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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO 234 OF 2010

Jose S/o Edassery Thomas ... Appellant

Versus

State of Kerala ...Respondent

J U D G M E N T

Dipak Misra, J.

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 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  darkened.  In  the

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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 307 of the Indian Penal Code (for short “IPC”) and  

sentence  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  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 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  

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inflamed by the seed of suspicion that he 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, 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 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  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  

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allegation  was  that  the  accused  had  attempted  to  

commit the 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  prepared  the  report,  recorded  the  

statement  of  the  witnesses  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 III  Additional  

Sessions  Judge  (Ad  hoc)  Fast  Track  Court  No.  I,  

Thrissur.   

4. The accused pleaded innocence and claimed to be  

tried.

5. The prosecution examined 18 witnesses and brought  

Exhibits P-1 to P-23 on record.  Material objects MO-1  

to  MO-5  were  marked  at  the  instance  of  the  

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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 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 son-in-law drove 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 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 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  

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the time of the crime, scanning the testimony of the  

daughters of the deceased and weighing the strained  

relationship between the accused and the deceased  

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  there  was  no  evidence on  

record to prove his attempt to commit the 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 in question.  It 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, the 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 to the nature of burn  

injuries  and  further  the  circumstances  have  been  

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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 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 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-1 at 8.15  

A.M. on 23.12.2012 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 relationship with her son-in-law and he  

had threatened to kill  her.   She had clearly stated  

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that her husband was running away and it is he who  

might have set fire on her. The concerned doctor, in  

his  cross-examination,  has  stood  embedded  in  his  

stand  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 patient  

may not  be conscious.   It  is  not  disputed 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 Maharashtra1 wherein the Constitution  

Bench,  while  dealing  with  the  concept  of  dying  

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  requirements  of  oath  and  cross- examination 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 full confidence of the  court  in  its  truthfulness and correctness.  The court, however, has always to be on  

1 (2002) 6 SCC 710

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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  looks  up  to  the  medical  opinion. But where the eyewitnesses 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.”

11. In  Babu  Lal  and  others  v.  State  of  Madhya  

Pradesh2, 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,  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  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  

2 AIR 2004 SC 846

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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  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% burn injuries.    Learned counsel for the  

appellant  would  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 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  rule  that  a  person  sustaining  a  

particular percentage of burn injuries would not be in a  

position to give any declaration.  Recently,  in  State of  

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Madhya  Pradesh  v.  Dal  Singh  &  Ors., in  Criminal  

Appeal  No.  2303 of  2009,  this  Court  while  dealing with  

burn injuries, has expressed thus:-

“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 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 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  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 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).”  

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12. We have referred  to  the  aforesaid  dictum only  to  

show 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 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  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 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  

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was seen running away from the house by PW-3 and  

PW-7; that it has been clearly deposed 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 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.

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 the plea of accidental fire,  

yet it has clearly established by the medical evidence  

that the possibility of causing burn injuries from a small  

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kerosene lamp is impossible.  Therefore, it is evident  

that the accused has given false statement.

14. Thus, the cumulative effect of the evidence clearly  

proves  the  guilt  of  the  accused  and  the  chain  of  

circumstances 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 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 and we do so.

15. Consequently,  the  appeal,  being  devoid  of  merit,  

stands dismissed.     

.…………………………….J. [Dr. B.S. Chauhan]

….………………………….J.                                                    [Dipak Misra]

New Delhi;

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May 22, 2013.                 

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