JOSE S/O EDASSERY THOMASversusSTATE OF KERALA

                        [2013) 5 S.C.R. 1154


A                JOSE S/O EDASSERY THOMAS
                                  V.
                        STATE OF KERALA
                 (Criminal Appeal No. 234 of 2010)
                           MAY 22, 2013
B
         [DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.]

       Penal Code, 1860 - s.302 - Murder of wife - By setting
  her on fire, while she was sleeping - Circumstantial evidence
C - Conviction by courts below - Held: The cumulative effect
  of the evidence viz., the conduct of the accused, dying
  declaration and the motive proves the guilt of the accused -
  The chain of circumstances exclusively leads towards the
  accused and none else - Conviction upheld.
D
       Dying declaration - Acceptance of - Plea that in view of
  92% burn injuries, dying declaration of deceased not
  acceptable - Held: There is no thumb rule that a person
  sustaining a particular percentage of bum injuries would not
E be in a position to give dying declaration - In the instant case,
  evidence proves that the deceased was in a fit state of mind
  while making dying declaration, hence the declaration is
  acceptable.

       The appellant-accused was prosecuted for murder of
F his wife and attempt to murder his grandchild. The
  prosecution case was that the deceased being 52 years
  of age, was not capable of satisfying the lust of the
  accused and that he also suspected his wife having illicit
  relations with their son-in-law. The accused killed his wife
G by pouring petrol on her, while she was sleeping. She
  gave dying declaration to the doctor, who was attending
  her, implicating the accused. Trial court convicted the
  accused u/s 302 and 307 IPC and awarded life
  imprisonment. High Court confirmed the conviction and
H                                1154
   dOSE. S/O EDASSERY THOMAS v. STATE OF              1155
         -        KERA LA

sentence uls 302 IPC. However, he was acquitted u/s 307        A
~P_C.--Hence,-ihe present appeal.

    Dismissing the apj)eCll, the Court
    HELD: 1. The cumulative effect of the evidence
clearly proves the gui~t of the accused and the chain of       B
circumstances exclusively leads towards him and none
else. [Para 14] [1164-H; 1165-A]
     2. The evidence on record indicate that the deceased
was conscious and h~nce, her dying declaration is              C
acceptable which would reveal the cruel treatment meted
out by the husband to the wife, the suspicion harboured
by him and the threats given. True it is, she had stated
that she had suspected that her husband might have set
her ablaze but to prove the said aspect, there are
numerous circumstances which the trial court as well as        D
the High Court have taken into consideration. On a
perusal of the evidence on record, it is manifest that PW-
1 (the doctor) clearly stated that he had recorded the
dying declaration. It has come out in the evidence that the
deceased was conscious and her mind was well-                  E
oriented. Other witnesses have also deposed that she
was in a fit state of mind. The medical report produced
by the hospital also reflects that she was conscious and
oriented. She was given a pain killer injection. That apart,
there cannot be any thumb rule that a person sustaining        F
a partk:ular percentage of burn injuries would not be in
a position to give any declaration. [Paras 11 and 12]
[1162-F-H; 1163-A, G-H; 1164-A-B]
     Laxman vs. State of Maharashtra (2002) 6 SCC 710 -        G
followed.
    Babu Lal and Ors. vs. State of Madhya Pradesh AIR
2004 SC 846:2003 (5) Suppl. SCR 54; State of Madhya
Pradesh v. Dal Singhand Ors. 2013 (7) SCALE 513 - relied
on.                                                            H
    1156   SUPREME COURT REPORTS              [2013) 5 S.C.R.


A       3. The circumstances which lead singularly to the
  guilt of the accused are that the accused was sleeping
  in the bed room and it was a small house; that the bed
  room was not having any shutters; that PW-3 (the
  daughter of the deceased and accused) woke up on
B hearing the cries of the deceased; that the accused had
  purchased petrol from the petrol pump belonging to PW-
  5 in a bottle; that Ext. P-15, Chemical Analysis Report, has
  clearly mentioned that kerosene was not detected in any
  of the material objects sent for chemical analysis; that the
c accused was seen running away from the house by PW-
  3 and PW-7; that it has been clearly deposed by PW-3 that
  the accused used to demand that mother should sleep
  with him, but she could not oblige him; and that he had
  threatened to kill her. The elder daughter has deposed
  that the father was doubting the husband of PW-3 to have
0
  illicit relationship with the mother. PW3had also deposed
  that the deceased was 52 years of age and was infirm
  and not in a position to cater to the desire of her husband
  (i.e. the accused). All these circumstances appreciated in
E the context of the dying declaration, clearly establish the
  involvement of the accused in causing burn injuries on
  the deceased. [Para 12] [1164-B-F]
       4. The conduct of the accused is also worth noting.
  After escaping from the house, he had surrendered at the .
F police station. In his statement under Section 313, Crl.
  P.C., he has stated that he tried to save his wife, but no
  burn injuries were found on his body. Though he had
  taken the plea of accidental fire, yet it has clearly been
  established by the medical evidence that the possibility
G of causing burn injuries from a small kerosene lamp is
  impossible. Therefore, it is evident that the accused has
  given false statement. [Para 13) [1164-F-G]


H
    JOSE S/O EDASSERY THOMAS v. STATE OF                    1157
                  KERA LA

                      Case Law Reference:                            A
    (2002) s sec 11 o             followed              Para 10
    2003 (5) Suppl. SCR 54        relied on             Para 11
    2013 (7) SCALE 513            relied on             Para 11
                                                                     B
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 234 of 2010.

    From the Judgment and Order dated 17.09.2008 of the
High Court of Kerala at Ernakulam in Crl. A. No. 280 of 2005.        c
    Kamal Mohan Gupta (A.C.), Sanjeev Kumar, Mohd. Zahid
Hussain for the Appellant.

     Jogy Scaria for the Respondent.
                                                                     D
     The Judgment of the Court was delvered by

      DIPAK MISRA, J. 1. The present appeal depicts a
gruesome and repulsive picture that paints the appellant
justifiably as the cruel protagonist who, invaded by passion of
an uncultivated mind, insatiated by sexual desire and a further      E
sense of suspicion that leads one into the realm of the worst,
 committed an act of unthinkable depravity. The ghastly act here
 is the murder of wife. In fact, the accused-appellant, as the
 prosecution story would reveal, was not only driven by the fierce
frenzy of passion but also his rational thinking had been totally    F
 darkened. In the ultimate eventuate, consumed by the fire and
 ire of anger, he burnt his wife to death. He might have thought
 that he would bring an end to the anarchy in his house but his
 uncontrolled act ushered in anarchy of the darkest hour in his
 own life. The result is the conviction under Sections 302 and       G
 307 of the Indian Penal Code (for short "IPC") and s13ntence
for life and rigorous imprisonment for three years on both the
counts by the learned trial Judge in S.C. No. 169 of 2004 which
 has received the stamp of approval by the High Court of Kerala
 in respect of conviction under Section 302 IPC vide judgment        H
    1158    SUPREME COURT REPORTS                [2013] 5 S.C.R.


A   dated 17.9.2008 in Criminal Appeal No. 280 of 2005. Hence,
    the present appeal by special leave.

         2. The prosecution case as uncurtained is that the accused
  was living with the deceased, and their daughter. PW-3, and
  son-in-law, PW-5, along with their two grand children. The
8
  accused harboured a suspicion that his. wife was having an
  illicit relationship with the son-in-law. The said suspicion got
  aggravated and intensified due to non-cooperation of the wife
  to satisfy his lustful hunger for sex. The uncontrolled sensual
  desire was further inflamed by the seed of suspicion that he
C himself had planted in his heart and nurtured relentlessly in his
  mind., The ablaze of anger led him, in the early hours of
  23.12.2002, to pour petrol and set his wife on fire. The
  horrendous act resulted in the tragic incident. She suffered 92%
  burn injuries and was taken to Jubilee Mission Hospital,
D Thrissur about 3.40 a.m. on that day where she succumbed to
  the injuries at 2.15 p.m. on 24.12.2002.

       3. It is worthy to mention here that after the incident, the
  accused surrendered at Thrissur Town West Police station in
E the early morning of 23.12.2002 and narrated the incident to
  the police. The Thrissur Town West Police Station informed the
  incident to Anthikkad Police Station. The Head Constable of
  Anthikkad Police Station went to the Jubilee Mission Hospital
  and there the dying declaration, Ext. P-3, of the deceased was
F recorded by the doctor, PW-1, working in the Jubilee Mission
  Hospital. Initially, the daughter of the deceased, PW-3, had
  lodged an FIR, Ext.P-14, and a crime was registered by the
  ASI for the offence punishable under Section 307 IPC and the
  allegation was that the accused had attempted to commit the
G murder of his wife as well as that of his grand child. The said
  crime was registered by the Assistant Sub-Inspector, PW-15.
  Later on, after the death of the deceased, Section 302 IPC was
  added as per the report contained in Ext.P-16. The accused
  was arrested on 24.12.2002. The initial Investigating Officer
  prepared the scene mahazar, conducted the inquest and
H
   JOSE S/O EDASSERY THOMAS v. STATE OF                     1159
           KERALA [DIPAK MISRA, J.]

prepared the report, recorded the statement of the witnesses A
and, thereafter, his successor-in-office, PW-17, completed the
investigation and placed the charge sheet before the Judicial ·
First Class Magistrate, Court II, Thrissur, who committed the
case for trial to the Court of Session. It was eventually tried by
the learned Ill Additional Sessions Judge (Ad hoc) Fast Track B
Court No. I, Thrissur.

     4. The accused pleaded innocence and claimed to be
tried.

      5. The prosecution examined 18 witnesses and brought C
Exhibits P-1 to P-23 on record. Material objects M0-1 to M0-
5 were marked at the instance of the prosecution. The accused,
in his examination under Section 313 of Code of Criminal
Procedure (for short 'The Code'), denying the circumstances
against him filed a statement stating that the burn injuries on D
his wife were caused by an accident. His version was that his
wife used to sleep, keeping a burning kerosene lamp by her
side, and on the fateful day, she accidentally received burn
injuries from the said lamp. When the accused attempted to
save her life and take her to the hospital, his $on-in-law drove E
him away and later when he was on his way to the hospital, he
was arrested by the police.

    6. The learned trial Judge, after considering the rivalised
submissions and appreciating the evidence brought on record,
found that the appellant was guilty of the offences punishable       F
under Sections 302 and 307 IPC and sentenced him as has
been mentioned earlier.

     7. The High Court, analysing the evidence on record,
considering the reliability. of Ext. P-3, the dying declaration of   G
the deceased, that has been recorded by PW-1, the doctor,
taking note of the motive behind the crime, appreciating the
conduct of the accused at the time ofthe crime, scanning the
testimony of the daughters of the deceased and weighing the
strained relationship between the accused and the deceased           H
    116_0   SUPREME COURT REPORTS                [2013) 5 S.C.R.


A and the other circumstances, found that the accused was guilty .
  under Section 302 of IPC and, accordingly, it affirmed the
  conviction under Section 302 of IPC but acquitted him of the
  offence under Section 307 IPC on the ground that ther~ was
  no evidence on record to prove his attempt to commit the
B murder of his grand child.

        8. Mr. Kamal Mohan Gupta, learned amicus curiae, has
  submitted that the whole case is based on suspicion and there
  is no concrete evidence to implicate the accused in the crime
C in question. l~is urged by him that there has been collusion
  between the son-in-law and the daughter to rope him in the
  crime and hence, lhe concurrent findings should be treated as
  perverse and the judgment of conviction should be set aside.
  It is also contended by Mr. Gupta that the dying declaration
  could not have been placed reliance upon, regard being had
D to the nature of burn injuries and further the circumstances have
  been given undue weightage by the trial Court as well as the
  High Court which they do not deserve.

       9. Per contra, Mr. Jogy Scaria, learned counsel appearing
E for the State, submitted that the Courts below have
  microscopically analyzed the evidence on record and nothing
  has brought on record to discard the testimony of the witnesses
  treating them as untrustworthy. He has placed heavy reliance
  on the dying declaration and the other circumstances including
F the conduct of the accused.

       10. First, we shall consider whether the dying declaration
  recorded by the doctor should be accepted or it is so
  improbable that it deserves to be thrown overboard. The dying -
  declaration was recorded by PW-1at8.15 A.M. on 23.12.2012
G when the deceased was in the ICU in the Burns Ward. The -
  doctor, a plastic surgeon, has signed the dying declaration, Ext.
  P-3. In the dying declaration, the deceased had stated that on
  the date of the incident, there was a quarrel between her and
  her husband alleging that the deceased was having illicit,
H relationship with her son-in-law and he had threatened to kill
     JOSE S/O EDASSERY THOMAS v. STATE OF                     1161
             KERALA [DIPAK MISRA, J.]

 heL She had clearly stated that her husband was running away          A
 and it is he who might have set fire on her. The concerned
.do¢tor, in his cross-examination, has stood embedded in his
 st~nd that the state of mind of the injured was absolutely clear
 and she was speaking fluently. She had denied 'the suggestion
 of the defence that because of the 92%.of the burn injuries, the      B
 patient may not be conscious. It is not dispute~ that the doctor
 had not endorsed about the condition of the;'.,.declarant of the
 dying declaration. In this context, we may refer with profit to the
 decision in Laxman v. State of Maharashtra 1 wherein the
 Constitution Bench, while dealing with the co_ncept of dying          c
 declaration, the fitness of mind and the necessity of
 endorsement by Doctor, has stated thus: -

      "The situation in which a man is on the deathbed is so
      solemn and serene, is the reason in law to accept the
      veracity of his statement. It is for thiS reason the D
      requirements of oath and cross-exa·mination are
      dispensed with. Since the accused has no power of cross-
      examination, the courts insist that the dying declaration
      should be of such a nature as to inspire fulf. confidence of
      the court in its truthfulness and correctness. The court, E
      however, has always to 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 F
      identify the assailant. Normally, therefore, the court in order
      to satisfy whether the deceased was in a Jit mental
      condition to make the dying declaration looks up to· the
      medical opinion. But where the eyewitnesses state that the
      deceased was in a fit and conscious state to make the G
      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."
1.   (2002) s sec 110.                                                 H
    1162      SUPREME COURT REPORTS                [2013] 5 S.C.R.


A        11. In Babu Lal and others v. State of Madhya Pradesh 2,
    while dealing with the value of dying declaration in evidence,
    this Court has observed thus:-

         "A person who is facing· imminent death, with even a
         shadow of continuing in this world practically non-existent,
B
         every motive of falsehood is obliterated. The mind gets
         altered by most powerful ethical reasons to speak only the
         truth. Great solemnity and sanctity is attached to the words
         of a dying person because a person on the verge of death
         is not likely to tell lies or to concoct a case so as to
c        implicate an innocent person. The maxim is "a man will not
         meet his maker with a lie in his mouth" (Nemo moriturus
         praesumitur mentire). Mathew Arnold said, "truth sits on
         the lips of dying man". The general principle on which the
         species of evidence is admitted is that they are
D        declarations 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 mind
         induced by the ·most powerful consideration to speak the
         truth; situation so solemn that law considers the same as
E        creating an obligation equal to that which is imposed by a
         positive oath administered in a court of justice.

       In the case at hand, the deceased was taken to the hospital
  with 92% bum injuries. Learned counsel for the appellant would
F submit that a person with 92% burn injuries could not have been
  in a proper state of mind. On a perusal of the evidence on
  record, it is manifest that PW-1 has clearly stated that he had
  recorded the dying declaration, Ext. P-2 at 8.15 P.M.
  23.12.2012. It has come out in the evidence that the deceased
  was conscious and her mind was well-oriented. Other witnesses
G have also deposed that she was in a fit state of mind. The
  medical report produced by the Jubilee Mission Hospital also
  reflects that she was conscious and oriented. She was given
  a pain killer injection. That apart, there cannot be any thumb

H   2.   AIR 2004 SC 846.
   JOSE S/O EDASSERY THOMAS v. STATE OF                       1163
           KERALA [DIPAK MISRA, J.]

rule that a person sustaining a particular percentage of burn          A
injuries would not be in a position to give any declaration.
Recently, in State of Madhya Pradesh v. Dal Singh & Ors., in
Criminal Appeal No. 2303 of 2009, this Court while dealing with
burn injuries, has expressed thus:-
                                                                       B
     "20. Burn injuries are normally classified into three
     degrees. The first is characterised by the reddening and
     blistering of the skin alone; the second is characterised by
     the charring and destruction of the full thickness of the skin;
     and the third is characterised by the charring of tissues         C
     beneath skin, e.g. of the fat, muscles and bone. If a burn
   . is of a distinctive shape, a corresponding hot object may
     be identified as having been applied to the skin, and thus
     the abrasions will have distinctive patterns.

    21. There may also be in a given case, a situation where           D
    a part. of the body may bear upon it severe burns, but a
    small part of the body may have none. When burns occur
    on the scalp, they may cause greater difficulties. They can
    usually be distinguished from wounds inflicted before the
    body was burnt by their appearance, their position in areas        E
    highly susceptible to burning, and on fleshy areas by the
    findings recorded after internal examination. Shock
    suffered due to extensive burns is the usual cause of death,
    and delayed death may be a result of inflammation of the
    respiratory tract, caused by the inhalation of smoke. Severe       F
    damage to the extent of blistering of the tongue and the
    upper respiratory tract, can follow due to the inhalation of
    smoke. (See: Modi's Medical Jursprudence and
    Toxicology by Lexis Nexis Butterworths Chapter 20)."

     12. We have referred to the aforesaid dictum only to show         G
various types and natures of burn injuries. The ample of
evidence on record indicate that the deceased was conscious
and hence, we are inclined to accept the dying declaration
which would reveal the cruel treatment meted out by the husband
to the wife, the suspicion harboured by him and the threats            H
    1164    SUPREME COURT REPORTS                 [2013] 5 S.C.R.


A given. True it is, she had stated that she had suspected that
  her husband might have set her ablaze but to prove the said
  aspect, there are numerous circumstances which the trial Judge
  as well as the High Court has taken into consideration. The
  circumstances which lead singularly to the guilt of the accused
B are that the accused was sleeping in the bed room on the
  eastern side of the room where she was sleeping and it was a
  small house; that the bed room was not having any shutters;
  that PW-3 woke up on hearing the cries of the deceased; that
  the accused had purchased petrol from the petrol pump
c belonging to PW-5 in a bottle; that Ext. P-15, Chemical
  Analysis Report, has clearly mentioned that kerosene was not
  detected in any of the material objects sent for chemical
  analysis; that the accused was seen running away from the
  house by PW-3 and PW-7; that it has been clearly deposed
0 by PW-3, the daughter, that the father used to demand that
  mother should sleep with him, but she could not oblige him; and
  that he had threatened to kill her. The elder daughter has
  deposed that the father was doubting the husband of PW-3 to
  have illicit relationship with the mother. She had also deposed
  that the mother was 52 years of age and was infirm and not in
E a position to cater to the desire of her husband. All these
  circumstances appreciated in the context of the dying
  declaration clearly establish the involvement of the accused in
  causing burn injuries on the deceased.

F      13. Quite apart from above, the conduct of the accused is
  also worth noting. After escaping from the house, he had
  surrendered at the police station. In his statement under Section
  313, Crl. P.C., he has stated that he tried to save his wife, but
  no burn injuries were found on his body. Though he had taken
G the plea of accidental fire, yet it has clearly established by the
  medical evidence that the possibility of causing burn injuries
  from a small kerosene lamp is impossible. Therefore, it is
  evident that the accused has given false statement.

        14. Thus, the cumulative effect of the evidence clearly
H
    JOSE-.S/O EDASSERY THOMAS v. STATE OF                  1165
             KERALA [DIPAK MISRA, J.]

proves the guilt of the accused and the chain of circumstances     A
exclusively leads towards him and none else. The obsession
with the inferior endowments of nature made him to do a totally
insensible act and ultimately, the addiction with the insatiated
desire drove him to become frentic and frenzied to commit the
crime. The lust led him to burn his wife and the result is the     B
commission of offence for murder and the conviction and
sentence of rigorous imprisonment for life which has been
imposed by the learned trial Judge and affirmed by the High
Court. The concurrence by the High Court deserves acceptation
a~~do~.                                                            c
    15. Consequently, the appeal, being devoid of merit, stands
dismissed.

K.K.T.                                      Appeal dismissed.