that the appellant
had suspected the deceased of having cast certain evil magic on her husband
because of which he stopped loving his sister, the appellant. A comparison of
these two dying declarations, in our opinion, shows certain glaring
contradictions. In the first dying declaration, we have noticed that there was
an incident on the previous day when she desired to go to her mother's house
and got dressed up for the same. Her husband did not allow her to go to her
mother's house. But the next day, when she got dressed again to go to her
mother's house, the appellant came and standing behind her, hit her on the back
of her head when she fell on the floor and she saw the appellant taking
kerosene which was kept in the room and pouring on her chest and thereafter she
felt the heat and ran outside the house and fell unconscious. The factum of she
having seen the appellant taking out the kerosene from the room and pouring the
same on her was not spoken to by her in her second dying declaration.
This
fact has some relevance while appreciating the correctness of the two dying
declarations because if really she was conscious and had seen the appellant
take the kerosene and pouring the same on her, she would not have forgotten to
mention it again in her second dying declaration. Again, while she was certain
that it was her sister-in-law (appellant) who poured the kerosene on her and
set her on fire as per her first dying declaration; in the second dying declaration,
she was not so sure because she says that she only suspected the appellant as
having set her on fire. This is because she had earlier stated in that
statement, she became unconscious when her sister-in- law had hit her on the
head. Even the motives given in the two dying declarations are entirely
different. These contradictions, in our opinion, create grave suspicion in our
minds whether the injury suffered by the deceased was really because of the act
of the appellant or was a figment of the imagination of the deceased. This
suspicion of ours becomes all the more stronger if we notice the evidence of
PW-11 who treated her in the first instance when she was taken to Kanjirappally
hospital. It is seen from the wound certificate Ex. P-11 given by this doctor
that when he examined the deceased for the first time at Kanjirappally
hospital, she stated that she suffered the injury due to accidental burning
while preparing food for the piglings.
This
very important aspect of the case was rejected by both the courts below on the
ground that the entry made in the wound certificate might not have been a
correct entry because the witnesses who took her to the hospital, had stated
that she was not in a fit condition to talk. But then we should remember that
this is an entry made in a document regularly maintained and the doctor had no
reason whatsoever to make an incorrect entry, and no question was asked to this
doctor when he was in the witness box as to the correctness of the entry,
therefore, due weight should be given to the contents of this wound certificate
and the courts below ought not to have rejected the same on the basis of oral
evidence given by certain witnesses. It is also very relevant to mention here
that the deceased was prevented from going to her mother's house by her husband
on 7.7.1989 and the deceased being adamant in spite of protest from her
husband, had decided to go to her mother's house again on 8.7.1989 which
indicates that there may be reasons other than the alleged enmity entertained
by the appellant for suffering by the burn injuries which led to her ultimate
death. From the material on record, we are also unable to find any strong
motive which would have induced the appellant to commit such a heinous crime of
burning her sister-in-law to death. The conduct of the appellant in being
present with the deceased right through the journey to the hospital also
indicates otherwise. There is another important aspect of the case which was
not considered by the two courts below properly i.e. it is the case of the
deceased that she was beaten on the back of her head with a firewood,
consequent to which she fell down and had lost her consciousness. Though during
the course of inquest of the dead body, it was noticed that there was a
contusion on the head, the doctor who examined the deceased before she died as
also the doctor who conducted the post mortem, did not notice any such injury
on the head which indicates that the first part of the attack on the deceased
by the appellant could be concocted. At any rate, the prosecution has failed to
establish the first part of the attack by the appellant on the head of the
deceased. Learned counsel appearing for the State, however, contended that
because of the burn injuries, the doctors might not have noticed the head
injury caused by the attack with a firewood on the head of the deceased. We
have perused the medical report which shows that all the burn injuries suffered
by the deceased were below the neck and on the limbs and so far as the head is
concerned, there was no burn injury. The absence of any injury at the back of
the head of the deceased as also non-recovery of the firewood which was used in
the assault on the deceased indicates that the first part of the dying
declaration is not true. In this background, the second part of the dying
declaration that she fell down and became unconscious also cannot be believed.
These discrepancies would indicate that her statement made to the doctor PW-11
that she suffered burn injuries accidentally while cooking becomes more
probable. Be that as it may, the abovementioned facts create a doubt in our
mind as to the truthfulness of the contents of the dying declaration as also
the possibility of she being influenced by her parents in making the dying
declaration cannot be ruled out.
Having
very carefully perused the material on record, we are unable to come to the
conclusion that the prosecution in this case has established its case beyond
all reasonable doubt to base a conviction on the appellant. Hence, we are of
the opinion that both the courts below have erred in coming to the contra
conclusion.
For
the reasons stated above, this appeal succeeds and the judgment and conviction
recorded by the courts below are set aside. The appeal is allowed. We are told
that the appellant is on bail. If so, her bail-bonds shall stand discharged.
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