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Dying declaration enough to prove guilt of accused: Kerala High Court

The Kerala High Court, while pondering over the admissibility of dying declarations, ruled that consistent dying declarations, if found to be very reliable, provides credence to each other and proves the guilt of the accused.

The Division Bench of Justice Vinod K Chandran and Justice Ziyad Rahman passed this order on Wednesday, while hearing a Criminal Appeal filed by Thankappan Achary.

The appeal was filed by the applicant being aggrieved by the conviction and sentence imposed upon him by the Sessions Court for the offences punishable under Section 302 IPC. The sentence imposed upon him is imprisonment for life and a fine of Rs 50,000 with a default sentence of rigorous imprisonment for one year.

The prosecution case is that the appellant is the elder brother of the husband of the deceased. He is residing at a portion of the residential building, in which his brother also resides with a family consisting of his wife and two children. The property as well as the house situated therein were in the name of the mother of the brothers. The relationship between the appellant and the deceased was not at all cordial and there used to be frequent squabbles between them. Because of such quarrels, the appellant used to cook his food separately.

Even though both the parties were residing in two portions of the very same house, there was only one electricity connection and the charges were being shared by both. In the bill issued by the Kerala State Electricity Board (KSEB) for the month of June 2014, there was a steep increase in the electricity charges, which prompted the deceased to submit a complaint before KSEB.

In pursuant to the complaint, the officers of KSEB came to the premises and tested the meter. But they could not find any defect in the meter and according to them the increase in the bill was due to high consumption.

The deceased maintained that the increase in consumption was due to the higher consumption of electricity by the appellant and she questioned the appellant about the same, which resulted in a verbal altercation between the parties, on June 15, 2014. The appellant countered her allegations by stating that it was due to the consumption of electricity by the deceased and her family.

He also accused the deceased of selling LPG cylinders to other persons. On the very same evening, when the son of the deceased came to the house from his office, the deceased told him about the above incident. Immediately, her son went to the appellant and questioned him about this incident and it resulted in a scuffle between the parties during which, the son of the deceased also inflicted two blows upon the appellant.

On the morning of July 16, 2014, the husband of the deceased returned from duty as a Security staff in a private establishment and the deceased served breakfast to him. Even at that time there were some verbal exchanges between the appellant and the deceased. While the husband of the deceased was sitting inside the house, he heard the cry of the deceased from the veranda of the house. He ran out and found the deceased engulfed in flames, on the steps of the house, at around 9.45 A.M. Immediately he covered her with a sack to douse the fire.

The appellant was also present at the scene of occurrence at the relevant time. Even though she was immediately taken to the Taluk General Hospital initially and later to the Medical College Hospital, Thiruvananthapuram, she succumbed to the injuries at 5.45 a.m. on July 17, 2014. According to the prosecution, it was the appellant, who committed the homicide of the deceased by setting her ablaze after pouring kerosene over her body.

The Counsel for the appellant submitted that the conviction and sentence imposed upon him is without any basis as the prosecution failed to establish his guilt. He points out that the case of the prosecution is full of contradictions. The charge itself is defective, since it is not in the form as prescribed in Section 211 CrPC; it does not mention the name of the offence charged against him, which is a mandatory requirement, contends the Counsel.  The appellant was found guilty by mainly relying upon the dying declarations, which were not reliable.

The Court said that the Counsel for the appellant strongly relies on the evidence who is none other than the husband of the deceased and the younger brother of the appellant, who was declared hostile by the prosecution as he exculpated the appellant by stating that it was a case of suicide. Based on the above contentions, he sought to set aside the conviction and sentence imposed by the Sessions Court.

The Special Government Pleader contended that the prosecution successfully established the guilt of the accused and the contentions raised by the appellant are only to be rejected.

According to the Special Government Pleader, the dying declarations relied on by the prosecution were genuine and reliable as the same were made by the deceased, when she was in a proper and fit state of mind.

With regard to the contentions of the Counsel for the appellant as to the defective charge, the Special Government Pleader pointed out that the said contention was not legally sustainable as the brief summary of the prosecution case, and the offence constituted by such acts, along with the provision of the offence charged with, were clearly described in the charge framed by the Sessions Court and merely because of the reason that the charge did not name the offence, it cannot be treated as vitiated.

The Court further said that the appellant does not have a case that he suffered any prejudice on account of non-mentioning of the name of the offence in the charge. She seeks dismissal of the appeal in the above circumstances.

The Court observed that from the reading of the above provision, it was evident that no finding or sentence shall be invalid merely because of any error or omission which does not result in failure of justice. In this case, going by the contents of the charge, it is evident that a specific description of the offence committed by the appellant has been clearly mentioned. The offence is not mentioned as ‘murder’ but ‘causing death with intention to do so, is the charge’, which is the offence of murder as defined under Section 300 and punishable under Section 302 IPC. Section 302 IPC is also specifically mentioned in the charge.

The contention of the Counsel for the appellant that the charge is defective hence, cannot be accepted. Further, as per section 464 of Cr.P.C, unless the omission resulted in failure of justice, such defect would not have any impact on the conviction, since here there cannot be alleged any ambiguity in the charge or the accused not being made aware of the exact offence he is charged with. The charge is very specific and contains a precise description of the acts/offences for which he is being prosecuted. It is also a crucial matter to be noted in this regard that, the appellant does not have a case that, non mentioning of the name of the offence resulted in any miscarriage of justice or prejudice to him.

The Court further observed that, from the nature of the contest made by the appellant before the Sessions Court and also before this court, we are unable to find any instance of failure of justice as far as the appellant is concerned, due to the non-mentioning of the name of the offence in the charge. The said objection is only to be disregarded, as it is only a hyper technical objection without any prejudice being discernible or even argued and hence we have no hesitation in rejecting the contentions of the appellant in this regard.

The Counsel for the appellant also relied on the recovery of MO4 bottles with kerosene. He contends that, as per seizure mahazar, a bottle of kerosene filled to half, was recovered from the scene and the bottle was closed when it was recovered.

According to the Counsel, the bottle being in a closed state is highly improbable as no one would care to close the bottle and keep it there, after pouring kerosene over the body of a person and setting her ablaze.

The Court does not find any substance in the argument since there can be no presumption that after setting a person ablaze the perpetrator would not close the bottle. Human behavior is complex and we cannot oversee with precision, as to the actions of a person in such a situation and no definite conclusion can be arrived at. Responses would vary from person to person and no assumption in respect of the same is possible. One person may go about a crime in a haphazard manner while another may act with definite deliberation and execution.

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Apart from the above, the counsel for the appellant tried to attack the prosecution by stating that, no attempt has been made to ascertain the source of kerosene and to ascertain whether it was procured by the appellant. However, kerosene being a household article, we do not think that the same is an omission at all, the Court said.

The Court stated that, it is evident from the records that, the appellant was cooking his food separately for which he was maintaining a kitchen. Of course, if the source of the same was traced out, certainly it would have been a crucial piece of evidence, but in our view, absence of investigation on this aspect is not sufficient to exculpate the appellant, particularly when there is overwhelming evidence for his inculpation.

“In such circumstances, the only conclusion possible is that the death of the deceased was a homicide and it was the appellant who committed the said brutal act as put forward by the prosecution. We find no reason to interfere with the findings of the Sessions Court. Accordingly, this appeal is dismissed and the conviction as well as sentence imposed by the Sessions Court is confirmed,” the Court ordered.

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